Sex Trafficking Laws and the Marginalized: How Compassionate Conservatism Perpetuates Colonialism

  • October 09, 2024

by Tennile Sunday, 2024 winner of the Writing Them In Essay Contest

Introduction

Sex trafficking laws in Canada are shaped by the unsupported position that sex trafficking is a widespread and unquantifiable phenomenon impacting the most vulnerable and marginalized communities. Anti-trafficking pursuits have influenced laws around sex work to the point that sex work laws have become reflections of trafficking laws.1 Sex work laws have been positioned as being in place to save vulnerable people from exploitation, in other words, to save them from sex-trafficking. This represents a mischaracterization of the issues, construing all sex work as exploitation and situating it under the umbrella of “sex trafficking.” This approach places all people involved in sex work – in large part migrant, immigrant, and Indigenous women – as victims, but more specifically as morally deficient women in need of reform.2

This position is in line with, and representative of, the compassionate conservative approach that involves a balance of priorities: “compassionately” assisting those perceived to be in need, while demanding accountability and reform.3 In legal and regulatory approaches to sex work, compassionate conservatism centers on victimization. It emphasizes the state’s willingness to step into a saviour role to extend “help” to those it miscasts as victims while employing punitive measures against anyone it deems not to fall within this exception.4 Neither possibility acknowledges the legitimacy of sex work nor helps facilitate safety within the industry. It embraces moral panic, an historical, colonial stronghold in Canada that has long-influenced sex work regulation and immigration law.5 Moral panic relies heavily on racial biases and colonial classifications of Indigenous and Asian women as sexually promiscuous and posing threats to the morality and thus to the “character” of settler-society.6

In tracing this connection between historical Canadian values and the development of present-day laws and regulations, I argue that current approaches to sex trafficking are representative of ongoing colonial efforts and that their impacts – shared and distinct – on migrant, immigrant, and Indigenous women establish that this approach to sex trafficking is also a tool used to uphold and reinforce settler-colonial white nationalist values. To demonstrate this, this paper provides an overview of Canada’s historical approaches to sex work, Indigeneity, and immigration. It outlines the stated purposes of the Protection of Communities and Exploited Persons Act (PCEPA) and the case that led to its inception, Bedford v Attorney General of Canada (Bedford). It discusses the actual on-the-ground impacts of current and past sex work legislation. It contrasts modern laws with historical attitudes and policies, taking the position that despite the purported differences between current and past laws and policies, the effects are much the same in that both contribute to the marginalization of Indigenous, immigrant, and migrant women. This paper argues that such legislation reinforces colonial values and works to alienate, other and increase the vulnerability of Indigenous, immigrant, and migrant sex workers.

Historical Law and Policy

Early twentieth-century Canada exhibited profoundly racist ideas that impacted the colonial approach to Indigenous peoples, as well as immigration policies.7 Canadian “character” hinged heavily on sexual morality and purity, with white people, especially those of British descent, being seen as purer and more moral than Indigenous or racialized people.8 Indigenous people and racialized immigrants were viewed as having less self-control over their sexuality and were considered incapable of leading civilized lives.9 Thus, systemic control was established to promote social cohesion with British values. This included the creation of the Indian Act, as well as immigration policies that worked to maintain whiteness in Canada.

The Indian Act’s overall goals were and are to tear Indigenous peoples from their land and eliminate them socially and legally.10 Threatened by Indigenous social structures that placed women at the helm, the Indian Act worked to destabilize and minimize the position of Indigenous women within their communities. Part of the strategy behind this was and is to impose Indian status requirements along patrilineal lines, contrary to the matrilineal organization of Indigenous societies, thus depriving Indigenous children of Indian status.11 Unlike the settler-colonial approach to women and sex, in Indigenous cultures women’s sexual autonomy and bodies were viewed as powerful, and sex was seen as natural.12 The settler-colonial approach led to Indigenous women being perceived by the state as sexually immoral and miscast as “prostitutes.”13 This perception further marginalized Indigenous women, identifying them as impure and inciting moral panic that led to laws against Indigenous sex workers being incorporated into the Indian Act in 1879 and the Criminal Code in 1892.14 Provisions of the Indian Act criminalized Indigenous participants in sex work, ignoring non-Indigenous participation, while the Code prohibited sex workers from being in public spaces.15

The Indian Act and sex work laws were presented as a way to free Indigenous women from oppression within their own nations. In actuality, they punished Indigenous women, forcing them into a colonial ideal, and stripping communities of their rights to self-determination and governance while disproportionately criminalizing Indigenous women (a practice that continues today). This is a prime example of legislative settler-colonial compassionate conservatism: purporting to help Indigenous women while creating punitive legal barriers that infringe on their inherent rights. These impacts on Indigenous women are echoed and reinforced in modern sex work and sex trafficking laws.

In conjunction with laws impacting Indigenous women, immigration policies guarded against racialized immigrants mixing with white settlers, setting out to “[protect] the purity of [their] national lifeblood.”16 Although British newcomers were most welcomed, white immigrants in general were seen as being more desirable than racialized immigrants as it was thought that with their shared European values they could better integrate into Canadian society.17 Immigrants who were viewed as being unassimilable or not readily assimilable because of perceived moral deficits were to be passed over.18

For instance, it was assumed that Chinese women were sex workers or “slaves” in need of moral reform and rescue, thus the Women’s Missionary Society began the Chinese Rescue Home meant to save, evangelize, and “civilize” Chinese women.19 This effort represented an early settler-colonial compassionate conservative effort as it leaned into victimization and also repentance, the latter of which is considered an essential stage in Christianizing, requiring individuals to renounce their sins, and represented an incorporation of the “accountability” requirement of compassionate conservatism. Institutional racism of this nature resulted in restrictions on Japanese and Chinese immigration, set out, for example, by the Chinese Immigration Act of 1885 which implemented head taxes for Chinese immigrants, and prohibited any Chinese woman who was deemed to be a “prostitute” from becoming a landed immigrant.20 Similarly, the 1894 Anglo-Japanese Treaty of Commerce and Navigation that Canada entered into in 1905 was an agreement requiring Japan to restrict emigration to Canada.21

Denial of entry to Asian immigrants, based on sexual morality concerns was not only a means of controlling migration but also worked to promote homogeneity in Canada, supporting European claims of being native to the land, painting whiteness as the norm, and further othering and marginalizing Indigenous peoples.22 This is representative of the logic of exclusion, which reinforces settler-colonial control via excluding and othering racialized immigrants.23

PCEPA: How modern laws conflate sex work with sex trafficking

The Stated Purposes of PCEPA

Current legislation, in particular, the Protection of Communities and Exploited Persons Act (PCEPA), purports to have different goals than its failed predecessors.24 PCEPA presented Criminal Code25 provisions drafted to replace invalidated sections of the Code found to be unconstitutional by the Supreme Court of Canada in the Bedford case of 2013.26 The stated objectives of PCEPA are, overall, to view sex work as a form of sexual exploitation, focusing on reducing demand for it, discouraging entry into it, deterring participation in it, and eliminating it as much as possible to safeguard communities.27 This overview of objectives stops just short of stating that sex work should be criminalized; however, it makes clear that the goal of these provisions is to end sex work entirely, for the protection of racialized and Indigenous women.28 This framing is used to target the most marginalized through the discourse of protection. Further, the emphasis on preventing exploitation and promoting community protection conflates sex work with sex trafficking. In fact, throughout the technical paper associated with PCEPA, there are several points at which connections are specifically drawn between sex work and trafficking.29

In recent years, there has been an increased social awareness about human trafficking and sex trafficking, with many organizations and campaigns responding to the perceived issue. Interest in this area and the associated moral panic has resulted in the development of what is known as the “rescue industry.”30 The moral panic around the issue of sex trafficking positions it well out of proportion to the harm or danger it actually poses.31 Further, the yoking together of sex work and sex trafficking provides a victim narrative about sex workers that, while contrary to much sociological research, is very palatable to the public and represents a cause perceived to be worthy of pursuit. Organizational and social support of PCEPA is consequently easy to garner. The technical paper sets out that the objectives of the provisions stem from conclusions drawn from social science research leading to the deduction that sex work negatively impacts communities through “related criminality, such as human trafficking.”32 The causal inference being drawn here about harm is that sex work leads to, or is synonymous with, human trafficking. It also stretches the nature of third parties and commercial contributors in sex work – that is, people who may assist workers with their business, or provide establishments or venues where they can work – into trafficking territory, banning third parties from profiting from the sex work of others and prohibiting “commercial establishments.”33 It goes so far as to make linkages between sex work provisions and other Criminal Code provisions that specifically prohibit human trafficking. For example, it analogizes the procuring offence, which covers very broadly any sort of facilitation of the sale of sexual services, with a provision meant to address human trafficking by prohibiting recruitment, transportation, transferring, holding, concealing, or harbouring a person for the purpose of exploiting them.34 Its material benefit provision mirrors the prohibition against materially benefitting from human trafficking.35 Thus, these laws problematically cast friends, employers, and patrons of sex workers as sex traffickers, thereby criminalizing those who are crucial to the earning potential of sex workers, depicting sex workers as victims, and depriving sex workers of any agency they might otherwise have.

The punitive model is based on the ‘Nordic Model,’ followed by Sweden, Iceland, and Norway, which considers these measures as prevention and combat of human trafficking and claims to have reduced participation in sex work. Amusingly, the technical paper states, “The Swedish government has seen no concrete evidence that prostitution has been merely displaced and not reduced.”36 In reading between the lines, one can deduce that Sweden therefore has not seen any concrete evidence of the contrary. In other words, there is no proof that sex work has not been merely displaced and not reduced. Another purpose frequently stated throughout the technical paper is that the laws are, in addition to and in conjunction with preventing trafficking, meant to protect vulnerable people. This is a reason given for the increased minimum fines to purchasers of sexual services.37

The paper also acknowledges that the main participants in sex work are women, with “marginalized groups, such as Aboriginal women and girls, [being] disproportionately represented” and that protecting them from violence is a key component of the Act.38 Yet, again, with an interesting choice of phrasing, the paper states that the evaluation of the ‘Nordic Model’ “did not find any evidence of increased violence against women in street-based prostitution following the coming into force of the law.”39 Thus, Canada seems content with a “no news is good news” model rather than actively pursuing approaches to sex work regulation that might substantially address their stated concerns by actually reducing violence against women. Further, in a recent constitutional decision, the court rejected the argument that PCEPA has created conditions that result in a lack of safety for sex workers, despite compelling evidence to the contrary.40 In fact, to push PCEPA and the ‘Nordic Model’ as tools that would achieve the stated desired results, reports from Sweden of increased harassment of sex workers by law enforcement, and reduced health and safety of sex workers were ignored.41 The disconnect between the laws’ stated objectives and their on-the-ground impacts is vast and will be discussed in greater detail later in this paper.

How Bedford Provided the Foundation for PCEPA

As discussed above, the SCC in Bedford ruled that three sections of the Criminal Code related to sex work were unconstitutional, suspending the declaration of invalidity for a year, and giving Parliament time to put together its legislative replacement: PCEPA. The overturned sections (sections 210 (keeping a common bawdy house), 212(1)(j) (living off the avails) and 213(i)© (communicating for the purposes of prostitution)) were heavily criticized as being largely to prevent social nuisance, community harm and commercialization while unjustly infringing on sex workers section 7 Charter rights to life, liberty and security of the person by preventing sex workers from implementing safety measures such as hiring security workers, or screening potential clients.42 The purposes were considered reasonable, but the effects were overbroad and disproportionate. The laws were not discussed by the SCC as being relevant to trafficking or created in response to trafficking concerns.

Yet, these provisions had substantially the same impacts as the new legislation under PCEPA;prohibitions against “living off the avails,” “keeping or being in a common bawdy house” or “communicating for the purposes of prostitution,” were simply pared down versions of PCEPA’s material benefit, advertising and procuring offences. The lack of explanation around the earlier provisions left an opening for PCEPA to step in and redefine the purposes, casting them under the light of ending trafficking and protecting vulnerable people – efforts that are well-received and harder to argue with – while still delivering the results of past legislation: that is, still preventing public nuisance perceived to be caused primarily by Indigenous and racialized sex workers. The most salient change from Bedford to PCEPA is the criminalization of the purchase of sex work, which makes every sexual service transaction illegal – a situation that was not in place before PCEPA. Here you can see the staircase leading from sex work laws into sex trafficking laws, and the calculated nature of the appeal to the compassionate conservative social faction; the literature around PCEPA states repeatedly that protecting vulnerable people, specifically “minorities and Indigenous women and girls” is at the heart of its objectives, while still heavily featuring punitive measures meant to deter them from earning a living via sex work.43

Actual Impacts of PCEPA and Sex Trafficking Laws

Impacts on Immigrant and Migrant Sex Workers

The synchronicity of PCEPA provisions criminalizing sex work-related activities and other Code provisions relating to human trafficking result in severe ramifications for immigrant and migrant sex workers. These provisions further intersect with “crimmigration” provisions of the Code, in particular section 36 of the Immigration and Refugee Protection Act (IRPA) which functions to take status away from those without citizenship if they have been found to have committed crimes including those set out under sex work and trafficking laws.44 Under IRPA, any non-citizen individual convicted of such a crime may be imprisoned or deported.45 Modern legislators and policymakers do not state their racist objectives so baldly as they did historically, just the opposite. These laws are positioned as being in place to protect vulnerable racialized women (an umbrella term that necessarily includes immigrant and migrant women) and “preclude situations in which racialized immigrant or migrant women might be exploited or become victims of human trafficking.”46 Yet, the impacts of such crimmigration laws are very much extensions of Canadian law’s colonial beginnings. These biased exclusionary mechanisms both keep out “the other,” and work to preserve a homogenized white dominant culture, further dispossessing Indigenous people and communities.

While IRPA, in conjunction with sex work laws, essentially evicts migrant sex workers from Canada through criminal inadmissibility, provisions of the Immigration, Refugee and Protection Regulations (IRPR) take sex work laws further.47 Not only do they prevent racialized immigrants from entering sex work in Canada – an occupation that is legal for citizens – they also prevent racialized immigrants from working in a multitude of other jobs available to them.48 Legislators and policymakers have not incorporated into law the possibility that sex work or sex work adjacent fields in Canada may be comparatively safer and provide more economic stability than the circumstances prospective immigrants and migrant women face in their home countries. A holistic analysis of these laws demonstrates that the posturing of Canada as a nation that will not abide exploitation of vulnerable racialized women is a façade and points to racially motivated and exclusionary rationales that embrace early colonial ideologies. The unstated objectives involve creating a moral and pure society by excluding sex workers, and by characterizing all racialized immigrant and migrant women as sex workers – a contingent undesirable to Canadian society.49 The compassionate conservative concept that racialized immigrant and migrant women in sex work are policed and deported for their safety does not hold up to any objective scrutiny.

Enforcing this federal legislation requires the active involvement of border guards and customs officials, placing more control into the hands of state actors, reinforcing colonial control, and granting too much power to people with limited expertise in the area of identifying human trafficking.50 Federal legislation has also had a trickle-down impact, bringing anti-trafficking measures into provincial and municipal law, and thereby increasing the monitoring of immigrant and migrant workers in small business venues such as massage parlours and other establishments where sex workers operate.51 The Royal Canadian Mounted Police (RCMP) and Ontario Provincial Police (OPP) for example, through Provincial anti-trafficking initiatives, have posed as clients in order to make arrests and press charges against sex workers in their workplaces.52

While such trafficking raids rarely result in findings or charges for human trafficking, they do result in sex work charges, which can harm the economic and social positions of immigrant sex workers, and put migrant sex workers at risk for detention, incarceration, and deportation.53 The rarity of trafficking charges being levied supports the fact that human trafficking is not nearly as widespread as law and policy indicate. It is also worth noting that if non-citizens are found to be victims of human trafficking, there is a potential for them to be recipients of temporary residency permits, which would preclude them from being charged with sex work related offences, temporarily preventing their subsequent detention or deportation.54 Therefore, if trafficking is not found, there can be no victims of trafficking, and sex work charges can be pressed, leaving deportation as a potential consequence.

Municipal by-laws are also problematic for immigrant and migrant sex workers, as they provide by-law enforcement officers with the ability to search establishments where sex work might occur for the purposes of health and safety, public nuisance, and crime prevention.55 While in these cases, officers are only supposed to be able to search the premises, there is a risk that immigrant and migrant workers who are not legally sophisticated may incriminate themselves by answering questions they are not legally required to answer and having their responses considered to be legal statements that may result in them being fined large sums anywhere between five hundred to one hundred thousand dollars. Further, municipal bylaws provide easy ways to access and search premises, which can encourage collaborations between bylaw officers and law enforcement who would not normally have such access. By-law officers may also contact police, threatening the risk of deportation for migrant sex workers, as well as the risk of search and seizures that deprive immigrant and migrant sex workers of savings and possessions.56 Obscenely high fines and the constant threat of losing immigration status, being deported, or having money and possessions seized fortify the settler-colonial position, as those most at risk of losing status in Canada are racialized, impecunious immigrants and migrants. The exclusionary power of the state creates fear and further marginalizes them.

While the above-outlined impacts result from the intertwining of PCEPA and sex trafficking laws, the direct impacts of the provisions of PCEPA on racialized immigrant and migrant sex workers are also worth noting. Being accused of trafficking, or being criminalized as a third party is a risk for sex workers, particularly immigrant and migrant sex workers for whom there may be language barriers, a lack of familiarity with the community, or a general lack of resources.57 Immigrant or migrant workers may be more inclined to rely on their networks to obtain work and to work safely, and money may be shared or transferred between workers to compensate for the help received.58 Therefore, any single individual within a network runs the risk of being criminalized as a third-party beneficiary or even a commercial enterprise.

Not only can this discourage immigrant and migrant sex workers from working together or working in indoor locations where there might be more security available to them, but fear of criminalization and subsequent risk of deportation also prevents these individuals from reaching out to law enforcement in emergencies.59 This substantially increases their vulnerability and the potential for health and safety risks.60 These laws also have a stigmatizing effect, causing friends and loved ones to distance themselves from sex workers for fear of criminalization, or causing sex workers to insulate themselves from ostracization by being secretive about their work. Stigma results in danger to sex workers, as family members and friends are the second most likely group to help sex workers out of violent situations.61 These punitive aspects of the compassionate conservative approach to sex work have marginalizing effects that push sex work by immigrant and migrant women underground, making them social pariahs and protecting the white nationalist status quo.

Impacts on Indigenous Sex Workers

As outlined in other sections, the pointed exclusion from Canada of racialized immigrant and migrant women in sex work (or suspected to be involved in sex work) is in itself an assertion of colonial control that emphasizes the power of the state in governing who belongs on this land and who does not. This diminishes Indigenous presence and control of the land and further perpetuates a society where the dominant, socially acceptable culture represents Euro-centric values and is comprised of whiteness. In addition to these impacts, there is also overlap in how PCEPA impacts Indigenous, migrant, and immigrant women in that safety and health effects are much the same; yet, for Indigenous women, this legislative neglect and control of health and safety represent a pattern of colonial behaviour intended to subjugate Indigenous women. The roots of this are visible in early colonial treatment of Indigenous women and are a thread that continues through to today.

Marginalizing Indigenous women by threatening criminalization and placing their health and safety at risk reduces their social standing and impacts their ability to govern or have voices in their communities. It also increases fear and distrust of state actors like law enforcement which not only jeopardizes Indigenous women but positions them as outsiders.62 This is harmful to Indigenous women and detrimental to Canada’s duties of reconciliation. The sex work laws in the Indian Act, along with residential schools that ripped children from their families and resulted in abuse, forced assimilation, and genocide – were colonial acts that devalued Indigenous people and the roles of Indigenous mothers and communities.

This systemic abuse has persisted over the years, flowing into Indigenous child welfare laws and the ‘60s scoop that took Indigenous children from their mothers and out of their communities.63 It is also seen in the forced sterilization of Indigenous women, which is both historical and ongoing with a class action currently in progress, and in the context of birth alerts, a practice in which Indigenous mothers are reported to be unfit after giving birth and having their newborn babies taken from them.64 These laws and policies were (or are) all constructed under the guise of helping and protecting Indigenous women and children, treating Indigenous women as savages in need of saving, but in practice, they simply degrade and exploit Indigenous women and reinforce patriarchy.65

Significantly, the crisis of Missing and Murdered Indigenous women, girls, and two-spirit people (MMIW) also gets dragged into the sex-trafficking dialogue, despite Indigenous women’s organizations having previously stated that the issues are separate and distinct. Most problematically, the Canadian government has applied pressure on Indigenous organizations to identify the MMIW crisis as a sex-trafficking issue. The Native Women’s Association of Canada (NWAC), for example, previously maintained that trafficking was a separate issue to MMIW, but backtracked on this two years later after the Canadian government reduced their funding significantly and attempted to restrict them from using the name Stolen Sisters, which was the title they had used for their report on the MMIW crisis.66

The inference can be drawn that to keep supporting Indigenous women impacted by the MMIW crisis and to continue to pursue justice, NWAC was pushed into a corner in terms of how they identified and contextualized the issue. Attaching the MMIW issue to sex trafficking is a position that, coming from NWAC, is particularly stigmatizing to Indigenous women and sex workers as it necessarily follows the trafficking narrative of victimization, adopting a compassionate conservative approach itself. This represents a reverberation of the overall disempowerment of Indigenous women and the colonial repainting of traditional governance structures. It also recalls the assimilation goals of early colonialism, leaving Indigenous women’s organizations with no choice but to “go along to get along” or risk losing critical funding and attention. Once this position is assumed, the discourse around trafficking in MMIW develops and spirals and the impacted Indigenous organizations’ stances slowly shift in earnest to focusing on anti-trafficking and, by association, anti-sex work frameworks.

These discourses draw attention away from the colonial violence of the state, with its harmful sex work policies, and onto criminalizing sex workers and their supporters.67 They also detract from the colonial laws and policies that create socio-economic issues for Indigenous women – such as racism, poverty, mental health issues, addiction, and lack of access to resources – which leave them with few other beneficial options than sex work. Discourses of this nature fail to account for the fact that sex work can provide respite from such violating colonial conditions.68 Instead of holding the system accountable, the compassionate conservative approach shames Indigenous women for asserting their autonomy within it. This approach not only decenters the actual issues, but it also decenters the voices of Indigenous sex workers. Indeed, research that supports categorizing sex work under sex trafficking has largely omitted the perspectives of Indigenous sex workers, contributing to their silencing and marginalization, and supporting a colonial narrative.69

Alternatives to the Carceral Anti-Trafficking Approach

If protecting vulnerable racialized and Indigenous women is truly at the heart of anti-trafficking and anti-sex work laws, then outcomes that threaten their economic stability, migration status, health and safety, and community positions should not be tolerated. As stated previously, there is little research to support the basis for such laws therefore, rather than pouring money into the enforcement of trafficking laws – $25 million was designated to anti-trafficking efforts in 2012 and over $300 million has been allotted toward anti-human-trafficking between 2020 and 202570 – effort should be put into better understanding the issues. Efforts must be made to understand what it means to be a “vulnerable” Indigenous or racialized sex worker: this means hearing and respecting the voices of those who identify as such.71 This would also help inform the distinction between coerced sex work and sex work where the participants feel they have agency and would therefore help provide a better framework for identifying true trafficking issues. To do this, financial support must be provided to researchers and organizations that center the voices and lived experiences of the individuals whose social positions are the core reason for the research.

More political and social weight must be given to existing research and reports that already provide insights into what is needed to truly create a safe environment within sex work and to provide alternatives that are desirable to those trying to exit it. The socio-political context of women in sex work must be considered in discussions about exiting sex work as well, and it must be acknowledged that “exploitation” comes in many forms and is present in many occupations, and sex work for some might actually be a means to avoid workplace exploitation, including bad hours, low wages and dangerous conditions. Of the options available to low income, racialized and Indigenous women, it must be accepted that sex work is not always the most harmful. An approach of this nature would necessitate a reckoning with historical and colonial harms of the carceral system and would require focus on the demarginalization of Indigenous and racialized immigrant and migrant women.

Conclusion

Canada’s sex work and sex trafficking laws perpetuate a disturbing continuation of historical colonial harms against Indigenous and racialized immigrant and migrant sex workers, propelled by moral panic and a compassionate conservative approach. These laws are framed as being in place to protect vulnerable Indigenous and racialized women from exploitation. However, an analysis of their actual impacts shows that these laws work to further marginalize those demographics they set out to safeguard. The adoption of the end demand based ‘Nordic Model’ that imposes punitive measures but shows no research to support its claims of harm reduction is one indication that the prima facie goals of these laws are not in line with their actual objectives. The conflation of sex work with sex trafficking results in reduced health and safety for immigrant and migrant sex workers and places unique restrictions on them, which put them at greater risk of criminalization, detention and imprisonment. The entwinement of these laws also presents a constant hovering threat of deportation, and this state-based colonial control works to strengthen white nationalism, and weed out those it deems to exist outside of Euro-centric ideals of purity and morality.

By preserving the whiteness of the dominant culture, these laws further alienate Indigenous women from the land and from politics. Continuing early colonial traditions, the laws simultaneously victimize and shame Indigenous women, silencing their voices and forcing colonial narratives on Indigenous women and organizations. In order for the laws to meet their stated goals of protecting vulnerable demographics, the centering of the voices of racialized immigrant and migrant women and Indigenous sex workers is needed. Attention must be paid to the socio-political landscape that sex workers find themselves in, and the state must reconcile its history of oppression and continued colonial stances with regards to sex work, race and immigration.

Endnotes

1 Throughout this paper, I will use the term “sex work” to mean situations in which sex is exchanged, by consenting adults, for money or goods. I use this term because it respects the validity of sex work as work and appreciates the agency some sex workers feel they have in their work. I distinguish between sex work and sex trafficking on this basis, while acknowledging that sex work can result in exploitative situations but is not in itself exploitative while sex-trafficking is inherently exploitative. Judy Fudge et al, “Caught in the Carceral Web: Anti-Trafficking Laws and Policies and their Impact on Migrant Sex Workers” (2021) at 6, online [Fudge].
2 I will predominately focus on Indigenous, migrant, and immigrant women sex workers in this paper, including transgender women and others who identify as women. I acknowledge that men in sex work are also impacted by sex work laws and organizations geared toward ending sex trafficking. I will use the terms migrant and immigrant throughout. The distinction is noted by Jamie Chai Yun Liew as follows: “‘Migrant’ sex workers are those who may not have immigration status in Canada or have temporary or precarious status in Canada. ‘Immigrant’ sex workers are those who may be new citizens or those who have permanent residence status in Canada but are also ‘ethnic.’” Jamie Chai Yun Liew, “The Invisible Women: Migrant and Immigrant Sex Workers and Law Reform in Canada” (2020) 14: 21 Studies in Soc Justice 90 at 92, DOI [Liew].
3 Former United States president, George W. Bush, famously made compassionate conservativism part of his governance mandate, stating: “It is compassionate to actively help our fellow citizens in need. It is conservative to insist on responsibility and results.” The White House Office of the Press Secretary, Press Release “Fact Sheet: Compassionate Conservatism” (30 April 2002), online (White House Archives).
4 Wendy Chapkis defines compassionate conservatism similarly as “a willingness to provide assistance and protection for a few by positioning them as exceptions, proving the need for punitive measure used against the many. The law thus symbolically and legally separates trafficking victims from economic migrants who are understood to have unfairly benefited from facilitated migration.” Wendy Chapkis, “Trafficking, Migration, and the Law: Protecting Innocents, Punishing Immigrants” (2003) 17:6 Gender & Soc 923 at 930, online [Chapkis].
5 Elene Lam, “How Laws Regulate Migrant Sex Workers in Canada: To Protect or to Harm?” (2023) 82 Can Rev Soc Pol’y (January) 22 at 27, online [Lam].
6 Mariana Valverde, “Racial Purity, Sexual Purity and Immigration Policy” in Barrington Walker, ed, “The History of Immigration and Racism in Canada: Essential Readings” (Toronto: Canadian Scholars Press, 2008), 175 at 175 [Valverde].
7 Ibid.
8 Ibid.
9 Ibid.
10 Julie Kaye, “Responding to human trafficking: dispossession, colonial violence, and resistance among Indigenous and racialized women”, (Toronto: University of Toronto Press, 2017) at 49 [Kaye].
11 Sarah Hunt, “Representing Colonial Violence: Trafficking, Sex Work, and the Violence of Law” (2015) 37:2 Atlantis Critical Studies in Gender, Culture & Soc Justice 25 at 27, online [Hunt].
12 Kaye, supra note 10 at 47.
13 Ibid at 30.
14 Ibid at 32.
15 Ibid at 35.
16 Valverde, supra note 6 at 176.
17 Ibid at 177.
18 Kaye, supra note 10 at 46.
19 Ibid at 44.
20 Vincent Wong, “The Asian Labour Question – Railroad Labour and the Consolidation of White Nationalism” PhD Work in Progress, citing Madeline A Kalbach, “Asian Immigration to Western Canada” in Lorry W Felske and Beverly Rasporich, eds, “Challenging Frontiers: The Canadian West” (Calgary: University of Calgary Press, 2004) at 254-256 [Wong].
21 Kaye, supra note 10 at 44.
22 Ibid at 46.
23 Iyko Day, “Alien Capital: Asian Racialization and Logic of Settler Colonial Capitalism”, (Duke University Press, 2016) at 25. Day explains two logics, the logics of exclusion and elimination, as being central to settler-colonial efforts to create a racially homogenized society. The logic of exclusion focuses on the colonial need to prevent immigration of racialized peoples, and the logic of elimination focuses on eliminating Indigenous people via tactics of genocide and biological absorption (encouraging interracial relationships that will produce mixed race children until there is no trace of Indigeneity left).
24 Protection of Communities and Exploited Persons Act, SC 2014, c 25, online [PCEPA].
25 Criminal Code, RSC 1985, c C-46, online [Code].
26 PCEPA represented the enactment of Code sections 286.2, 286.3, 286.4, while Bedford invalidated sections 210, 212(1)(j) and 213(i)(c); Bedford v Attorney General of Canada, 2013 SCC 72, online [Bedford].
27 A technical paper was released to clarify the purposes of PCEPA’s amendments to the Code and to provide (limited) social context for them. Canada, Department of Justice Canada, Bill C-36, “An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts”, Technical Paper (Ministry of Justice and Attorney General, 2014) at 6, online [Technical Paper].
28 Specifically, the Technical Paper states that the provisions under PCEPA were developed with consideration to the fact that Aboriginal women and girls are disproportionately represented in sex work. Ibid at 3.
29 Ibid at 4 and 12, for example.
30 Alison Clancey, Andi Wiseman, “Harms of Anti-Trafficking: Transforming Anti-Trafficking Sentiment into Effective Action”, (Vancouver: SWAN Vancouver Society, 2020) at 10, online [SWAN].
31 Ibid.
32 Technical Paper, supra note 27 at 4.
33 Ibid. Note that “commercial establishments” are not well defined in either the Code provisions or the Technical Paper, leaving open the potential for punitive action against those working in indoor locations.
34 Code, supra note 25 at ss. 286.3, 279.01.
35 Ibid at ss. 286.2(3), 279.02.
36 Technical Paper, supra note 27 at 12.
37 Ibid at 9.
38 Ibid at 3, 4.
39 Ibid at 12.
40 Canadian Alliance for Sex Work Law Reform v Attorney General, 2023 ONSC 5197 at paras 238, 251, 275.
41 Kaye, supra note 10 at 70.
42 Bedford, supra note 26 at paras 6, 131, 159.
43 This linkage between laws pre-Bedford and laws enacted after PCEPA is also expressed by Julie Kaye. Kaye, supra note 10 at 70.
44 Fudge, supra note 1 at 17. Crimmigration is explained in this report as “the increasing integration of criminal and immigration law, law enforcement and sanctions.”
45 Ibid.
46 Kaye, supra note 10 at 162.
47 “Immigration and Refugee Protections Regulations”, SOR/2002-227 s 183(1)(b.1), online [IRPR].
48 Kaye, supra note 10 at 160. Since 2012, work permits from those who wish to come to Canada and work in strip clubs, massage parlours, escort services and other similar businesses have not been processed.
49 Sandra Ka Hon Chu et al, “The Perils of Protections: The Sex Workers’ Experience of Law Enforcement in Ontario” (Canadian HIV/AIDS Legal Network) at 14 and 15, online (pdf) [Chu]. According to Amanda Jabbour of Sault Ste. Marie Sex Workers’ Rights, current police harassment of sex workers who work on the streets of Sault Ste. Marie is motivated by a desire to remove sex workers from public space: ‘Even the chief of police has said that he wants to ‘clean up the downtown core.’ That’s their way of cleaning it up.’ The belief that sex workers are perceived as undesirable community members is also shared by indoor workers such as O, who explained, ‘Wanting to keep things low key is really a direct result of feeling as though people do not want me in their community and the average person wouldn’t see me as a professional operating a business.’
50 Kaye, supra note 10 at 162.
51 Fudge, supra note 1 at 20.
52 Ibid at 21.
53 Ibid at 22; Elene Lam, “Behind the Rescue: How Anti-Trafficking Investigations and Policies Harm Migrant Sex Workers” (Toronto: Butterfly Print, 2018) at 3, online [Behind the Rescue].
54 Chu, supra note 49 at 15.
55 Fudge, supra note 1 at 24-26.
56 Tara Santini & Elene Lam, “Municipal Law and Migrant Sex Workers’ Rights” (October 2017) at 21, 24, online (pdf): Butterfly.
57 Chu, supra note 49 at 16.
58 Ibid at 16.
60 Ibid at 4.
61 Ibid at 9.
62 Kaye, supra note 10 at 50.
63 Ibid.
64 Fraser Needham, “$50M lawsuit alleges practice of birth alerts still continues in Ontario”, APTN News (24 May 2022), online.
65 Kaye, supra note 10 at 50.
66 Ibid at 139.
67 Hunt, supra note 11 at 32.
68 Kaye, supra note 10 at 21.
69 Hunt, supra note 11 at 34.
70 Fudge, supra note 1 at 12; “Ontario’s anti-human trafficking strategy 2020-2025” (6 March 2020), online (webpage).
71 Cecilia Benoit et al, “Centering Sex Workers’ Voices in Law and Social Policy” (2021) 18 Sex Res Soc Policy 879 at 905, online [Benoit et al]. Participants (sex workers) in this Benoit et al. study have recommended the involvement of sex workers in policy decisions, through collaborative governance in which sex workers have a voice in the creation of laws and policies around their work.