Pivot Legal Society - Equality Lifts Everyone


Harper's Crime Bill Intensifies Discrimination Against Sex Workers


Stephen Harper has said he wants to protect people from exploitation with the recent changes to Canada’s immigration laws resulting from the omnibus crime bill. The method he adopts, however, belies a different intent. The new immigration provisions, in fact, punish so-called ”victims” and allow conditions of exploitation to continue. 
The new laws allow immigration officials to exclude sex workers from Canada on the basis that they may face exploitation in our country. These changes raise serious questions. Would Canadians tolerate a law that says that taxi drivers cannot enter Canada because of workplace safety issues? Would Canadians support a law that prohibits people of colour to obtain Canadian work permits because they may experience racism? No: we support laws, policies and programs that reduce workplace risks and combat racism. However, in the case of the proposed changes to the immigration laws, the government punishes sex workers while failing to address their potential exploitation.
The changes to the immigration laws are among many harmful amendments in Harper’s omnibus crime bill. They will have a discriminatory and negative impact on foreign workers, including sex workers, who want to come to Canada. The proposed legislation says that immigration officers must refuse authorization for a foreign national to work in Canada if, in the officers’ opinion, public policy considerations justify such a refusal. Public policy considerations will “aim to protect foreign nationals who are at risk of being subjected to humiliating or degrading treatment, including sexual exploitation.”  At first blush, this may seem a rational approach. However, after a decade of doing legal work and advocacy with sex workers in Canada, including migrant sex workers, it is clear to us that this legislation is not only misguided, but also discriminatory and harmful. 
In terms of how these rules will work, we must ask what constitutes “humiliating” and “degrading” treatment, what falls under the definition of “sexual exploitation”, and who gets to decide these matters. In particular, how will immigration officers assess whether foreign workers are at risk? Immigration officers are unlikely to ask foreign workers whether they are at risk of exploitation, because they will never say “yes” (given that this would result in their exclusion). More likely, immigration officers will rely on their own assumptions and stereotypes about the sex industry when making these determinations. This places enormous discretionary power in the hands of officers who are not necessarily equipped to make reliable findings about risk of exploitation. Furthermore, this scheme does nothing whatsoever to address the causes of exploitation experienced by some sex workers in Canada.  
We know that there is a broad spectrum of experience within the sex industry. Some women and men find sex work to be exploitive; many others feel empowered and dignified in their work. Immigration laws that allow officers to impose their own moral judgment on the experience of migrant workers will have a highly discriminatory impact on people who wish to come to Canada to work in the sex industry. Past experience demonstrates that leaving these kinds of decisions in the hands of public servants can lead to discrimination and other human rights violations. Take the case of Little Sister’s Bookstore, a Vancouver bookstore that serves gay, lesbian, bisexual and transgender communities. In the late 80s and early 90s, customs officials specifically targeted Little Sister’s imports, which included gay and lesbian literature and erotica. Back then, the law said that customs officials could refuse importation of books and printed materials deemed to be “obscene”. Heterosexual materials made it through; gay and lesbian literature did not. The Supreme Court of Canada found that the customs officials discriminated against gay and lesbian people in making those decisions.  Little Sister’s imports were wrongly delayed, confiscated, destroyed, damaged, and prohibited from import into Canada. In the meantime, this small and courageous bookstore experienced very negative economic consequences. 
We need to consider the likely unintended consequences of the unfair exclusion of an entire category of foreign workers from Canada. The reality is that women and men who are precluded from entry into Canada may feel compelled to find other, less legitimate and more dangerous ways to obtain entry. This could have legal implications and certainly increases their vulnerability as foreign workers. The proposed legislation will result in systemic discrimination and overbroad application. It will, in the end, harm sex workers, who already constitute a very vulnerable and stigmatized segment of our population.  There are many reasons why C-10 is bad public policy. The further marginalization, stigmatization and discrimination against sex workers one unconscionable item on this distressing list.