What is and is not legal under Canada's new prostitution laws

Matt Coutts
Daily Brew
Carol Leigh, a long-time sex worker and advocate for decriminalizing prostitution, poses for a photograph in her office in San Francisco, California July 18, 2014. Calls by Bay Area sex workers for decriminalizing "consensual" prostitution have been spurred anew following the FBI seizure of a West Coast sex services website that prosecutors say hooked up clients with prostitutes and which sex workers saw as a vital forum to screen dangerous clients. Picture taken July 18, 2014. To match Feature USA-SEXWORKERS/SANFRANCISCO REUTERS/Robert Galbraith (UNITED STATES - Tags: POLITICS CRIME LAW SOCIETY TPX IMAGES OF THE DAY)

Canada’s new prostitution laws went into effect over the weekend, and already they are prompting concern and doubt. And confusion — always good when you’re at risk of jail time if you don’t understand the law.

The Protection of Communities and Exploited Persons Act, which replaces former laws that have been shot down as unconstitutional by the Supreme Court, are meant to give sex workers the ability to protect themselves, and create avenues to help get them out of the industry.

But those on the ground have complained that they still can’t tell what is legal and what is not.

“The rules and regulations are still hazy,” Cameron Diablo, a Victoria, B.C. sex worker, told the Victoria Times Colonist.

“We’re unsure about licensing, legality, if we live near schools but work indoors, landlord-tenant regulations with the new law, advertising. The list is endless with the detailed questions my group of colleagues and I have come up with.”

It is not a great sign for a set of laws that were written with the intention of clarifying the murky legality of the sex industry in Canada.

Prostitution is legal in Canada, but the country’s former set of laws made almost everything around it illegal. The Supreme Court of Canada shot down those laws last year, calling them unconstitutional, and gave the government one year to replace them.

Justice Minister Peter MacKay unveiled the Protection of Communities and Exploited Persons Act earlier this year, which criminalizes buying sex, profiting from the sale of sex, and third-party advertising.

The changes were not well received. Several groups and agencies, including the Canadian AIDS Society and the Native Women’s Resource Centre, continue to oppose the new laws.

Ontario Premier Kathleen Wynne says she has asked the province’s attorney general to investigate the laws and advise her on their “constitutional validity.”

"I am not an expert, and I am not a lawyer, but as premier of this province, I am concerned that this legislation (now the law of the land) will not make sex workers safer," reads Wynne’s statement.

Regardless of the confusion and opposition, the bill is now law, and the country’s sex industry is bound by them.

So let’s take a look at what is legal, illegal and up for debate under the Protection of Communities and Exploited Persons Act:

IT IS LEGAL to communicate with the intention of selling sex, in some circumstances. This is a key change from the previous laws, which made it illegal to negotiate the sale of sex at any time. The change arguably fulfills a key concern raised by the Supreme Court ruling.

IT IS ILLEGAL to sell sex near any area where a person under 18 years of age could reasonably be expected to be present. Notably, school grounds, playgrounds or day care centres. The government says the change balances the Supreme Court’s concerns while keeping children from being exposed to prostitution. Opponents say the provision forces sex workers into dangerous and isolated areas which will limit their ability to screen clients and negotiate terms.

IT IS ILLEGAL to purchase sexual services. Or communicate with the intention of buying sex. This is punishable with up to five years in jail and fines that begin at $500 an increase with subsequent offences. Fines double if it is done anywhere kids may be present.

The government says criminalizing those who “create a demand for prostitution” limits the lure for sex workers. Opponents say criminalizing these exchanges push them underground and therefore make the situation more dangerous for sex workers. The Pivot Legal Society says the provision “violates the security of the person rights of sex workers.”

IT IS LEGAL, technically, to advertise your own services. Sex workers receive an “immunity” from advertising laws. Though in-person negotiations are subject to the rules above and advertising through media channels, well…

IT IS ILLEGAL to advertise the sale of others’ sexual services. It cracks down on back-of-magazine as well as online ads. It targets those who would run the ads, and could extend to publishers and website administrators.

The government argues that such advertisements create a demand for prostitution. Opponents argue that limiting a sex worker’s ability to advertise forces her onto the street and would probably be found unconstitutional by Canadian courts.

IT IS ILLEGAL to financially benefit from the sale of sex. This provision makes it illegal to run a business that sells sexual services – such as escort agencies, massage parlours, etc.

IT IS LEGAL to receive financial benefit, or at least the above law does not apply, for those in “legitimate living arrangements” or with “legal or moral obligations” to sex workers. This clarification to the previous law allows sex workers to conduct their own personal affairs. Like anyone else, they can support their children, spouses and roommates. They can hire accountants and pay for security services. However, a “pimp” would not fall under those exemptions. 

The Pivot Legal Society says, however, that many of the changes introduced by the federal government have been misrepresented. While the changes are said to offer safety for sex workers, they actually “result in sweeping criminalization of the sex industry, targeting sex workers, clients, and third parties.”

The result will not be safer and more secure working conditions, as was requested by the Supreme Court, and will instead make things more difficult, and more dangerous in some cases.

Police in British Columbia have indicated that the new bill will not have a major impact on how they handle the sex trade. Still, some 60 groups are calling for the laws to be repealed. The Toronto Sex Workers’ Action Project is calling for decriminalization entirely.

That’s not likely to happen. Legal challenges, however, are inevitable. Until then, sex workers are best to read up on what is legal, and what currently is not.