The Protection of Communities and Exploited Persons Act (PCEPA) was introduced on June 4, 2014 and came into force on December 6, 2014. The Act was a reaction to Bedford v Attorney General of Canada, a Supreme Court of Canada case that struck down the old sex worker provisions as unconstitutional because they infringed the Charter right to security of the person.
PCEPA’s main objectives are to reduce the demand for sex work, to protect communities from the harms inherently caused by sex work, and to protect sex workers themselves from the harms inherently caused by sex work. PCEPA achieves these objectives by criminalizing sex work for buyers of sexual services but not sex workers themselves.
In PCEPA’s preamble, the government of Canada denounced sex work as an inherently dangerous activity that harms both communities and sex workers. Under this view, purchasers and facilitators of sex work necessarily exploit sex workers, and sex workers are exploited victims who require support and assistance.
Reflecting PCEPA’s three main objectives, the Act’s provisions can be divided into three topics: criminalizing the sex work market, protecting sex workers, and criminalizing harms to communities.
A) Criminalizing the Sex Work Market
PCEPA criminalizes the sex work market by making it an offence to do the following: purchase sexual services; receive material benefit from the sex work of others; procure or pimp another person to perform sex work; and advertise the sale of sexual services. These provisions criminalize the practice of sex work and other related activities in the sex work market in order to reduce demand for sexual services.
Section 286.1 of the Criminal Code makes it an offence to purchase sexual services for consideration or to communicate in any place for that purpose. This offence requires a contract or agreement for a specific sexual service in return for some form of compensation, such as money or gifts. Purchasers of sexual services can face maximum penalties of 5 years imprisonment by indictment, or 18 months by summary conviction, as well as escalating mandatory minimum fines.
Sources: Criminal Code.
B) Receiving Material Benefit from the Sex Work of Others
Section 286.2 of the Criminal Code makes it an offence to receive material benefit from the sexual services of another person. Importantly, sections 286.2(4) and 286.2(5) outline exceptions to this offence, allowing sex workers to provide material benefits to non-exploitive parties. These parties include co-tenants, family members, dependants, certain protective employees such as body guards, and certain public firms such as Internet Service Providers. Purchasers of sexual services can face a maximum penalty of 10 years imprisonment, with a mandatory minimum sentence of 2 years.
Sources: Criminal Code.
C) Procuring or Pimping Another Person to Perform Sex Work
Section 286.3 of the Criminal Code makes it an offence to procure or pimp another person to perform sex work for consideration. This section also makes it an offence to facilitate sex work by recruiting, concealing, or harbouring sex workers, as well as to exercise a degree of control, direction, or influence over the movement of sex workers. Purchasers of sexual services can face a maximum penalty of 14 years imprisonment.
Sources: Criminal Code.
D) Advertising the Sale of Sexual Services
Section 286.4 of the Criminal Code makes it an offence to advertise the sale of sexual service. This offence requires knowingly placing these advertisements in any media, such as in person, in print, or online. Advertisers of sexual services can face maximum penalties of 5 years imprisonment by indictment or 18 months by summary conviction.
Sources: Criminal Code.
Protecting Sex Workers
The PCEPA does not punish sex workers who engage in their own sex work. Section 286.5(1)(a) prevents sex workers from being prosecuted for receiving a material benefit, such as money or gifts, for their own sex work. Section 286.5(1)(b) prevents sex workers from being prosecuted for advertising their own sexual services. Section 286.5(2) prevents sex workers from being prosecuted for aiding or abetting acts under sections 186.1 to 186.4 if it is for their own sexual services.
Criminalizing Harms to Communities
PCEPA criminalizes harms to communities by making it an offence to do the following: stop or impede the flow of pedestrian or vehicular traffic for the purpose of purchasing or selling sexual services in public; communicate for the purpose of selling sexual services in certain community locations that are used by children; and own or reside in a common bawdy-house for the practice of acts of indecency.
A) Purchasing Sexual Services in Public
Section 213(1)(a) of the Criminal Code makes it an offence to stop or attempt to stop motor vehicles in a public place or in any place open to public view for the purpose of purchasing sexual services. Section 213(1)(b) makes it an offence to impede the flow of pedestrian or vehicular traffic in a public place or in any place open to public view for the purpose of purchasing sexual services. This provision reflects the government’s stance that only the purchasers of sexual services should be punished; sex workers who engage in these activities to sell sexual services will not be punished. Offenders can face fines of up to $5,000 or 6 months imprisonment or both.
B) Selling Sexual Services in Community Locations
Section 231(1.1) of the Criminal Code makes it an offence to communicate for the purpose of selling sexual services in a school ground, playground, or daycare centre, or in a public place that is next to these community locations. This provision, consequently, directly affects those in the sex work industry. This provision also reflects the government’s stance that sex work is inherently dangerous and exploitive, in that it would be harmful for children to view such activity. However, acknowledging the need to also protect sex workers, the provision allows for sex workers to sell sex work in other public areas. Offenders can face fines of up to $5,000 or 6 months imprisonment or both.
C) Owning or Residing in a Common Bawdy-House
Section 210(1) of the Criminal Code makes it an offence to own or reside in a common bawdy-house. Section 197(1) defines a common bawdy-house as a place meant for the practice of acts of indecency. Under this definition, sex work is not inherently indecent, legally allowing sex workers to keep a house for prostitution.
How PCEPA Affects Current Sex Workers
Sex work is criminalized in Canada through PCEPA, making it an offence to participate in the practice for all parties involved in the transaction except for sex workers themselves. On a policy level, this decision further stigmatizes the practice of se work by necessarily associating it with illegal activity and exploitation.
Despite exemptions from criminal prosecution, this approach to addressing sex work in Canada may negatively and directly affect the practice of sex work for both sex workers in general and transgender sex workers in particular.
A) General Sex Workers
Broadly, the criminalization of sex work will likely negatively affect how purchasers of sexual services and other third parties interact with sex workers. Given the possibility of criminal sanction, these parties may be hesitant to interact with sex workers or be forced to interact with sex workers underground.
a. Purchasing sexual services
Purchasers of sexual services will likely be driven underground in order to elude police detection. This movement may worsen conditions for sex workers because these underground interactions with clients will likely be in isolated locations where sex workers cannot rely on police for protection. Sex workers may also find it difficult to properly screen potential clients in these locations or when these clients want to rush the screening process to better elude the police.
b. Receiving a material benefit from sex work
Although PCEPA provides exceptions to the provision that criminalizes receiving a material benefit from sex work, the terms may be enforced improperly due to vagueness and uncertainty of the terms. Some non-exploitive relationships may share some characteristics with those that do, such as the existence of a commercial element. There may be barriers to creating reasonable and professional relationships that enhance safety or provide services due to this uncertainty.
c. Selling sexual services in community locations
Sex workers are not exempt from communicating for the purpose of selling sexual services in or next to school grounds, playgrounds, and day cares, potentially harming sex workers who practice on the street. That is, they may also be driven to underground and isolated locations, where they face increased barriers to safety.
B) Trans-identified Sex Workers
Although there is currently no research on how PCEPA affect transgender sex workers, research from the pre-Bedford regime may be illustrative. Transgender sex workers faced intersecting challenges due to the stigma associated with both their occupation and their gender identity. That is, these sex workers not only had to contend with the marginalization of being in the sex industry and of being transgender separately, but they also experienced further violence through sex work clients who realized that they were transgender.
PCEPA’s provisions will likely do little to address these systemic barriers for transgender sex workers. The provisions explicitly denounce sex work as an inherently dangerous and exploitive activity, and they do not address the particular needs of vulnerable populations who also practice sex work. Consequently, the stigma associated with both practicing sex work and identifying as transgender is not addressed, and will likely allow the experiences from the pre-Bedford regime to persist.
Sources: Protection of Communities and Exploited Persons Act; Bedford v Attorney General, 2013 SCC 72; Chris Bruckert and Frédérique Chabot, “Challenges: Ottawa sex workers speak out”; Ibid at 100.