Sex Work Laws in Alberta and Elsewhere – Why Shannon Says You Should Care

You likely missed it. There was an article about it in the Calgary Herald[1], but otherwise Covid news, and cute cats got all the attention. To be fair – the 12-week trial was all in French and so maybe most of the media missed it too.

On January 10, 2022, Court of Queen’s Bench Justice Kristine Eidsvik declared that sections 286.2 and 286.3 of the Criminal Code were unconstitutional[2]. Section 286.2 made it an offence to obtain a material benefit from sex work and section 286.3 made it an offence to procure someone to provide sexual services (more commonly known as pimping). I am enjoying putting those in the past tense. Basically, Justice Eidsvik struck down these laws but suspended her declaration of invalidity for 30 days. Today, February 9^th, 2022, is the 30^th day. These laws are no longer good in the Province of Alberta.

Why should you care? There are so many reasons! You are likely saying to yourself, you don’t know any sex workers personally. This really doesn’t affect you. Think again!

Kim Arial and I, Shannon Gunn Emery, were the lawyers working on this case. Kim found the civilian witnesses for the constitutional challenge, while I found the expert. One of the sex workers Kim found was someone I had known, and considered a friend, for years. I never knew until that moment that friend had worked as a sex worker years before we had met.

It must just not have come up in conversation, right? No, the issue is much more nuanced than that. Sex work is highly stigmatized. Yet, it can be very lucrative too. One of our witnesses said she was able to charge $600/hour. Just so you know, if you hire me for Collaborative Family Law, you will never be charged anything close to $600/hour, even though I have been practicing law for nearly 20 years!

Two of the sex workers who testified were able to obtain law degrees thanks to the money they were able to earn through sex work. The law degree was the fourth university degree that one of them was able to obtain – only because sex work made it possible. If you like ethical conundrums, you should love this! Think about all the many interesting ethical questions this raises:

• Why is it so difficult for women to find lucrative work?
• Keeping in mind historical realities, is one of the reasons why the state is so Hell-bent on shutting down sex work because it opens up so much financial independence for women?
• Is sex work inherently degrading and dangerous?
• Can sex work be a valid choice for people to make?
• Should people be allowed to decide whether they wish to use their bodies in sexual ways to make a living?
• How is this different than other types of physical labour? The list of issues can go on and on.

Th criminalization and stigmatization of sex work does not only lead to friends not wishing to open up to others about their past. It has much more devastating effects. Did you know that you could be prosecuted if you rent someone who does sex work a room in your house? Yes – you could be prosecuted for pimping! Section 286.3, the pimping section (referred to as procuring), makes it an offence to harbour a person who provides sexual services if, in doing so, you made it easier for that person to do their work.

Did you know that, according to the explanation about these laws from the Government of Canada, a bouncer in a strip club could be convicted of having received a material benefit from sex work?[3] If you drive a sex worker around, live with that person, or you do anything that in any way assists them and you get any benefit (it does not just have to be money) from helping them, you could be prosecuted. If you are a child or an elderly parent who lives in a residence paid for by a sex worker, you are receiving a material benefit from sex work. If you do the accounting for a sex worker and are paid through… You get the idea.

It is true that there are all sorts of exceptions in s. 286.2(4) that are supposed to allow sex workers to be able to hire people who can make their work safer and easier. Some of the exceptions actually do permit that but don’t bother reading them. The exceptions you need to know about are the exceptions to the exceptions. I am not kidding. The law is as clear as mud. One of the most amazing exceptions to the exceptions basically states that if you were assisting the sex worker in one of the permitted ways but it was in the context of a commercial enterprise (so the sex work wasn’t for free) then there are no exceptions. There are other, equally stupid, exceptions to the exceptions. If you not only enjoy ethical conundrums but also like legal puzzles, these two laws will afford you hours of entertainment.

Justice Eidsvik echoed comments from Justice Sutherland in R v NS, 2021 ONSC 1628 and Justice A.T. McKay in R. v. Anwar and Harvey 2020 ONCJ 103 that the sex work laws are a legal minefield. Our case proves that you literally have to be a student of the law to safely navigate them. The laws are overly broad and capture actions that are not criminal in nature.

We all want to ensure that people are not exploited sexually. There are laws in place to ensure that does not happen. Sections 286.2 and 286.3 went well beyond that and criminalized anyone who tries to help a sex worker in almost any way. The government in their Technical Paper reassured the public that “Bill C-36 does not prevent those who sell their own sexual services from entering into legitimate family and business relationships on the same basis as anyone else”[4]. What kind of law would even bring the ability to have children, spouses or friends into question? The answer – these laws – that were, thankfully, just struck down.

Stay tuned for the sequel, also known as the Crown appeal!

[1] https://calgaryherald.com/news/crime/calgary-judge-stays-pimping-related-allegation-against-two-quebec-men-after-ruling-criminal-code-sections-unconstitutional

[2] See R c. Kloubakov, 2021 ABQB 960 and R c. Kloubakov, 2022 ABQB 21.

[3] https://www.justice.gc.ca/Eng/Rp-Pr/Other-Autre/Protect/p1.html – see second last sentence of section b, subsection “Procuring Offence”: “…a person who derives a benefit from the prostitution of others, without actively inciting the provision of sexual services, such as a “bouncer,” who works at a strip club and knows that prostitution takes place there, is only caught by the material benefit offence”

[4] See first sentence of third paragraph under section b, subsection Material Benefit Offence.