Course:GRSJ224/Nivedha Raveinthiranathan/Assignments

Migrant sex work in Canada - Legal Issues

Migrant sex workers (MSWs) are individuals who have translocated – often across an international border – to work in the sex industry. Canada has emerged as a key country for migrant sex work in recent years, with a significant influx of MSWs seen in urban centres. MSWs in Canada remain at the core of significant national discussions about the legality of sex work, the differences between sex work and trafficking, and responses from all levels of government.  

Current context

The illegal status of sex work precludes any reliable statistics on the number of MSWs in Canada, although a significant proportion of sex workers are believed to be foreign-born. MSWs report various reasons for their involvement in sex work - some migrants move to Canada intending to work in commercial sex work while others may turn to commercial sex when alternate labor forms prove to be less lucrative.

Although migrant sex workers engage in various forms of sex work, they typically work in indoor locations, such as massage parlours, strip clubs, or perform escort services at home or their clients’ residences.

Migrant sex workers can be at various points in the spectrum of migration. Some may have secured or are in the process of applying for Canadian citizenship or permanent residence, or may be in the country on temporary tourist, work, or student visas. Still others may be refugees or undocumented.

Legal status of migrant sex workers

MSWs face legal issues that can be complex, given that they are subject to both criminal and immigration law, as well as municipal regulation of the venues they work in.

Sex work laws

The set of laws governing sex work in Canada is known as the Protection of Communities and Exploited Persons Act (PCEPA), introduced in 2014. Although it is legal to sell sexual services, several key activities related to sex work are illegal. This includes purchasing or advertising sexual services, receiving material benefits from sex work, procuring a person to offer or provide sexual services, or communicating for the purpose of selling sex.

Immigration laws

The Immigration and Refugee Protection Act (IRPA) explicitly prohibits MSWs from employment in business related to the sex trade, such as in strip clubs, massage parlours, and escort services. It is intended by the Canadian government to limit the risk of sexual exploitation and trafficking. It is the only legal line of work that migrants cannot be involved in.

Municipal by-laws

Municipal authorities regulate sex work industries through licensing fees and several by-laws, such as keeping premises’ entry and massage room doors unlocked and maintaining unobstructed windows in massage rooms. This allows them to perform regular venue inspections and issue fines for violations.

Sex work versus Trafficking

Central to the national debate on sex work is the issue of consent, which delineates labor from trafficking. From a legal perspective, consent involves "a person’s capacity for agreement free from fraudulent representation, force or undue pressure." MSWs state that although there are issues of sexual trafficking that must be addressed, many MSWs have agency and are involved in sex work with consent.

Government response

The Canadian government has adopted an anti-trafficking and end-demand approach to the sex work industry, which defines its laws (such as PCEPA and IRPA) and policing practices. For example, Public Safety Canada, a federal body responsible for protecting Canadians, has committed $14.51 million over five years (beginning in 2018-19) to combat trafficking while Ontario committed $72 million over 4 years in 2016. This kind of funding has historically been distributed primarily to law enforcement for large-scale and widespread anti-trafficking investigations such as Operation Northern Spotlight.

Operation Northern Spotlight

Operation Northern Spotlight was a 2-day investigation in January of 2014 into human trafficking and sex exploitation across 30 police centres in Canada. It involved targeted raids of hotel/motel establishments and other sex work venues. 180 police personnel interviewed 333 women deemed “most vulnerable and likely to be exploited” and identified 25 suspected human traffickers. Of the 333 women interviewed, 6 came forward as victims of trafficking.

Impact on MSWs

Several MSW and community-based organizations have criticized the conflation of sex work and trafficking in the legal and policing system. As the anti-trafficking framework is applied indiscriminately to all persons who migrate to Canada and become involved in the sex industry, laws like PCEPA and IRPA have been said to be “anti-sex work, anti-migrant, and racist” and “used as tools to prosecute rather than protect some of the most marginalized women in the sex industry who are at heightened risk of human trafficking.”

Racist and unfair targeting of racialised SWs

Stings and raids on sex work venues resulting from anti-trafficking policies have been shown to have a significant detrimental impact on MSWs. Community-based advocates criticize the indications of trafficking used by law enforcement as inherently xenophobic and racist, perpetuating migrant sex trafficking victim stereotypes and misinterpretations.  For example, in situations where many non-white (particularly Asian) sex workers who speak accented English work together, this has often been targeted as trafficking whereas the same is not done for a group of white, Canadian-born sex workers.

Fear of police as a barrier to justice

Several qualitative studies have highlighted the significant fear that MSWs have of interacting with police and the Canadian Border Services Agency (CBSA), and MSWs have been shown to spend a lot of time strategizing how to avoid police detection to avoid arrest, detention, or deportation.

MSW have reported that when they are interrogated by law enforcement during anti-trafficking investigations, they are forced to identify as victims of exploitation or confess to working of free will, in which case they are fined, arrested and/or deported.

A previous study of MSWs in Metro Vancouver found that sex workers who are awaiting permanent residency or citizenship are reluctant to report violence in fear that their application will be rejected. 95% of Chinese sex workers participating in a study conducted in Vancouver and Toronto stated that law enforcement would not be a strategy they would use to seek assistance, with none of the participants from Toronto reporting that they would call the police if they experienced violence or exploitation.

Critics of indiscriminate anti-trafficking policies highlight how MSWs are forced to work in more hidden places without access to justice, which “increases migrant sex workers’ vulnerability to violence, exploitation, and trafficking.”

Stigma

Stigma has been identified as the “single most common and pervasive effect on women’s reporting behaviours” when it comes to violence in sex work. In a study of MSW in Metro Vancouver, MSW say that they would report violence to co-workers and third-parties involved in sex work, but no others due to fear that personal information would be shared (i.e. their status as sex workers will be “outed”) and the impact that might have on their personal and family life. Anti-trafficking policies, which receive a lot of support from the general public, have been cited as a key factor in perpetuating stigma of sex work as being inherently exploitative or a moral sin.