02/26/2018 10:46 EST | Updated 02/26/2018 14:57 EST

Criminalizing Sex-Work Has Not Saved Indigenous Women

I believe the human trafficking conversation is a distraction from the issue of the harms of criminalizing prostitution.

To the Honourable Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada:

In November 2015, I wrote a similar letter to you. At the time, I was in law school and I had hope that you would be open to discussing the realities and concerns of sex workers, including the harms created by criminalization of prostitution as a way to deter, denounce and eradicate human trafficking inside and across Canada's borders.

I understand that you have been meeting with concerned individuals about your predecessor's problematic bill, which is now law. This bill is commonly referred to as C-36, or by its short-title, Protection of Communities and Exploited Persons Act (PCEPA.) Further, I understand you are reviewing this law as part of your review of the criminal justice system, and as part of this review, you are meeting with former and current sex trade workers. I applaud you for your follow through on this part.

Most recently, however, on Feb. 15, 2018, the Standing Committee on Justice and Human Rights announced its launch of a national consultation on human trafficking that was supported by all political parties on the Committee. While I commend this collective effort to examine an important social and legal issue, I have grave concern over this consultation on human trafficking.

Kenya Jade
The author.

In December 2013, Canada's highest court released its formative decision on the harms that three challenged provisions created in the lives of sex workers. These provisions included the communication/solicitation provision, the bawdy-house provision and the living on the avails provision.

Then-Chief Justice McLachlin, in writing for the Supreme Court of Canada, described the harms of these challenged provisions after reviewing over 25,000 pages of evidence in 88 volumes. The evidence she reviewed included not one, but the many missing and murdered from Vancouver's Downtown East Side, who were preyed on by and targeted by Robert Pickton.

McLachlin stated that the harm caused by the challenged provisions was not quantitative but qualitative. In other words, it is not the number of potential victims or people that are protected by the laws that outweighs the harms of criminalizing prostitution; rather, it is the fact that one person's life and safety is at-risk of being harmed. I echoed and emphasized these same words when I was the only First Nations woman with lived experience in the sex trade to oppose the PCEPA. The PCEPA enacts very similar laws which the Supreme Court of Canada found to be harmful in the lives of prostitutes.

While I also credit your government for showing care and concern over Indigenous women and girls, I believe the human trafficking conversation is a distraction from the issue of the harms of criminalizing prostitution, especially in the realities facing Indigenous women and girls.

Naomi Sayers
The author, Bridget Tolley and Colleen Cardinel from Families of Sisters in Spirit after the author's testimony opposing Bill C-36.

Your government acknowledges that Indigenous women and girls are at-risk of being human trafficked. Yet, your government ignores how state apparatuses are set up to create that risk. For instance, in Tina Fontaine's reality, it was the state that trafficked her to a hotel room and did not provide her with adequate support and safety. She was reported missing and eventually found murdered.

Your government even provided financial support to increase police and state surveillance during a major sporting event in an effort to fight sex trafficking. Still, your government fails to provide adequate funding to Indigenous communities to access basic services. In fact, the Canadian Human Rights Tribunal issued a fourth non-compliance order for your government's "incremental approach to equality."

This approach, the Tribunal found, "fostered the discrimination" around the initial complaint. In the initial decision, the Tribunal found that the government, including your government, discriminated and continues to discriminate against First Nations children by failing to provide equal welfare services.

As I stated to the Standing Committee on Justice and Human Rights in July 2014, the PCEPA presumes prostitution to be human trafficking or presumes that there is no difference from human trafficking and prostitution.

Naomi Sayers
The author speaking in front of the Standing Committee on Justice and Human Rights.

The national consultation news release states that it wishes to meet with "survivors of human trafficking, from providers of assistance and support services to victims, and from other community partners." The Committee must also meet with current and former sex trade workers if all prostitution is human trafficking or all prostitution eventually leads to human trafficking. Accordingly, you must urge the Committee to not only meet with current and former sex trade workers, but you must also listen to this same group and their calls for repeal of laws that leave them at-risk for more violence.

Though I asked you to listen to people directly affected by PCEPA in the November letter, I am now hoping that you will repeal this harmful law, and instead meaningfully engage with current and former sex trade workers, including community groups who work directly with these groups. There is no more time for discussions or consultations. The Supreme Court of Canada found such laws to be harmful. And, as I stated previously, criminalizing prostitution has never protected Indigenous women and girls from violence. The PCEPA is still on the books.

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With the above being stated, I call attention to what I told you in my initial November letter that even the Supreme Court acknowledged the state's role in making a prostitute more vulnerable to violence. Then-Chief Justice wrote, "The violence of a john does not diminish the role of the state in making a prostitute more vulnerable to that violence."

And, if your government believes that Indigenous women and girls are at-risk of being human trafficked and all prostitution is human trafficking or eventually leads to human trafficking, then the harm in your government's inactions are already established by the fact that there are still Indigenous women and girls being reported missing and murdered under your government. Besides, if not one or a few more who have been reported missing and murdered under your government, then let it be the 1,200 plus missing and murdered Indigenous women and girls as more evidence that criminalizing prostitution never saved us.

Thank you/miigwetch,


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