OHS Article

 

From 1982 to 1998, Gary Leon Ridgway preyed on sex workers in King County, Washington. Ridgway picked up the women, took them back to his house and strangled them, later writing in his defendant's statement that his goal was to kill as many sex workers as he could.

 

"I picked prostitutes as my victims because I hate most prostitutes and I did not want to pay them for sex. I also picked prostitutes as victims because they were easy to pick up without being noticed. I knew they would not be reported missing right away, and might never be reported missing. I picked prostitutes because I thought I could kill as many of them as I wanted without getting caught," the statement notes.

 

For 16 years, Ridgway went undetected by police. As he pursued his perverse objective, the number of sex workers he could kill ballooned to 48, their forgotten bodies dumped in clusters around the county.

 

 

In 2002, Canadians learned their home and native land was not immune to this sort of violence. Police unearthed the DNA and partial remains of 26 women - some of this dating back to 1995 - on a pig farm about 30 kilometres east of Vancouver. All of the women had been sex workers and all had lived and worked in Vancouver's drug-drenched and poverty-infested Downtown Eastside neighbourhood.

 

Robert Pickton was convicted of second-degree murder for six of the women and charges were stayed for the other 20, although he confessed to an undercover officer that the true body count was 49 and he "was gonna do one more, make it an even 50."

 

Rene Ross, the executive director of Stepping Stone, a sex worker advocacy and support organization in Halifax, says tragedies like these are evidence of the systemic violence against workers society has deemed disposable. Although offering the legal service of exchanging money for sex, these workers are denied occupational health and safety protections, forced to work in unsavoury areas and around dangerous people because of what Ross calls "old, useless laws that do not do anything but harm."

 

Provisions in the Criminal Code of Canada make it almost impossible to work in the sex industry without breaking the law. Although provinces may have oh&s requirements that could help keep sex workers safe, these protections do not apply to work that violates Canadian law.

 

In 2006, the Standing Committee on Justice and Human Rights released its review of Canada's prostitution laws. "Prostitution takes place on the street, through escort and call-girl services, in massage parlours, private apartments, and in specialty clubs and bars, including strip clubs, hotels and some restaurants," notes the report.

 

Speaking before the committee, Kara Gillies, president of Maggie's: The Toronto Prostitutes' Community Service Centre, said the laws of the day increased the risk of violence by outlawing safety measures sex workers could take and reinforced the stigma that they are "acceptable targets of derision and abuse."

 

Susan Davis, a sex worker for 25 years, is a member of the West Coast Co-op of Sex Industry Professionals in Vancouver. "Are we going to continue down this path, where sex working people are completely excluded from the discussions and only people who won't be affected get to impose their moral ideal?"

 

Says Davis, "I've been assaulted numerous times. From an occupational health and safety standpoint, there's not a lot of control of your environment when you're standing on a street corner, especially under the current legal framework."

 

Emphasizing that the existing approach is costing people their lives, Davis contends that in "any other industry, if the working conditions had degraded to the point ours have, [the government] would do something about it."

 

 

Ridgway's serial murders and the horrors at Pickton's farm were cited in a September, 2010 Ontario Superior Court of Justice ruling that offers the potential to completely transform Canada's sex work industry.

 

In their arguments before the court, sex workers and sex work activists Terri Jean Bedford, Amy Lebovitch and Valerie Scott noted that although Sections 210, 212(1)(j) and 213(1)© of the Criminal Code - which includes criminalizing sex-for-money transactions conducted in public - do not cause direct harm to sex workers, the provisions "prevent prostitutes from conducting their lawful business in a safe environment."

 

This, they claimed, represented a violation of both Sections 2(b) and 7 of the Canadian Charter of Rights and Freedoms, which address the freedom of thought, belief, opinion and expression, and the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

 

The federal government - along with the Ontario government, the Christian Legal Fellowship (CLF), Real Women of Canada and the Catholic Civil Rights League - submitted that the risks in prostitution are inherent in the nature of the activity itself and its association with physical violence, drug addiction and trafficking, organized crime and sex trafficking. Any Charter violations could be justified under Section 1 as a reasonable limit to rights "in a free and democratic society," they argued.

 

It was also put forward that the laws are a reflection of societal views, with the CLF asserting that "prostitution is immoral and should be stigmatized" and if the Charter provisions were struck down, prostitution would become a "last resort" occupation.

 

Almost a full year after hearing initial arguments, Justice Susan Himel of Ontario's superior court issued her 132-page ruling, siding with Bedford, Lebovitch and Scott and striking down three provisions in the Criminal Code. "These three provisions prevent prostitutes from taking precautions, some extremely rudimentary, that can decrease the risk of violence towards them. Prostitutes are faced with deciding between their liberty and their security of the person," Justice Himel writes.

 

"Thus, while it is ultimately the client who inflicts violence upon a prostitute, in my view the law plays a sufficient contributory role in preventing a prostitute from taking steps that could reduce the risk of such violence," she adds.

 

The Ontario Court of Appeal is reviewing the case in the wake of a challenge by the federal government. Jeremy Warning, a labour and employment lawyer at Heenan Blaikie in Toronto, says what happens in Ontario is not binding elsewhere, but cites the appeal court's influence.

 

"I would anticipate, regardless of the outcome, but particularly if it's struck down, you're likely to see an appeal to the Supreme Court of Canada," he adds.

 

 

Section 210 of the Criminal Code makes it illegal to own, use or even be in a place used for prostitution, a law the Ontario government argued was in place to protect the dignity of, and prevent physical and psychological harm to, sex workers, Justice Himel writes.

 

The inference, however, is not supported by the law's history. "The evidence suggests that working in-call is the safest way to sell sex; yet, prostitutes who attempt to increase their level of safety by working in-call face criminal sanction."

 

The Ottawa-based Canadian Centre for Justice Statistics reports that between 1994 and 2003, at least 79 prostitutes in this country were murdered while on the job. The overwhelming majority of deceased women worked the streets, despite these workers accounting for only five to 20 per cent of all prostitution activity in Canada.

 

When sex workers have a base of operations, there is the opportunity to work together and develop personal and professional relationships, says Frances Shaver, head of the anthropology and sociology department at Concordia University in Montreal. If a sex worker goes missing, his or her absence will be noticed, argues Shaver, who has contributed to three government-funded research projects into the sex industry and taken part in numerous independent studies.

 

As part of an inquiry into the actions of the Vancouver police and the Royal Canadian Mounted Police (RCMP) during Pickton's deadly spree, John Lowman, a prostitution researcher from Simon Fraser University in Burnaby, British Columbia, says that almost 150 on-street sex workers have gone missing or been killed in British Columbia since 1980.

 

The figure dwarfs the number of escorts and women killed while working in homes - two and one, respectively, Lowman notes. "Instead of having an opportunity to become serial killers, the men who murder indoor sex workers are usually apprehended relatively quickly, unlike the men who target street workers, who rarely leave tracks," he says.

 

Although working indoors is safer, sex workers based in brothels and homes or who make calls to clients' residences are not immune to violence, Kevin Vickers, chief superintendent of the RCMP, noted in the federal standing committee's 2006 study. Vickers said he had investigated deaths involving escort agency workers, citing two women "who worked specifically for an escort service right in Calgary. So violence is there."

Section 212(1)(j) of the Criminal Code makes it illegal to live parasitically "on the avails of prostitution of another person" - commonly referred to as pimping. "Prostitution, including legal out-call work, may be made less dangerous if a prostitute is allowed to hire an assistant or a bodyguard; yet, such business relationships are illegal due to the living on the avails of prostitution provision," Justice Himel writes.

 

The illegality of hiring bodyguards or drivers reduces the visibility of sex workers and removes an option for assistance should violence arise, Ross contends. "When those who provide you with transportation are at risk of being arrested and charged because they are transporting you for the purposes of sex work, this form of security enhancement no longer works to benefit those involved," Eleanor Maticka-Tyndale, professor of sociology and anthropology at the University of Windsor, told the standing committee.

 

 

Perhaps the most contentious Criminal Code section, namely 213(1)©, is the one that outlaws sex workers soliciting their services in a public place, including in vehicles. "The communicating provision impairs the ability of prostitutes to communicate in order to minimize their risk of harm," Justice Himel notes, reasoning that the provision was an unjustifiable limit on freedom of expression and "simply too high a price to pay for the alleviation of social nuisance."

 

The image of the woman leaning into a car deserves a closer look. "She's negotiating the terms of her employment and doing an environmental scan, seeing if there's anything dangerous in the car," Davis says.

 

"Under the current legal framework, that's illegal. She has to get in the car, close the door and drive away before negotiating the terms of her employment or having a moment to do a scan to see if the guy has a gun, is he sober, is he living in his car."

 

The federal Department of Justice's 1998 study, "Report and Recommendations in Respect of Legislation, Policy and Practices Concerning Prostitution-Related Activities", indicated Section 213 of the Criminal Code has not discouraged prostitutes from plying their trade; it has simply moved them out of the public eye and into harm's way.

 

All sex workers who testified before the standing committee agreed Section 213 forces on-street sex workers into the shadows, to isolated areas away from police and other protection services while giving their clients complete anonymity.

 

After the communication law was enacted in 1985 to reduce the visibility and nuisance of prostitution - it had previously been the solicitation law, which did not punish customers - local media in Vancouver reported an increase in the average number of sex workers murdered.

 

"It appears the discourse on prostitution of the early 1980s dominated by demands to 'get rid' of prostitutes created a social milieu in which violence against prostitutes could flourish," Lowman noted in a 2000 study.

 

Adds Ross, "We, as a society, continue to treat sex workers as a punching bag and they're very much seen as disposable, so when crimes and violence occur against them, we fail to take that seriously."

 

 

Back in 2005, a statement issued by the Canadian Union of Public Employees called on the Canadian Labour Congress in Ottawa to investigate the possibility of union representation for sex workers. "It is only fair that sex workers get the recognition and protection given other workers, including a minimum income, social security, sanitary and healthy workplaces, freedom from discrimination, harassment, violence and coercion, and the right to union representation."

 

Sexual service work is generic, "if you look at it from the point of view of providing a service to consenting adults," says Shaver. Provisions in the Criminal Code already deal with physical violence, sexual assault, sexual violence, coercion, kidnapping, theft "and all the rest of it, so those things would continue to be in place and continue to get called upon when necessary," she adds.

 

Knocking down the Criminal Code provisions under debate will clear the way for oh&s standards and labour laws, Shaver contends. "Demolishing the law is in place. We're demolition experts, but there's a big job in working to build up what can then be done," she says.

 

But there are plenty of questions that need answers. "How do you build up what we're going to have in the labour code? What kind of health and safety regulations do we need? How do we set in place some assistances to make it possible for sex workers to unionize, if they should choose to? What kind of educational programs can we set up if there are workers who would like to move on and do something else?" Shaver asks.

 

Toronto lawyer Jeremy Warning explains that if sex work is to be regulated under provincial health and safety legislation, industry-specific safe-work practices would need to be developed, the regulating body would have to create an enforcement protocol and inspectors and hygienists would need to be provided additional training.

 

"If the provisions are struck down and there's no other legislative change that's brought forward to recriminalize or otherwise regulate the sex trade, then there may well be a requirement or need for the government to regulate it if it becomes a legitimate profession or occupation," he says.

 

If sex trade work is legitimized as a profession in Ontario, the Employment Standards Act would apply, Warning says. Employment law would not be changed; rather it would "extend employment law's reach into what had previously been an unorganized or unregulated occupation."

 

Shaver points out that "if anybody is wanting to organize and run a business, if we've got our labour laws in place, then they will be subjected to the labour codes of what it means to be a responsible employer as well as what it means to be a responsible employee."

 

Davis says the West Coast Co-op of Sex Industry Professionals is working to develop a voluntary system of accreditation that would allow business owners to prove that they are ethical and are providing healthy and safe workplaces.

 

"Opening the Doors" from the Vancouver-based BC Coalition of Experimental Communities cites unclean workspaces and inaccurate information as a health issue for indoor sex workers. The "XXX Guide" from Stella in Montreal recommends sex workers always use condoms and gives tips on how to convince reluctant clients to do so.

 

However, Shaver notes, with 10 provinces and three territories, "what might happen in Alberta might be a whole lot different from what might happen in British Columbia, depending on how open people are to working with this new idea and this new vision of the sex industry."

 

If the Criminal Code provisions stay struck down, Alberta's Occupational Health and Safety Act should be ready to handle the new industry, Barrie Harrison, a spokesperson for Alberta Human Services, says from Edmonton. "As far as we're concerned, Alberta's OH&S Act applies to every occupation, employment or business, and the OH&S Act would have jurisdiction," Harrison says.

 

Already in existence are provincial requirements revolving around work-related violence and working alone, he notes. "At least initially, we feel that we probably have our bases covered," he says. However, "any time there's something new that comes up or we feel that some sort of provision needs to be made to our [oh&s] code, we would do that."

 

 

Ross and Shaver agree it is imperative that the voice of sex workers be part of the dialogue around development of oh&s requirements or policy. "The best person to direct their health and safety are sex workers themselves, which is why they need to be at the table when policies are decided that impact their lives," Ross maintains.

 

Harrison says that whenever new policies and amendments are being introduced in Alberta, the provincial government tries to bring all stakeholders to the table. "A lot of times it's certainly discussion within industry itself as to whether the current legislation is doing the trick. Does it apply to them? Are there any loopholes they feel we need to close?" he asks.

 

Regulating sex work like any other legal industry could result in minimum oh&s standards, employment contracts on minimum wages and working hours, possible access to workers' compensation benefits and access to any other benefits and restrictions that come with a traditional employment relationship, Warning says.

 

"Success depends upon the recognition and acceptance of [sex workers] as full citizens and sex work involving consenting adults as a legitimate revenue-generating activity," notes a 2010 study by Jacqueline Levis and Eleanor Maticka-Tynedale of 450 sex workers in street prostitution, exotic dancing, escorting and message.

 

Shaver says that she regards Justice Himel's decision as a big victory for the health and safety of sex workers, although there is still a long way to go. "All of the ways of making sex work safe are really against the law. If they want to operate safely, then they have to break laws," she says.

 

Ridding the landscape of "inappropriate laws" will serve as a step toward affording sex workers the same rights and protections now enjoyed by other workers across the country, Shaver suggests.

 

In 2003, New Zealand passed the Prostitution Reform Act (PRA), effectively decriminalizing sex work and opening up the industry to occupational health and safety regulation.

 

New Zealand's Occupational Safety and Health Service issued "A Guide to Occupational Health and Safety in the New Zealand Sex Industry," which outlines basic rules for employers, employees and sex worker organizations and provides explanations of what is expected for safe work. These expectations include the following:

 

 

Three years after the reforms rolled out, the New Zealand government had struck a multi-stakeholder committee to study the impact of decriminalization. Members included sex workers, brothel operators, a doctor, a researcher, a nun, a city councillor, a public health official, social workers and a retired police officer.

 

"The basis for working collaboratively was established through concentrating our efforts on the human rights, welfare, occupational health and safety of sex workers, and the prohibition of the use of young persons in prostitution," states the report, released in 2008.

 

The committee declared the PRA a success because the vast majority of sex workers were better off than before passage of the act, although they acknowledged a negative stigma around sex work persisted and many workers still experienced exploitative conditions.

 

"There is no doubt that there have been improvements all round for sex worker safety," Catherine Healy, national co-ordinator of the New Zealand Prostitutes Collective, says from Wellington. Healy points to the ability to challenge bullying bosses through dispute tribunals and mediation services and improved relations with police.

 

 

Researchers often say laws around sex work create a "discourse of disposal" that encourages violence and neglect from police, a situation made worse because the police are often a sex worker's only (albeit grudging) option for protection against violence and harassment.

 

John Lowman, a prostitution researcher at Simon Fraser University in Burnaby, British Columbia, testified during the Robert Pickton inquiry that police seem to be sending the message that the only way sex workers can get help is to stop the legal act of prostitution.

 

"They try to rehabilitate you - into what? What is it they want us to do?" laughs Susan Davis, a sex worker for 25 years.

 

In a study of escort licensing in Windsor, Ontario, researchers Jacqueline Lewis and Eleanor Maticka-Tynedale found that police justified ignoring violence against sex workers because they believed "the experience of victimization and lack of police assistance would provide incentive to leave sex work."

 

Frances Shaver, a sex work researcher at Concordia University in Montreal, says she has dealt with instances where police have refused to follow up on an assault charge because a sex worker would not agree to facilitate a pimping charge.

 

The criminalization of sex work makes it part of an illegal market and pushes sex workers into the criminal underground with gangs and drug dealers, notes an information booklet published by the Canadian HIV/AIDS Legal Network in Toronto. This encourages an adversarial relationship with police - fearing harassment, arrest or not being taken seriously, sex workers often will not go to police when they need help.

 

Knocking down the laws would help erode the barriers between police and the sex work industry, argues Rene Ross, director of the Halifax-based Stepping Stone, and encourage workers to report crimes against them.

 

 

Some Canadian studies and experts have cautioned against the potentially volatile situation that could arise in a showdown between federal and provincial or municipal safety requirements.

 

If the laws are struck down, it would be possible for the provinces or municipalities to set policies that would "create new quasi-criminal or punitive regimes that just use fines and penalties to do what the criminal law was doing, but at a lower level," says Frances Shaver, head of the anthropology and sociology department at Concordia University in Montreal.

 

Many municipalities across the country already have licensing systems for escort, body rub and massage parlours, representing a "schizoid system of regulation" that refuses to acknowledge it is licensing sex work, contends John Lowman, a prostitution researcher from Simon Fraser University in Burnaby, British Columbia.

 

"Escorting isn't about prostitution... it is prostitution. But we can't say that," one police rep is quoted as saying in Jacqueline Lewis's and Eleanor Maticka-Tynedale's 2000 study of escort licensing in Windsor, Ontario.

 

The study found that licensing can create confusion over the legal status of the work. After a raid, brothel owners could not understand how they could be charged with living off the avails of a prostitute, but the city and Revenue Canada could make money though escort and brothel licences and taxing the industry.

 

"This is ridiculous. How can anyone imagine that escort work is about anything but sex?" one sex worker said.

 

This sentiment was echoed in a 2005 Sex Trade Advocacy and Research report, which found that licensing could prevent managers from providing occupational health and safety information and safe sex supplies because owners and operators had to pretend there was no sex work going on.