a memory I need to talk about

Sometimes I get bogged down with other thoughts on my mind. These thoughts take up the majority of my waking hours and I don’t know why I think about them, constantly.

I have been thinking about this one memory I have and I have been thinking about it since my dad has passed. There is only so much I can recall from this memory.

When I was younger, I used to dance…strip. I started in my hometown of Sault Ste Marie, Ontario. I told my family. In fact, I called them up first to tell them. I had people come up to me to tell me that they heard from their grandmother. “Well, I didn’t see your grandma at work,” I would tell them, and then, I would laugh it off.

At one point, when I was dancing at the local strip club, I moved home. Or, at least, I was staying the night at home. I asked my dad for a ride. When I think back to this moment, I think about how much my dad loved me and how much I put him through. I don’t even know if that is the right way to describe it, put him through.

Home was about 20 minute outside of the city limits. It was a First Nations. So, no cab company would pick up rides from the First Nations going into the city limits and they wouldn’t really drop rides off from the city into the First Nations either. It was either a ride from my parents or a hitchhiking. I have hitchhiked before. So, my parents, especially my father, knew that I would do it again. The first time I hitchhiked, it was dark, cold, and it might have been raining. I remember my parents came to look for me, to give me a ride but I hid in the ditch—I didn’t want to be found. Like I said, I put my parents through a lot.

That night my dad drove me to work, and I think about this a lot, I think about how much he loved me. I don’t remember what we talked about or if we even talked at all. I remember him driving up to the club and I remember telling him thank you for the ride dad. Like always, I remember saying, “See you love you.”

I know it must have been hard for my dad but he did it and he did it because he knew I would find a way to get there anyways. It could have been him or someone else… and he knew that sometimes it would be the less safer way, hitchhiking. And, you see, that is the thing about sex work in the north, especially if you are an Indigenous woman. There is a lot of unsafe ways to do it and sometimes those ways put Indigenous women at risk of going missing or murdered. But, also, there are safe-r ways to engage in sex work and sometimes that means relying on family for rides.

However, there is a danger with the narratives and the laws supporting those narratives. This danger is presuming that an Indigenous woman, especially a young Indigenous woman, is being trafficked and is being trafficked by her family. If it was not for my dad that night, I know that I would have opted for more unsafe way to get to work. Who knows even if I would have made it work if it wasn’t for my dad!?

Either way, I have been thinking about this car ride to work and sitting next to my dad. I would want to sit in the car with him one more time and to tell him thank you for keeping me safe. I know it must not have been easy for him and it was mostly my fault for being so hard on my parents, including my father but I want him to know that I am so thankful that he was my dad.

What next?

I sit here writing this post with great sadness. I don’t know if it is sadness knowing that all good things come to an end or if it is sadness because of things I am dealing with on a personal level.

My last post indicated that I was going to visit my father in the hospital. I arrived Friday and he died Monday at 6:00 AM—True to his form, on time and prompt, first thing in the morning on the first day of the week.

I have lost many great friends and people whom I loved to sudden deaths, and sometimes violent and tragic deaths. My relationship with death is different than many of those who are around me. I’ve come to accept it as a natural part of life and I used to think that this acceptance also meant it would help with my grieving. But nothing can prepare you for the loss of a parent.

Two days ago marked the last of my law school classes. I didn’t know or ever plan to go to law school. I know when I was younger that I wanted to be a lawyer. I didn’t know what a lawyer did. I was in elementary school and I just wanted to be like my older sister. So, if she wanted to be a lawyer, I wanted to be a lawyer too!

Life works in mysterious and funny ways. Just weeks before I was called to go to Toronto, to visit my dad in the hospital, I sent my dad graduation photos. I wanted to surprise him and give him one for Christmas. Now, I am stuck with these photos (lol).

People ask if you are okay but you don’t know if you are okay because what you are experiencing is “normal” or if you are just okay for the sake of saying okay. I know that I must continue to move on and continue to grieve in my own way. I wake up each day, asking myself, “What next?” I only know what comes next because I planned for it and I didn’t plan to grieve the loss of my father. My father was someone I reached out to on the weekends with a small text, “Can we talk dad?” His reply was alway positive. Of course, he would chat with me. Whenever we end the conversation, I always felt a little more at ease; I received the advice I needed; and, I could go on with the rest of my day and approach things with a little more clarity. But now, I walk around and it feels like I have a million different things pulling and grabbing my attention, demanding my time and energy; I just want a moment for me… to determine what next. 

I wish I could chat with my dad just one more time.

At some point, I want to put this blog to rest. I want to focus on myself and I want to focus on my family. This blog, like all good things, is something that must come to an end. And, even though it is a small space on the internet, I know that this has become part of my identity, kwe today. But, I want to move on and you know, that’s kind of sad too. I met so many great people who read my writings, who shared my writings, and who looked to my writing for inspiration. I’m not sure what will happen next but I know that what ever comes next will be what’s best for me.

In the meantime, I’ll continue to find ways to grieve in my own way and heal from this loss and pain.

Baamaapii Waabishkaa Binesi (William “Bill” Thomas Sayers).

dad2.jpg

Everything will be ok.

I don’t know what to feel and I don’t know what to write but all I know is that I need to write.

I thought my previous post would be my last on this space. I am not entirely certain anymore. This space is a space for me to write, reflect, heal, learn and share.

When I was about 18 years old, I tried to kill myself. I did so many times. Except this time, it was different. I was in my first adult psychiatric hospital. It was not so much different than a children’s psychiatric hospital or a children’s psychiatric hospital wing. It was still cold and dead inside. No colour, no scent but the scent of bleach. I was on 24 hour watch. So, they had me in this padded room with a small window on the door and a small window on the wall. The window didn’t look outside. The window was there, facing the nurses’ station. I remember the colour of the padded walls. An awful muddy, brown-green.

During this time, my dad came to visit me. He was often the only one who could or did because my sisters were in school or away to school, and my mom was either working or taking care of the house. We often didn’t talk when he visited. We just sat next to each other in silence. Sometimes he would hug me and sometimes he watch me draw or write in my book–I always had a pad of paper with me (my dad was the one who brought the pad of papers usually). This one visit, though, sticks out in my memory clearly.

My dad came to visit me when I was in this “padded room.” I can’t remember if we talked. I know that we hugged and I cried. I don’t know if he cried or got teary eyed. Maybe he did. He sat next to me on the bed. My spiral notebook (the pad of paper) sat on the “hospital bed tables” (you know, the tables that roll up over your lap so you can eat without leaving bed). He reached over to the table and he opened the book. He opened to a blank page and he wrote the words, “Everything will be ok.” I leaned into him, he hugged me and I cried.

At that moment, I didn’t think or believe everything would be okay but I am glad I made it through those trying times. Today, I am sitting in an airport and I am on my way to see him in the hospital. Even though I am uncertain of the outcome, I know that everything will be ok.

Everything will be ok.

The intersection of #sexwork, #lawschool and #feminism 

Since starting law school in 2014, I have had a range of experiences. These experiences have opened my eyes to how advocacy, especially from your own lived realities, can impact you personally. I never really understood this until I reflected on how my experiences with law school, feminism and sex work intersect. 

For instance, following my testimony against the Conservative’s amended and enacted new Criminal Code provisions following Canada (AG) v Bedford (“Bedford”), I spent coming to terms about the environment I was in. Bedford is the decision which declared three prostitutions invalid for violating sex workers’ rights to security of person (a Charter right, as per section 7). The Supreme Court of Canada (“SCC”) suspended the declaration and gave Parliament one year to respond. Parliament introduced Bill C-36 in June 2014. 

Another sex worker who went to law school called law school “an abusive relationship.” And, you know what, that is what law school is to people who are not supposed to be in law school–Indigenous women who do not support the criminalization of prostitution and who do not align with dominant or mainstream (i.e., white) feminism views on sex work. I didn’t realize the who’s who of anti-sex work feminists taught at my law school. I spent the majority (and still do) of my law school journey avoiding classes taught by these professors because I couldn’t even fathom the discussions that take place around the prostitution/sex work debate. So much for social justice, eh? (Note: My school advertises itself as a social justice school, however, my experiences tell me otherwise). 

However, the anti-sex work sentiments go deeper than just discussions in classrooms. 

On my first day in first year in my first class, I was late. Admittedly. I was at a protest against Bill C-36. I had my “Stop the Arrests!” (a shirt supporting the sex workers’ rights group in Sault Ste Marie ON which formed after several street-based sex workers were arrested and outed as sex workers with their full legal name published in the media). I also came into class with postcards. The postcards were created to have others send them to their MPs, encouraging them to oppose Bill C-36. I introduced myself in class that day, with pride, as someone who supports decriminalization of sex work and opposed Bill C-36 at the Standing Committee on Justice and Human Rights. I quickly learned that professor was also an abolitionist. I regretted such disclosure and I never went to see the professor in the professor’s office hours. And those postcards? I bought more than enough for my small class (less than twenty people). Yet, they never made it back to me. I am hoping (with the goodness of my heart) that whoever took them mailed the remaining postcards or shared them with their friends. I highly doubt it.

Then, as Bill C-36 was making it way through the legislative process, I continued to write and speak out about Bill C-36. I even brought Elizabeth May’s petition with me everywhere I went on campus, encouraging others to sign the petition. I approached via email two other first year professors who identified as feminists (and who allegedly support Indigenous students), and one who had written on sex work, because I thought I could receive their support. Both professors are white. I asked each professor if I could make an announcement in class regarding the petition. They both refused. One flat out said no and the other said I could write a note on the blackboard. I brought the petitions each day to class for a few months, and before and after class, I asked my peers to sign the petition. I cannot recall how many petitions I sent in but each time I acquired the required signatures for the petition, I mailed the petition(s) into Elizabeth May.

And, throughout the first few months of my law school journey, I started to believe I was being stalked in real life given the intensity of the online harassment I received for speaking out against Bill C-36. In my younger years, I did experience stalking from multiple individuals (mainly older white men). So, the very real threat of this happening remained entrenched in my mind. And, it was very hard for me to access the support I needed on campus becuause I didn’t know who I could turn to and who wouldn’t stigmatize or shame me for my experiences. I felt very alone and isolated. 

This was only in first term of my first year. 

Come the second term of first year, I experienced another kind of erasure. I was in a couple classes which provided ample opportunity to discuss the Cindy Gladue case, except nobody knew about the Cindy Gladue case. I also spent the majority of second term trying to determine who could assist me with navigating the law school environment. I couldn’t call home–nobody in my family would understand. The only thing I could do was ask my dad to say some prayers for me (my dad said a lot of prayers for me and I am certain my mom did too). 

After I published my blog post on Cindy Gladue and the verdict from that trial, one professor replied to an email I sent to this professor. A fellow twitter-er recommended I email this professor. So, I did. This professor gave me some tips in the event I wanted to apply to the courses the anti-sex work professors taught. I never ended up mustering up the strength to apply (though I did want to apply). Because of the discussions that happened around Cindy Gladue in one class, I spent much of the last term of my first year walking around in haze. I didn’t realize how much such discussions impacted my ability to even go to school or engage in “classroom discussions” until I had one discussion with another professor about Cindy Gladue. This professor alleged Cindy Gladue would have never died if Cindy didn’t engage in prostitution (as if it was Cindy’s fault). However, I reminded the professor Cindy didn’t go there one time…she went there twice. This professor identified as a feminist (and again, this professor is white). This is the fact that usually throws people into a state of confusion. And, it was the second time that Cindy went there, that Cindy died. But, no, if Cindy wasn’t engaging in prostitution, Cindy would still be here. Nothing about all those other dead sex workers, indigenous or not, though, huh? 

Second year, second term. 

In my second year, I asked another professor for help regarding all this sex work “stuff.” I used to regard this professor as someone who could be supportive to sex work issues and Indigenous issues. However, the response to the request for help indicated differently. After requesting such assistance, I plainly and clearly remember the professor’s response: “I am trying to get tenure.” The professor complained about not being invited to dinner parties with the other professors. The professor also complained about being “silenced” after hosting a panel of sort on the discussion of sex work. As if the threat of losing your cushiony job, not being able to attend dinner parties or host panels is relatable to my experiences as Indigenous woman with sex working experience?!? (This professor is also white and like the others mentioned above, a self-identified feminist.)

When it came to applying to jobs, it appeared all my writing was a downfall. “How do you get so much time to write?” Uhhh, I don’t know, I just write. However, it’s my ability to adapt at a young age after acquiring a brain injury in a car accident–expressing myself via writing as opposed to oral word was a lot easier which was/is a side effect of my brain injury. Now, I have developed tricks to help with this side effect. In all my interviews, I was also open about my sex work in all my writings. So, my resume was more explicit about my sex work involvement than it probably should have been. Still, if someone who doesn’t want to hire me for my experiences in sex work and sex work advocacy, then I really don’t want to work for that same person. My resume acts as a good screening mechanism just as much as resumes acts a screening mechanism for potential employers (thanks sex work for those screening skills). 

In one interview in my second term in second year, I was interviewed by a panel of counsel and Crown Attorneys interviewing for various departments in Ontario Ministries. I wanted to work in criminal division and nothing else. By the end of the interview, since it was clear I used to do sex work, one of the counsel for an Ontario Ministry asked me (to the tune of) “So, because of your experience in sex work, you realize you can’t have a criminal record.”Now, I can’t recall the question word for word but I remember thinking the counsel’s question laid bare the problems with criminalizing sex work: Impeding employment opportunities. 

Now, I am in my third year in my second term. My final term. 

Despite all these experiences, I remain hopeful. I am hopeful that people will one day understand the harms that criminalizing sex work creates, not just for current sex workers but for people who have left sex work, who still carry the stigma over their head, who speak out about it and who continue to advocate for the most marginalized–Indigenous women selling and trading sex, surviving the colonialism with all of its stigma, racism, patriarchy, and of course, its continued criminalization. Much remains to be said about law school especially when I had to craft my experiences to avoid certain classes in order to avoid the very people who wish sex work and as a natural consequence, sex workers themselves to disappear. So much for missing and murdered Indigenous women–I guess it really matters what kind of women. 

In the end, all I know is this, we all have a long way to go.

R v Pelletier: One day spent in prison is one day too many.

It was my birthday weekend and I moved to London, Ontario about a year earlier. It was my twenty-second birthday. The only reason I remember this because in the year prior (my twenty-first birthday) I was in Windsor, Ontario and I planned to visit Detroit, Michigan. Instead of celebrating in Detroit, I was homesick, calling home after a shift at one of the Windsor strip clubs. Before coming to Windsor, I moved to London, Ontario when I was twenty years old, with no family and no friends. I thought I would call Windsor home but after my time spent in Windsor, I decided to come back to London. I stayed in London, Ontario for approximately seven years.

But that weekend, on my twenty-second birthday, I was out on bail and I just finished working another shift at one of the London strip clubs. I was out on bail for some hefty offences. My lawyer, at the time, knew well enough that it would be difficult for me to abide by my conditions to not be around alcohol or in establishments that served alcohol—I worked in a place that served alcohol and by just being in my place of employment, I would could be in violation of my bail conditions. My lawyer did not know that I also struggled with drugs. I used a lot of cocaine. Among those other conditions, I had to refrain from using drugs and I had to return straight home if I was not working, especially if it was after a late shift.

Yet, on that evening of my birthday, I was alone and I was not allowed to be around one of the very people who I wanted to see—my then-boyfriend. I was also not allowed to return home; I had to stay in London, Ontario. I felt very alone and scared. Who could I turn to but the very person who initially called the police on me, after throwing me out of his condominium complex in nothing but a t-shirt (the police also kept me in a jail cell half naked while they watched on their closed-circuit televisions)?[1] So, I called him, that person I was not supposed to be around.

The next memory I have is being dragged into the local police service station. Literally, I was dragged by four police officers—one for each limb. I was very intoxicated. I had done drugs but those effects had worn off. I possibly still had drugs in my possession. After being arrested for violating bail conditions and the police tacking on more offences, I spent the a few days in the local detention centre on 24-hour suicide watch, a detention centre that is known for its inhumane conditions on the male-side of detention centre (much of the media remains silent on the female-side of the detention centre but this silence does not mean that the women have it better because they don’t). After receiving bail and after pleading guilty for violating bail conditions, my lawyer argued (to some extent) that I had served my time—I was alone, away from family, unable to return home and wanted to return home.

*****

Last night, I sat on a greyhound bus returning home from a workshop that I facilitated on decolonizing public legal education and discussing a project I started with two friends I met while in law school (www.btllaw21.com). When I saw the tweet about R v Pelletier and the discussion of humanity within the decision, I cringed.

At the beginning of that workshop, I asked participants to engage in a discussion about home, what home means to them, and how concepts of home erase Indigenous people from stories. The participants talked about actual erasure of Indigenous folks’ homes, destruction of Indigenous people’s territories, separation of Indigenous people’s from their homes or territories and displacement through creation of jurisdiction (i.e., creation of Canada and all of its colonial borders).

Justice Nakasturu’s sentencing decision allegedly represents “sending [Ms. Pelletier] home.”[2] For one day. Like me, Josephine had violated her bail conditions and had history of being violent[3]. In giving her one day, Justice Nakasturu relies on the Gladue sentencing principles.

Often when people talk about the sentencing decisions of Indigenous persons, they rarely talk about the fact that the very problem with the Gladue sentencing principles address the over-incarceration until after these people are in the system. Let’s keep writing those reports to address the over-incarceration of Indigenous people without addressing the very fallacy of the reports, right? I have previously written about Justice Nakatsuru’s decisions (R v Armitage) and made much of these similar comments.

The concern I have with this decision is the suggestion that it could be a potential model for the future. My hope for the future, oddly, is that we do not rely on the criminal justice system to address the over-incarceration of Indigenous persons.

When I first read the decision last night, I struggled to fight back the tears on the bus. I saw so many similarities in my own story, especially the reference to drug use, violent offences, and being forced to attend counselling taught by someone who was not a “good fit” (i.e., culturally or spiritually) and being in a new territory, of course, there would be instances of not finding a good fit in culturally relevant counselling as a form of sentencing—being displaced and being forced to move from your original home, nation, or territory is the essence of colonialism and part of Indigenous folks’ lived realities. Further, in an article addressing culturally relevant programs in prisons and Indigenous women in prisons, David Millward argues that Indigenous women are reluctant to participate in culturally irrelevant programming and suffer in terms of receiving higher security classifications (a security classification is a classification of prisoner: minimum-, medium- or maximum-security classification[4]).[5]  On culturally irrelevant programming, Justice Nakatsuru writes,

We do not live in a world of unlimited resources to help you.  Some program rules may be frustrating.  Even though good meaning people may want to help, nothing is perfect. For instance, I agree with you that as a Cree woman, being given an Ojibway Elder was not a good fit.  Even though you respected his teachings and spirituality. It did not work for you.

We do live in a world, however, that seems to have an unlimited number of resources (i.e., money and other resources) flowing into incarcerating folks, segregating folks away from their homes, their families, their cultures. It is quite confusing that a system says we have problem with sending Indigenous folks to prison but at the same time forces these same persons to engage in culturally irrelevant programming once sentenced or forces these same persons to only have access to cultural programing once sentenced and ignoring its relevancy to that person once sentenced (See my discussion on this second point in R v Armitage).

We also live in a world that relies on a system of incarceration to address the problems with incarceration. In Ms. Pelletier’s instance and many others like her—including my own experiences—one day spent in prison is one day too many.

We also live in a world where we uphold this system as the only possible response to crime in our communities and it is this system that continues to take notice of the over-incarceration of Indigenous folks but leaves this truth unquestioned. In other words, the system says Indigenous persons can access these supports once you plead guilty, once you are inside, and if you don’t accept the conditions upon which the supports are provided (i.e., culturally irrelevancy/relevancy), then those same persons must accept the consequences—more likely than not, increased incarceration or increased security classification.

You may call all of this a conundrum but it is the logic of the system. This is what happens when you deal with the over-incarceration of Indigenous persons, especially Indigenous women, in a system of incarceration and only during incarceration (aka sentencing).

My hope for the future is our communities, including the criminal justice community, will look deeply inward and reflect on how it perpetuates the very problems it says it seeks to resolve, including the over-incarceration of Indigenous folks. More importantly, however, my hope for the future is when I do not have to read my own story in sentencing decisions and when I do not have to read how another justice takes notice of the over-incarceration of Indigenous folks but leaves the very foundation of the system of incarceration undisputed.

One day…

 

[1] I have previously written about this experience, “I was honest with ­police about my work and the fact that I ­sometimes did drugs. I didn’t think I’d be charged with assault.”

[2] http://canlii.ca/t/gvb4b#par29

[3] http://canlii.ca/t/gvb4b#par6

[4] Corrections and Conditional Release Regulations, SOR/92-620, s 18(a)-(c) [CCRR].

[5] Milward, “Sweating It Out: Facilitating Corrections and Parole in Canada through Aboriginal Spiritual Healing” (2011) 29 Windsor YB Access to Just 27 [Milward, “Aboriginal Healing”] at 36.

Submissions to @UN_Women Consultation on #SexWork, Sex Trade or Prostitution.

The following is my submissions to the UN Women’s consultation on sex work, sex trade or prostitution. The deadline was allegedly extended to October 31, 2016. I make these submissions relying on this extended deadline date. 

Submissions to UN Women’s Consultation on Sex Work, Sex Trade or Prostitution.

I am writing to provide recommendations, as an individual, to the consultation seeking views on the UN Women approach to sex work, sex trade and prostitution. I am frequently consulted by municipal, regional, national and international organizations on prostitution law reform initiatives. Also, I write as an Anishnaabe-kwe/First Nations woman with lived experience in the sex trade.

At the outset, I hold the perspective that sex work is work, entails many different kinds of labour, and acts as an umbrella term to include non-criminalized forms of work (i.e., web-camming, pornography, etc). Accordingly, these submissions focus on criminalized sexual labour and criminalized sexual exchanges, like prostitution, which is often conflated with human trafficking. I acknowledge there are international obligations to end human trafficking but assert that any fight to end human trafficking should not come with the risk of increased criminalization, police surveillance, police intimidation and other forms of state or institutional violence. To embody these perspectives, I use the term prostitution in my submissions.

My submissions address the following three questions:

  1. The 2030 Agenda commits to universality, human rights and leaving nobody behind. How do you interpret these principles in relation to sex work/trade or prostitution?
  2. The Sustainable Development Goals (“SDGs”) set out to achieve gender equality and to empower all women and girls. The SDGs also include several targets pertinent to women’s empowerment, such as:
    1. reproductive rights,
    2. women’s ownership of land and assets,
    3. building peaceful and inclusive societies,
    4. ending the trafficking of women, and
    5. eliminating violence against women.

How do you suggest that policies on sex work/trade/prostitution promote such targets and objectives?

  1. The sex trade is gendered. How best can we protect women in the trade from harm, violence, stigma and discrimination?

 

1. The 2030 Agenda commitments need to centre the experiences of people in prostitution.

The principles of universality, human rights and leaving no person behind must centre the experiences of people in prostitution, including young people, Indigenous and other marginalized people. Explicitly, consultations must adopt the principles it espouses and seek to include the people who are most often left behind.

In far too many discussions relating to prostitution, young people, Indigenous and other marginalized people are ignored and silenced. Sometimes these discussions or consultations inform policies adopted by states. However, these subsequent policies rarely seek input from these groups and such consultations fail to assess the impacts of policies on these groups. Following such consultations, the policies adopted to regulate prostitution have the aim to protect such marginalized groups while simultaneously erasing experiences of those most impacted.[1]

To truly commit to these principles, the 2030 Agenda must not ignore and silence these essential voices or experiences. Ignoring and silencing of these essential voices and experiences would only serve to undermine the 2030 Agenda’s commitment to universality, human rights and most importantly, leaving no person behind

2. Any policy must adopt a decolonial lens to promote the SDG targets and objectives.

The SDGs are a good starting point for a discussion on the best ways to achieve gender equality and empower all women and girls. However, the framing of this particular question is problematic because it only addresses women and presumably, the term “women” only includes adult, feminine presenting persons. I recommend to expanding the question to include a range of experiences, including experiences of young women and girls. As a corollary of this recommendation, I also recommend that you respect the privacy and safety of young people. The knowledge young people carry is invaluable. Unfortunately, it is often this knowledge that is devalued or often exploited at young people’s expense. For example, policies that aim to protect and save young people often come with harmful effects like increasing criminalization.

Nevertheless, empowerment narratives tend to essentialize women’s roles through hetero-patriarchal gender binary roles (i.e., women are only mothers or daughters). Empowerment narratives are usually adopted to stigmatize and romanticize women’s roles, especially Indigenous women’s roles. As such, additional discussions about what empowerment entails and what that looks like for women in the sex trade needs to take place. I also recommend the consultation define the term “empowerment.”

Regarding each of the named SDG targets, I recommend adopting a decolonial lens to address the ongoing colonization and criminalization of feminine and feminine-presenting bodies and sexualities. While many organizations adopt an anti-violence lens, this lens ignores ongoing colonization and often advocates for more criminalization. Some organizations and persons also adopt an anti-colonial lens. Yet, anti-colonial does not always mean anti-violence or decolonial. A decolonial lens will highlight the historical and ongoing violent treatment of feminine and feminine-presenting bodies and sexualities through ongoing colonization and criminalization.

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) will assist with this decolonial focus. In particular, Article 19 states,

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.[2]

Article 19 emphasizes consultation in good faith through representative organizations. Sometimes consultation with only well-known organizations or institutions occur, especially in circumstances involving Indigenous women and girls. I recommend, however, that all consultation efforts undertake to meaningful consult in good faith with various kinds of organizations or institutions that ultimately work with, or represent, Indigenous women and girls, as opposed to just the most accessible and well-known.

Regarding policy on prostitution that promotes SDGs targets and objectives, I recommend that all policies adopt the principle of free, prior and informed consent through a decolonial lens. I recommend that policies refrain from increasing policing powers and re-enforcing the harms of criminalization. Such harms of criminalization include displacement, surveillance or racism, to name a few

3. Any initiative must interrogate the term protection.

Similar to the second consultation question, the third consultation question focuses solely on women, and completely erases the experiences of young women and girls. This particular question also uses the term “protect” to address the experiences of women in the sex trade. In discussions surrounding prostitution and women, protection tends to mean increasing criminalization. Protection also tends to focus on protection of children, as opposed to women, and the focus on protection of children leads to increasing criminalization of women. Accordingly, women do not benefit from similar and related policies.

To address this question, I recommend that the focus address women’s experiences as both gendered and racialized, especially those experiences of young, Indigenous and other marginalized people. Many organizations view prostitution as inherently violent and advocate for the criminalization of prostitution under the guise of protection of women. Unfortunately, these perspectives ignore how protectionist policies impact the lives of young, Indigenous and other marginalized women.

In the end, criminalizing any aspect of prostitution in an effort to end human trafficking, abolish slavery or protect women and children is nothing new.[3] In fact, I see efforts to end human trafficking, abolish slavery or protect women and children through increasing criminalization and state surveillance as racist and anti-immigrant. It is young, Indigenous and other marginalized identities that bear the consequences of such policies, including but not limited to deportation and criminalization. The time is now that institutions engage in meaningful consultations that centre the experiences of persons who are most impacted by such policies following these consultations.

 

 

 

 

[1] For instance, Amnesty International’s policy to support decriminalization of sex work only supports decriminalization of adult sex workers. See especially Naomi Sayers, “Watch who is silent on the issue of continued criminalization of young people under the guise of protection and safety” (21 June 2016) Kwe Today (blog), online: https://kwetoday.com/2016/06/21/watch-who-is-silent-on-the-issue-of-the-continued-criminalization-of-young-people-under-the-guise-protection-and-safety/.

[2] United Nations Declaration on the Rights of Indigenous Peoples, Article 19, online: http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf.

[3] Naomi Sayers, “Canada’s Anti-Prostitution Laws: A Method for Social Control” (28 December 2013) Kwe Today (blog), online: https://kwetoday.com/2013/12/28/canadas-anti-prostitution-laws-a-method-for-social-control/; see also Naomi Sayers, “Doing/Undoing Justice: Violence Through Colonial Law” (06 July 2016) Kwe Today (blog), online: https://kwetoday.com/2016/07/06/doingundoing-justice-violence-through-colonial-law/.

Canada Brand is Canada Brand is Canada Brand: The problem with #humanrights based lens.

The Justice and Corporate Accountability Project’s report is titled, “The ‘Canada Brand’: Violence and Canadian Mining Companies in Latin America.” Though an entire post can be written about the “Canada Brand” in mining, this post is about the human rights focus in the report.[1]

The report is a refreshing start to the discussion on violence around natural resource extraction sites. It is also nice that the report acknowledges its own limitations throughout the report. While the report adopts a corporate law perspective through a human rights based lens, the continued focus on a human rights-based framework is limiting.

In the report, the term violence covers a range of targeted activities but does not include unreported violence or violence not supported by two independent sources.[2] The individuals affected by violence range from community leaders to police officers to members of the press to women and youth, just to name a few.[3]

The report outlines that protests are a site of criminalization as well as violence[4]—something that Indigenous peoples in Canada know all too well (Canada Brand, anyone?). Criminalization is defined by the activities targeted and the focus of criminalization is protests and other related activities.[5]

The report is careful not to draw any links between criminalization and violence.[6] The report also views violence separately from criminalization but criminalization may include violence.[7] However, the report employs two terms to assist in drawing some inference of connection between the criminalization and violence: complicity and proximity.[8] While the report is cautious in its approach, the report expects—at minimum—some sort of governmental response. The report writes,

However, the close proximity of Canadian mining operations in Latin America to violence and criminalization paired with the frequency with which such incidents occur demonstrate a significant problem that demands action by the Canadian government.[9]

The human rights focus is limiting because a human rights based approach to violence and criminalization assumes that the violence and criminalization has ended once an individual comes forward. The term victim on its own also has the same consequences: when a victim talks or reports incidences of violence, it is assumed that the violence has ended. Yet, as an Indigenous woman in colonial canada with ongoing and increasing violence and criminalization around natural resource extraction sites, I know all too well that human rights violations do not stop until the work stops or until death.

Overall, the report recommends changes to disclosure requirements as per securities law.[10] For instance, the report found that companies may incorporate in Canada but do business elsewhere. (When a corporation incorporates in Canada, it must follow laws governing disclosure requirements defined by securities law).

This recommendation is a good start but this does not address the fact that violence and criminalization can and will continue to happen. As the report acknowledges, violence is part of doing business[11], and assuming enhanced disclosure and reporting requirements will stop the violence and criminalization is ignoring the fact that the business will continue.

Another limitation to the human rights based approach to violence and criminalization is that the approach only addresses those stories of violence and criminalization of individuals willing to come forward. In discussions surrounding human rights based violations, we often rarely talk about what individuals need to come forward to tell their stories. We often demand that more people come forward without any analysis or discussion about the harms in coming forward.

An example of the kinds of demands we put on individuals experiencing human rights violations is part the report’s own limitations.

The report acknowledges its own limitations throughout, including removing stories from reporting that could not be “corroborated through two independent sources.”[12] From my perspective, as someone who has lived and worked around natural resource extraction sites, there is almost little to no benefit in telling a story about a human rights violation and to assume that these individuals require independent corroboration places the onus back onto the victim of the human rights violation to prove the violation. And, though it is not the only limitation of a human rights based lens, it is the most troublesome: Placing the onus back onto the victim to prove their story. Additionally, the human rights focus and this specific limitation (placing the onus onto the victim) negates the primary recommendation in the report: Amending securities law and its disclosure requirements. What is holding a corporation back from employing the same standards (two independent sources to provide corroboration)?

Third and final, a human rights based approach assumes that any person in any state can benefit from such rights. This is categorically untrue. While upholding the human rights based model is welcomed, larger conversations need to take place about the nuance and complexities of these models in the realities of those individuals experiencing the violence and criminalization.

Despite the human rights based perspective, the report, as noted, is a refreshing start. Still, I would like to see different lens adopted. Perhaps, a lens with an Indigenous feminist focus.

For a different perspective on natural resource extraction and violence around sites in Canada, check out, “Violence on the land, violence on our bodies: Building an Indigenous Response to Environmental Violence.”

Also, check out the following:

 

 

[1] Justice and Corporate Accountability Project, The Canada Brand: Violence and Canadian Mining Companies in Latin America, 24 October 2016, Toronto: Osgoode Hall Law School, online: https://justiceprojectdotorg1.files.wordpress.com/2016/10/the-canada-brand-report5.pdf.

[2] Ibid at 4-5.

[3] Ibid at 13.

[4] Ibid at 17.

[5] Ibid at 19.

[6] Ibid at 28.

[7] Ibid at 19-22; 43.

[8] Ibid at 28-29.

[9] Ibid at 28.

[10] Ibid at 24-40.

[11] Ibid at 21-22.

[12] Ibid at 3

Municipalities and Regulation of Street-based Prostitution

This post will discuss the possibilities of a municipality’s jurisdiction to regulate street-based prostitution.

The following are the relevant facts for this post in context of R v Keshane:

  • The City of Edmonton enacted a bylaw prohibiting fighting in a public place, including consensual and non-consensual fighting.
  • The purpose of the bylaw is “to regulate the conduct and activities of people in public places to promote the safe, enjoyable, and reasonable use of such property for the benefit of all citizens of the City.”
  • The bylaw was enacted pursuant to Municipal Government Act, sections 7 (b) and 7 (c) which state:

A council may pass bylaws for municipal purposes respecting the following matters:

(a)    the safety, health and welfare of people and the protection of people and property;

(b)   people, activities and things in, on or near a public place or place that is open to the public;

(c)    nuisances, including unsightly property[.]

  • Renanda Lee Keshane was issued a ticket in violation of the bylaw in May 2009 and admitted to engaging in a fight in a public place.
  • The bylaw overlapped with some criminal provisions, namely assault, public disturbance and common nuisance.
  • Keshane challenged the validity of the bylaw for being ultra vires.
  • The trial judge held that the bylaw was invalid but the Court of Queen’s Bench reversed that decision, holding that the bylaw was validly enacted.
  • The Alberta Court of Appeal dismissed the appeal, agreeing with the Court of Queen’s Bench decision that the bylaw was validly enacted.

The Alberta Court of Appeal (the “Court”) upheld the decision that declared the bylaw as valid by relying on the province’s constitutional powers where such powers could be delegated to a municipality. Keshane’s application for leave to Supreme Court of Canada (“SCC”) was refused.

This decision reiterates the principle that bylaws may fall under more than one head of power, especially bylaws that have penal consequences, like a fine. In fact, the Court viewed this kind of penalty as a neutral factor since section 92(15) permits the province to punish by way of fines. Further, the Court upheld the bylaw as valid since the bylaw was aimed at activities not solely targeted by the Criminal Code, RSC, 1985, c C-46.

Notably, however, if a bylaw responds to a gap in validly enacted legislative schemes and acts as a proportional tool for police, then Courts will uphold a bylaw as valid (a proportional tool helps responds to circumstances that do not warrant a criminal conviction or permits police to better use their already limited resources[1]).

The Court also relied on the double aspect doctrine where neither the federal nor provincial provisions have a single dominant feature. Rather, both provisions have feature that are of “roughly equal importance”[2].

In light of this decision, five factors that a municipality will have to be cognizant of when enacting a proposed bylaw which is similar to Criminal Code provisions include[3]:

  • The bylaw’s purpose and effect;
  • The bylaw’s punishment does not meet the criminal threshold (i.e., the punishment does not a criminal record and those punished would view the punishment as less severe than a criminal conviction);
  • The bylaw must impose a fine or another alternative to imprisonment;
  • The bylaw must merely attack activities not targeted by the Criminal Code; and

For example, the bylaw must be enacted within a group of other offences that do not suggest criminal activity (ie urinating or bullying) but enacted in the scope of similar activities offends use of and enjoyment of public places

  • The bylaw’s focus includes persons indirectly affected by such activities in the proposed bylaw (like community members).

In light of this decision (absent the non-binding/persuasive-only application to Ontario’s jurisdiction) and in the context of Municipal Act, 2001, SO 2001, c 25 (“Municipal Act, 2001”), the possibility for Ontario municipalities to regulate street-based prostitution for purposes unrelated to the relevant criminal provisions and previous provisions declared invalid by the SCC is all too real.

In Westendorp v the Queen (“Westendorp”), the SCC declared a bylaw invalid for solely targeting street prostitution and offending the divisions of power.[4] In Canada (AG) v Bedford (“Bedford”), the SCC declared three prostitution provisions invalid for violating the Canadian Charter of Rights and Freedom, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c 11 and were not saved by Section 1.[5]

For instance, an Ontario municipality may very well enact a bylaw that is not aimed at the evils of prostitution, like in Westendorp[6], and it is not aimed at public nuisance, or exploitative and non-exploitative situations, like in Bedford[7]. An Ontario Municipality could rely on Municipal Act, 2001, sections 10(2) (specifically, the health, safety and well-being of persons, and the protection of persons and property), and Sections 92(13), 92(15), and 92(16) of Constitution Act, 1867[8].

Relying on these provisions and powers, a proposed bylaw’s purpose could be similar to that in R v Keshane: To provide safe and enjoyable public spaces by deterring a specific criminal act but the defined act targets activities beyond the Criminal Code.

Most importantly, however, any proposed bylaw would have to be distinguishable from the recently enacted Criminal Code provisions following Bedford. These provisions are commonly referred to as Bill C-36, which is now law. For example, in the context of Bill C-36, any proposed bylaw would have to be unrelated to either the movement of traffic or abolishing prostitution, which are some of the aims of the recently enacted communication provisions in the Criminal Code.[9]

Nevertheless, there may be overlap under the recently enacted Criminal Code provisions with such a proposed bylaw’s purpose—namely, protecting communities which is another aim of the recently enacted Criminal Code provisions and which would be similar to ensuring safe, enjoyable public spaces. However, it could be argued that a proposed bylaw enacted for such purposes named above (i.e., safe, enjoyable public spaces) and the recently enacted provisions are of roughly equal importance. Specifically, the proposed bylaw would fill a gap where the Criminal Code provisions do not address a community member’s right to enjoy public spaces free from prostitution and its related activities, and the proposed bylaw acts a proportional tool where street-based prostitution does not warrant criminal charges upon conviction. The proposed bylaw will also allow police to better use their resources and any proposed bylaw, again, would be aimed at activities not targeted by the recently enacted prostitution provisions.

While some municipalities regulate sexual services and related activities under the Municipal Act, 2001, these municipalities do so for the purposes of regulating or licensing related-businesses (i.e., strip clubs, massage parlours, etc).[10] These specifics cases examined bylaws enacted pursuant to Municipal Act, 2001, SO 2001, c 25, Section 10(2) in the context of business licensing; thus, these cases are not significantly similar but do offer some support for such proposal.

Despite all of the above, many questions would remain around scope of harm and how this harm is defined, and more obvious, the scope of enforcement (i.e., what would that look like), especially in light of Bedford and Bill C-36.

 

 

 

[1] R v Keshane 2012 ABCA 330 (CanLII) at para 23, leave to appeal to SCC refused, 35227 (9 May 2013) [“Keshane”].

[2] Keshane at para 18.

[3] See especially Keshane at para 26.

[4] Westendorp at paras 16 and 22.

[5] Bedford at paras 130-163.

[6] Westendorp v the Queen, [1983] 1 SCR 43, 983 CanLII 1 (SCC) [“Westendorp”].

[7] Canada (AG) v Bedford et al, 2013 SCC 72, [2013] 3 SCR 1101 [“Bedford”].

[8] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985 Appendix II, No 5 at Sections 92(13), 92(15), and 92(16).

[9] See Bill C-36, An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts, 2nd Sess, 41st Parl, 2005, “Preamble” and cl 15 (as passed by the House of Commons 6 November 2011).

[10] See 2211266 Ontario Inc. (Gentlemen’s Club) v. Brantford (City), 2013 ONCA 300, 2013 ONCA 300 (CanLII); 679619 Ontario Limited (Silvers Lounge) v. Windsor (City), 2007 ONCA 7, 2007 ONCA 7 (CanLII); and 2211266 Ontario Inc., o/a Gentlemen’s Club v. The Corporation of the City of Brantford, 2012 ONSC 5830, 2012 ONSC 5830 (CanLII).

It’s not what you expect: Saving The Girl Next Door Act

Progressive Conservative and member of the Ontario legislature[1], Laurie Scott, recently re-introduced[2] Saving The Girl Next Door Act (the “Act”) in its first reading on September 21, 2016[3]. The Act was first introduced in February.[4]

The Act is meant to proclaim a day to raise awareness around human trafficking as well as provide several protections to trafficking victims like protection orders and publication bans. More notable, however, is the creation of a new statutory tort, the tort of human trafficking. While this new tort of human trafficking may provide additional avenues for human trafficking victims seeking justice, much remains to be said about how the Act defines the tort and questions remain about how the Courts will apply this new tort.[5]

The tort of human trafficking has two elements.[6] The first element is that the human trafficker either abducted, recruited, transported or harboured a person, or exercised control, direction or influence over the movements of a person.[7] The second element is that the human trafficker “uses force, the threat of force, fraud, deception, intimidation, the abuse of power or a position of trust or the repeated provision of a controlled substance, in order to cause, compel or induce that [the victim] to become involved in prostitution […], to provide forced labour or services, or to have an organ or tissue removed.”[8] Though the Act is uncertain what is meant by prostitution, Ms. Scott allegedly indicated that the bill “will make a difference.”[9] Nevertheless, the Act does not define or outline how it will make a difference especially in terms of application to the realities of human trafficking victims.

For instance, the realities of trafficking victims are complex and require much more nuance beyond determining whether they consented to the activities in question. Despite the tort of human trafficking making it clear that “it is no defence that the plaintiff consented to the any of the conduct in question”[10], the tort assumes that prostitution is human trafficking and does not attempt to distinguish people who provided sexual services in a consensual manner from people who are being forced to sell such services against their own will.

Even more to the point, Ms. Scott also introduced a petition signed by people from Peterborough, Ontario. This petition outlined that “the average age of a victim is 14 years old, and over 90% of victims are Canadian-born.”[11] Aside from a dated-RCMP report, it is unclear how and where these statistics are obtained, especially since these statistics are often cited without reference to the original source, including in the dated-RCMP report.[12]

Further, the Saving The Girl Next Door Act has remnants of Bill C-36, Protection of Communities and Exploited Persons Act (“Bill C-36”) which is now law and was passed under the former Conservative government.

For one, Bill C-36, like the Act, assumes prostitution to be human trafficking.[13]

But once you look into how both the Act and Bill C-36 define procurement of prostitution, the similarities become all too clear.

In Bill C-36, procuring is defined as “everyone who procures a person to offer or provide sexual services for consideration, for the purpose of [purchasing sexual services], recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration or exercises control, direction or influence over the movements of that person, is guilty[…].”[14]

An authoritative decision on the definition of procuring defines control as “invasive behavior to ascendancy (i.e., domination, power, etc.) which leaves little choice to the person controlled.”[15] Control also includes direction, where movements of a person are controlled through imposed rules or behaviours; direction does not mean “the person being directed from having a certain latitude or margin for initiative.”[16] In other words, the person being directed can have some room for exercising their own direction. In comparison to direction and control, the Quebec Court of Appeal defines influence as “any action exercised over a person with a view to aiding, abetting or compelling that person to engage in or carry on prostitution would be considered influence.”[17] This definition is cited by a decision citing the procuring section recently enacted under Bill C-36.[18]

Still, just like Bill C-36, I suspect much criticism follow with this new Act.

For example, one of the major condemnations by people who support criminalization of prostitution is that the judiciary often lacks the training and understanding of human trafficking.

The Trafficking in Persons (“TIPs”) report developed by the United States is a tool to assess and grade other foreign governments initiatives related to human trafficking.[19] The higher the rating, the more funding a country receives to help combat human trafficking.[20] The theme of the 2016 TIPs report emphasized the need for more convictions—or, increasing criminalization. So, not only are there incentives to maintain a higher grade, there are incentives to increasing criminalization. However, not much seems to differ in terms of its recommendations for countries with the highest rating, tier 1, like Canada and Sweden.

Canada’s Bill C-36 was marketed as Canada’s Nordic Model, wherein the Nordic Model originated in Sweden. TIPs recommends that both Canada and Sweden increase training and understanding of human trafficking among judges, and other parties.[21]

Many people speak of the successes of the Swedish model (i.e., the Nordic Model) but there is very little discussion about what those successes actually entail.

In fact, in a comprehensive report prepared for the Federal/Provincial/Territoral Forum of Status of Women Senior Officials, one of conclusions emphasized that “effective enforcement”[22] could be seen through the changing attitudes in judges, and other officials. In this particular instance in the report, the author refers to Melissa Farley’s factum in the Bedford v Canada decision, where the Ontario Superior Court of Justice assigned lesser weight to Farley’s evidence given her “problematic”[23] evidence which contradicted itself in many instances.[24] The report continues, “Sweden’s Sex Purchase law first came into force, these groups were very critical of the legislation, saying that it would be impossible to find evidence and prosecute cases. By 2005, however, these groups changed their view and now support the law.” The report cites Gunilla Ekberg[25], one of the individuals who testified at Parliament’s Standing Committee on Justice and Human Rights supporting Bill C-36.

If the TIPs report is any indication on what success entails, including increasing criminalization attached with more funding, then perhaps the real intentions of combatting the war on human sex trafficking[26], as Laurie Scott so eloquently called her efforts, is just more money in the bag especially for those lawyers who will be representing human trafficking victims bringing claims under the tort of human trafficking—the very same victims that may come from vulnerable and marginalized backgrounds with little to no income. So, who are the real ones profiting on the exploitation inherent to prostitution? Time will tell…

[1] Ontario, Legislative Assembly, 41st Parl, 2nd Sess, Laurie Scott, online: http://www.ontla.on.ca/web/members/members_detail.do?locale=en&ID=2116

[2] Ontario, Legislative Assembly, Official Report of Debates (Hansard), 41st Parl, 2nd Sess, (16 September 2016) (Laurie Scott), online: http://www.ontla.on.ca/web/house-proceedings/house_detail.do?Date=2016-09-21&Parl=41&Sess=2&locale=en#P641_142456.

[3] Ontario, Legislative Assembly, 41st Parl, 2nd Sess, (16 September 2016), online: .http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=4133&detailPage=bills_detail_status.

[4] Ontario, Legislative Assembly, Official Report of Debates (Hansard), 41st Parl, 2nd Sess, (16 September 2016) (Laurie Scott), online: http://www.ontla.on.ca/web/house-proceedings/house_detail.do?Date=2016-09-21&Parl=41&Sess=2&locale=en#P641_142456.

[5] Bill 17, An Act to enact the Human Trafficking Awareness Day Act, 2016 and the Child Sexual Exploitation and Human Trafficking Act, 2016 and to amend Christopher’s Law (Sex Offender Registry), 2000, 2nd Sess, 41 Leg, Ontario, 2016, at s i, online: http://www.ontla.on.ca/bills/bills-files/41_Parliament/Session2/b017.pdf.

[6] Bill 17, An Act to enact the Human Trafficking Awareness Day Act, 2016 and the Child Sexual Exploitation and Human Trafficking Act, 2016 and to amend Christopher’s Law (Sex Offender Registry), 2000, 2nd Sess, 41 Leg, Ontario, 2016, at s 3, online: http://www.ontla.on.ca/bills/bills-files/41_Parliament/Session2/b017.pdf.

[7] Bill 17, An Act to enact the Human Trafficking Awareness Day Act, 2016 and the Child Sexual Exploitation and Human Trafficking Act, 2016 and to amend Christopher’s Law (Sex Offender Registry), 2000, 2nd Sess, 41 Leg, Ontario, 2016, at s 3(a), online: http://www.ontla.on.ca/bills/bills-files/41_Parliament/Session2/b017.pdf.

[8] Bill 17, An Act to enact the Human Trafficking Awareness Day Act, 2016 and the Child Sexual Exploitation and Human Trafficking Act, 2016 and to amend Christopher’s Law (Sex Offender Registry), 2000, 2nd Sess, 41 Leg, Ontario, 2016, at s 3(b), online: http://www.ontla.on.ca/bills/bills-files/41_Parliament/Session2/b017.pdf.

[9] Ontario, Legislative Assembly, Official Report of Debates (Hansard), 41st Parl, 2nd Sess, (16 September 2016) (Laurie Scott), online: http://www.ontla.on.ca/web/house-proceedings/house_detail.do?Date=2016-09-21&Parl=41&Sess=2&locale=en#para842

[10] Bill 17, An Act to enact the Human Trafficking Awareness Day Act, 2016 and the Child Sexual Exploitation and Human Trafficking Act, 2016 and to amend Christopher’s Law (Sex Offender Registry), 2000, 2nd Sess, 41 Leg, Ontario, 2016, at s 22(2), online: http://www.ontla.on.ca/bills/bills-files/41_Parliament/Session2/b017.pdf.

[11] Ontario, Legislative Assembly, Official Report of Debates (Hansard), 41st Parl, 2nd Sess, (16 September 2016) (Laurie Scott), online: http://www.ontla.on.ca/web/house-proceedings/house_detail.do?Date=2016-09-21&Parl=41&Sess=2&locale=en#para842.

[12] RCMP Report (not publicly available)

[13] http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=6767128&File=4

[14] http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=6767128&File=4 s 286.3(1)

[15] R v Perreault, 1996 CarswellQue 3093 at para 11.

[16] Ibid

[17] Ibid.

[18] R v Alexander, 2016 ONCJ 452.

[19] United States, Trafficking In Persons, online: https://www.state.gov/j/tip/rls/tiprpt/.

[20] EMPOWER Foundation (Thailand), “No more TIPS please”, online: http://www.nswp.org/sites/nswp.org/files/No%20More%20TIPs%20Please_Empower.pdf.

[21] United States, Trafficking in Persons Report, “Sweden” at p 354, online: http://www.state.gov/documents/organization/258881.pdf; United States, Trafficking in Persons Report, “Canada” at p 123, online: http://www.state.gov/documents/organization/258878.pdf.

[22] N. Barrett, International Centre for Criminal Law Reform and Criminal Justice Policy “An Exploration of Promising Practices in Response to Human Trafficking in Canada” at p 28, online: http://www.humanservices.alberta.ca/documents/Human-Trafficking-in-Canada.pdf.

[23] Bedford v Canada, 2010 ONSC 4264 (CanLII) at para 353.

[24] Bedford v Canada, 2010 ONSC 4264 (CanLII) at para 353.

[25] https://openparliament.ca/committees/justice/41-2/38/gunilla-ekberg-1/?singlepage=1https://openparliament.ca/committees/justice/41-2/38/gunilla-ekberg-1/only/

[26] Ontario, Legislative Assembly, Official Report of Debates (Hansard), 41st Parl, 2nd Sess, (16 September 2016) (Laurie Scott), online: http://www.ontla.on.ca/web/house-proceedings/house_detail.do?Date=2016-09-21&Parl=41&Sess=2&locale=en#para842

 

#sexwork-er @GlasgaeLauraLee, “154 sex workers have been murdered in the United Kingdom since 1990. That stops now.”

I occupy a unique position in law school as an Indigenous woman with sex working experience and in particular, as a person with sex working experience where much of my Faculty’s professors strongly advocate for the abolition of sex work. While I know my experiences are neither welcomed nor accepted as valid and legitimate in some spaces especially in my Faculty, I remain committed to ensuring sex workers’ stories and experiences are centered when and where appropriate. Though I previously written about leaving the sex work movement, I never said I would stop writing. So, I write…

Just recently, Laura Lee, a sex worker in Ireland, brought forward an application for judicial review of the legislation which criminalizes the act of paying for sex. The law against purchasing sex came into effect last year, which is eerily similar to Bill C-36, For the Protection of Communities and Exploited Persons (“Bill C-36”).

Briefly, Bill C-36, which is now law, is the law that the previous Conservative government passed in response to Canada’s highest court’s decision to declare three prostitution provisions invalid for violating sex workers’ Charter rights. Specifically, the Court in Bedford v Canada held that the three challenged provisions violate Section 7 or the right to security of person which is not in accordance with the principles of fundamental justice.  The Court further held that these provisions were not saved by Section 1 of the Charter. Section 1 imposes “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” on such rights and freedoms guaranteed under the Charter.

Her lawyer, Ciaran Moynagh, tweeted several days earlier that there a resistance on the part of the Attorney General of Northern Ireland (the “AG of NI”) acting for the Office of First Minister and Deputy First Minister (“OFMDFM”), despite the application being the responsibility of Department of Justice (the Department of Justice is part of the OFMDFM). Thus, the initial step, to be granted standing, has been achieved earlier this week despite the AG of NI suggesting otherwise. This decision does not determine the outcome of the application.

The AG of NI attempted to argue that Laura did not identify any unlawful act and that the law provided greater protections for Laura. These kinds of positions are, again, eerily similar to the ones provided in support of Bill C-36. For instance, one of the arguments advanced as the bill passed through committees and debates was that the bill offered protection for exploited persons; yet, the bill assumes all prostitution to be exploitative and does not differentiate between exploitative situations and non-exploitative situations. I asserted at the standing committee for justice and human rights “that criminalizing clients ignores the structural issues that cause forced labour, thereby distracting from the government’s responsibility to victims of exploitation.” Even more troubling, laws that allege to end human trafficking by attacking the purchases have far reaching and dangerous outcomes for sex workers.

On her application for judicial review, Laura Lee says to me in email that the law prevents sex workers from working together in safety. This is much like the effects of Bill C-36, which prevent sex workers from working together.

Since Bill C-36 assumes all sex work to be inherently exploitative, anyone—including other sex workers—who profits or share profits obtained through selling of sexual services is benefiting from exploitation. In other words, despite the exceptions to trafficking provisions in Bill C-36, Bill C-36 prevents any sex worker from taking steps to implement safety enhancing provisions.sex-work

Laura describes the dangers with criminalizing the purchasers of sexual services, “Attackers and those who would do many other forms of harm are well aware of that situation, which makes it highly dangerous for us.” The Bedford decision also recognized this harm from people who preyed on sex workers by stating, “If screening could have prevented one woman from jumping into Robert Pickton’s car, the severity of the harmful effects is established.” Despite this holding, the Conservative government passed its harmful bill with the remaining parties voting against it (except for those members who did not vote or were not present to vote).

Wendy Lyon, a solicitor in Ireland who is not working on the application, provides context to Laura’s application when others have written that Laura’s application is based on right to privacy.

Wendy outlines, “[Laura’s] argument is actually based on the right to respect for private life under Article 8 of the European Convention on Human Rights […]. Among other things, it protects the individual’s right to be free from arbitrary or insurmountable state-imposed obstacles to the exercise of lawful activities of significance in one’s personal life [emphasis added].” Wendy correctly notes, “[The argument] is essentially the same argument that was upheld by a unanimous Supreme Court in Bedford v Canada, under the Canadian Charter’s right to security of person. Laura’s team are asserting that this same right to security of person is encompassed within the Article 8 right to respect for private life.”

Throughout the committees and the debates on Bill C-36, the Conservative government alleged that the Bedford decision, absence any legislative response, would decriminalize prostitution. The Conservative government also alleged to have read the Bedford decision. Arguably, however, if the Conservative government read the Bedford decision, it would have understood that only three prostitution provisions were challenged and declared invalid—not all of the provisions criminalizing prostitution. These challenged provisions included three provisions which resulted in many sex workers’ lives to be lost.

sex-work2

This lie is similar to other lies that were and continued to be passed around about Bill C-36. One such lie is that Bill C-36 decriminalized the sellers. Supporters of such laws also allege to claim to support the decriminalization of sex workers in an insidious effort to “ending” violence against sex workers—ignoring the fact that criminalizing the purchasers puts sex workers at risk of more violence.

Wendy stresses the effects of criminalizing purchasing sexual services when she outlines Laura’s arguments, “Laura’s legal team is arguing that the anti-sex work laws breach [Laura’s rights] by making it more dangerous for her to engage in the lawful activity of providing sexual services for pay.”

Several international organizations have recognized the harms of criminalizing sex work, including the selling and buying of sexual services. Laura reminds us all, “Decriminalization is recognized as the ideal model for harm reduction by the World Health Organization, UNAIDS, and more recently, Amnesty International.” It is important not to forget these positions by such organizations which is supported by their reports based on evidence.

Laura continues, “It’s time to recognize the true impact of these archaic laws; 154 sex workers have been murdered in the United Kingdom since 1990. That stops now.” I agree with Laura, both as a student studying law and as someone with lived experience in the very trade impacted by the harms of criminalization. In Canada, from the year 1985 to 2011, around 300 sex workers have been murdered.

These type of decisions and government’s resistance to respond to the harms caused by criminalization of sex work, including Justice Minister Jody Wilson-Raybould’s silence since my open letter to Justice Minister last year, have left me with many questions about the role of lawyers in social movements.

The sex work movement is a social movement but it is also about legal interventions to the realities faced by sex workers, including increased violence due to criminalization.

I asked Laura’s lawyer, Ciaran Moynagh, about the role of lawyers in these kinds of legal efforts and interventions. Ciaran highlighted the importance of recognizing that sex workers are experts in their own lives. Ciaran states via email, “[W]hen a potential client comes in saying they need advice and representation, whether it be about sex work, LGBT rights, obscenity or some other uncommon matter I may know very little about, I treat them as the expert and from the outset listen. These potential clients have the life experience and I will take their story, carry out research and apply the law accordingly.” While we all have different life experiences, not everyone can be experts in every life experience. Ciaran notes, “Everyone’s life experiences are vastly different and I am an expert in law but not life.” So, Ciaran believes “[I]t is essential that you accept instruction without fear or prejudice.” No argument there.

Ciaran, as a lawyer working with Laura Lee, was also kind enough to offer some practical advice when I reached out to him. Such advice included being prepared, as Ciaran explains, “for an uphill protracted battle and be prepared for ignorance to meet you at every stage.” As someone who has been attacked, harassed and stalked for my advocacy efforts, I only know this from experience. Ciaran reminds me, “Knowing this will allow you to structure you case to make it accessible as possible and base it on facts, evidence and research!” Still, because access to justice is a major problem in Canada, Ciaran also reminds me, “Another major hurdle is funding so be inventive!” You can help support Laura’s efforts by donating to her legal fund here: https://www.gofundme.com/3rikpo.

 

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Follow Laura on twitter at @GlasgaeLauraLee and contribute to her legal fund.

Follow Ciaran on twitter at @CiaranMoy and visit his firm’s website.

Follow Wendy on twitter @WendyLyon and visit her blog.