The Good Governance of Empirical Evidence About Prostitution, Sex Work, and Sex Trafficking in Constitutional Litigation.

• Author: Haak, Debra M.
• Position: Canada

Introduction I. Framing the Literature Review A. Canada's Policy Approach to Prostitution B. The Concern Over Issue Bias II. Methodology III. Scope of Empirical Evidence A. Theoretical Framework: Sex Work is Work B. Research Questions: Harm Reduction C Research Participants: Active Sex Workers D. Geographic Limitations IV. Implications and Recommendations A. Acknowledging Issue Bias in Peer-Reviewed Empirical Literature B. The Use of Empirical Research in the First Constitutional Challenges to the PCEPA C Good Governance of Evidence About Prostitution and Sex Work Conclusion Appendices "A core task of activists and academics has been amassing evidence that criminalization of the seller, buyer, and associated activities impacts negatively on the safety and well-being of sex workers." (1) Katie Cruz, 2019 Introduction

Canada's policy approach to prostitution changed dramatically in 2014 in response to the decision of the Supreme Court of Canada in Canada (AG) v Bedford (Bedford) declaring most of Canada's criminal laws then applicable to adult prostitution unconstitutional. (2) The Protection of Communities and Exploited Persons Act (PCEPA) came into force on December 6, 2014. (3) Canada's new prostitution policy aims to reduce the incidence of prostitution to the greatest extent possible based on claims that prostitution cannot be made safe, and that prostitution is inconsistent with a gender-equal society. (4) Two Ontario courts have already considered the constitutionality of some of the new criminal prostitution laws. (5) In 2018, the Ontario Superior Court of Justice upheld the constitutionality of three new criminal offences in R v Boodhoo {Boodhoo I), citing the objectives of the new laws as pressing and substantial. (6) In 2020, the Ontario Court of Justice found those same offences unconstitutional in R v Anwar on the basis that they violated sex workers' right to security of the person in a way that could not be demonstrably justified. (7) A committee of the House of Commons was supposed to undertake a comprehensive review of the provisions and operation of the PCEPA within five years of its coming into force. (8) To date, the House of Commons has yet to designate and establish a committee for that review.

With Canada's new prostitution policy, Parliament made a political choice to focus on the activity of prostitution rather than on the concerns of sex workers in its response to the Supreme Court of Canada's decision in Bedford. Prostitution policy is made in a contested public policy space where stakeholders pursue different goals and objectives based on divergent theoretical, ideological, and normative commitments. (9) For some time, the debate over prostitution policy in Canada and internationally has appeared to centre on whether the commercial exchange of sex should be understood as inherently exploitive or as a form of labour. (10) While one side in the contemporary policy debate posits the activity of prostitution as a structural example of sexual exploitation, gender inequality, and violence against women, the other posits sex work as a legitimate form of labour reflecting the individual exercise of choice and agency and a site to expand the boundaries of sexuality and gender. (11) What is often overlooked in evaluating policy responses to prostitution, including criminal prostitution laws, is how these normative claims about the nature of the commercial exchange of sex tend to prioritize different concerns and different populations. (12) Canada's current criminal laws apply to "sexual services for consideration", a term capturing the activity of prostitution as it has been defined by Canadian courts. (13) As I have argued elsewhere, the term "sex work" is not synonymous with prostitution, and conceptual clarity is important for legal thinking, in particular when adjudicating constitutional rights claims. (14) The term sex work almost always refers to prostitution (and other sex industry activities that would not constitute sexual services for consideration as that term has been interpreted by Canadian courts (15) ) when engaged in by adults who have not been subject to third party coercion or trafficking. (16) Thus, the term "sex workers" usually refers to only a subset of those who engage in the activity of prostitution, as well as to individuals engaging in activities that would not constitute prostitution as legally defined in Canada. (17) Because Parliament chose to focus its policy approach on the activity of prostitution rather than on the concerns of sex workers, close attention to the conceptual distinctions between prostitution and sex work is therefore critical to understanding the concerns and populations considered in the policy-making process, and to adjudicating constitutional rights claims.

Close attention to the distinction between prostitution and sex work is also critical to evaluating evidence about sexual services for consideration in Canada. Social science evidence increasingly plays a significant role in constitutional litigation (18) and can significantly impact constitutional cases, in particular in areas of shifting social norms. (19) In considering the constitutionality of Canada's prior criminal prostitution laws, the application judge in Bedford was presented with over 25,000 pages of evidence in eighty-eight volumes amassed over two and a half years. (20) That evidence included expert evidence (21) from a range of social science disciplines including anthropology, (22) criminology, (23) psychology, (24) sociology, (25) history, (26) medical ethics, (27) political science, (28) and forensic psychology. (29) Evidence from four expert witnesses was also before the Ontario Court of Justice in Anwar, (30) although no expert evidence was mentioned by the Ontario Superior Court of Justice in its decision in Boodhoo I. (31) In both Boodhoo I and Anwar, the courts had before them a Parliamentary Record including a Technical Paper prepared by the Department of Justice referencing all the empirical evidence available up to 2014 that was considered by Parliament in enacting the PCEPA. (32)

In areas of contested public policy it matters to have rigorous, systematic, and technically valid pieces of evidence, as well as evidence that is representative of and accountable to all impacted populations. (33) While evidence-based policy-making is premised on the idea that properly developed public policy should be based on the best available evidence, (34) policy studies scholars caution that focussing only on what has been or can be empirically measured can obscure the political nature of policy-making. (35) Scholars and community activists who promote evidence-based prostitution policy often argue that the best available evidence supports the removal of criminal sanctions over adult sex work. (36) However, public policy decisions invariably involve choices among and between competing social values, and competition between interested groups. (37)

This article examines the body of peer-reviewed empirical evidence about prostitution, sex work, and sex trafficking in Canada since the PCEPA was enacted to consider the scope and comprehensiveness of that evidence and whether it is representative of and accountable to all of the populations and concerns in the contemplation of Parliament in making the political choice to enact the PCEPA. To do this, I looked to sociologists and other researchers who study and measure prostitution, sex work, and sex trafficking in Canada through a review of recent peer-reviewed empirical literature. In the first part, I describe Canada's current policy approach to prostitution and set out some foundational concepts relevant to this literature review. In the second part, I set out the methodology I used to identify peer-reviewed empirical literature. Next, I discuss the peer-reviewed empirical literature and what scholarly researchers have and have not studied. I conclude that what is known about prostitution, sex work, and sex trafficking in Canada remains incomplete and that the body of peer-reviewed empirical knowledge demonstrates what policy studies scholars have termed "issue bias". It does not meaningfully include some of the populations in the contemplation of Parliament in choosing the current policy approach and enacting the current criminal commodification offences, and it focusses principally on the sexual health of individuals continuing to engage in sex work. In the context of constitutional litigation, this body of evidence has the potential to obscure the political questions that underpinned Parliament's policy choice and, importantly, to shift political decision-making in this area of contested public policy from the government to the courts under the guise of objective fact-finding. (38) Additionally, the peer-reviewed empirical literature identified in this review is not geographically comprehensive, relying largely on data from one urban centre, where enforcement of Canada's current criminal commodification offences is not a policing priority. (39) I explore reasons for this issue bias and discuss some possible implications. I conclude with some observations about future empirical research to fill the gaps in knowledge and about how to ensure the legitimacy of the court processes in which this evidence is used.

1. Framing the Literature Review

   Policy studies scholars express concern over relying solely on social scientific and scientific evidence in policy-making. Justin Parkhurst notes that "policymaking typically involves trade-offs between multiple competing social values, with only a very small proportion of policy decisions simply concerned with technical evidence". (40) Canada's current prostitution policy reflects a political choice founded on claims that prostitution is inconsistent with equality for women and girls and that prostitution cannot be made safe. (41) Opposition to this policy approach principally rests...