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IN CONTEXT: Newmarket continues to take heat for massage bylaw

A nationally published assistant law professor who says the bylaw is racist and possibly unconstitutional is one of several voices in recent weeks criticizing the town
20220923-Massage parlour protest-JQ
Protestors opposed to Newmarket's massage parlour bylaw gathered outside the town office Aug. 28.

In Context is an occasional NewmarketToday news feature providing background and further explanation and analysis on ongoing issues impacting residents. 

More than one year after the Town of Newmarket passed a massage parlour bylaw, the opposition is ramping up its public campaign to label the move as racist and have it rescinded.

Protestors gathered outside the municipal office Sunday, Aug. 28, plastering the front doors with notes that demanded the end of the bylaw. Put in place to regulate alternative massage businesses — known as personal wellness establishments in the bylaw— council sought to address concerns about illicit activity, namely prostitution, allegedly happening at some parlours in town by using new regulations. 

But Asian advocacy groups have said the bylaw effectively targets Asian parlours, and believe that is bearing out in enforcement, with seven local Asian-owned parlours unable to get licences, according to advocacy group Butterfly.

This month, the Canadian Civil Liberties Association and the Women’s Legal Education and Action Fund (LEAF) posted on their websites a letter to council, alleging the bylaw could violate charter rights.

“I don’t think the town should assume we’re going to let this go,” LEAF executive director and general counsel Pam Hrick told NewmarketToday. “We are really concerned with what is happening in Newmarket, and we are going to be looking at ways we can continue to work with organizations locally … to ensure the rights of Asian massage parlour workers are respected.” 

The bylaw requires alternative massage businesses — those without registered massage therapists — to prove workers have accredited post-secondary or alternative training to get licensed. Councillors spoke of a desire to use this bylaw to address alleged illicit activity at the businesses.

But advocates have argued language and cost are a barrier for some Asian workers to get accredited or formal education, with training often occurring on the job.

Toronto-based Butterfly, an Asian and migrant sex worker support group, has spearheaded the opposition. But it has garnered dozens of allied organizations to support its cause and sign a petition, including the Women's Support Network of York Region.

Also this month, University of Windsor assistant professor of law Vincent Wong added his voice to the opposition in writing a widely published op-ed for The Conversation, which appeared on and The National Post. It said the bylaw has created a “crackdown” with a disproportionate impact on Asian businesses and workers, and is part of a “long history of racist bylaws and licensing regimes.” 

“These governments are saying, ‘Hey, of course, we oppose racism’ on one hand, but on the other hand, continue to operate it through their laws, through policy changes they can control,” Wong told NewmarketToday. “The past is not in the past, and the law still has a very central role in perpetuating anti-Asian racism.” 

But the municipality is still standing behind its bylaw. 

Newmarket Mayor John Taylor said the pushback has been consistent since the bylaw was introduced, but it is primarily occurring outside of Newmarket.

“There is essentially zero pushback within the community,” he said, adding that he is surprised by the opposition “because there is federal law which is clear that running a business that sells sex is illegal, and our bylaws are simply supporting that legislation.” 

Town manager of regulatory services Flynn Scott said staff is still working with business owners who engage with the town around licensing. He said they have even provided a conditional business licence in some cases for those working toward licensing under the bylaw. 

“We intend to work with them," he said, but added they would "continue to enforce where there is evidence of sexual service." 

The town has previously said it has found three such locations where sexual services are sold, for which there will be no licensing and charges will be laid.

But Wong argues the town’s aims are effectively overstepping their jurisdiction. 

“We have case law that’s pretty clear that municipal governments cannot simply pass laws that achieve a regulation that criminal law is set to achieve, or stiffen criminal law penalties,” he said, suggesting that could run afoul of the division of powers in the Constitution. “If the purpose of it is to stiffen, or let’s say supplement or add another lawyer of punishment to the criminal law punishment, that is actually unconstitutional.” 

No legal challenge against the law has emerged so far. Wong said several of the businesses retained legal representation as they navigate the licensing system.

Taylor said the bylaw was legally vetted, and they will deal with any challenges if they come. He further said the bylaw is not primarily to enforce federal law, but it is synchronous with it.

“We have many, many bylaws that try to limit the impact of unacceptable community behaviours,” Taylor said. 

Councillor Grace Simon has been an ardent advocate of the bylaw, which did pass unanimously. She said it is trying to stop illegitimate businesses that are not concerned for their workers, and the opposition is wrongheaded.

“They’re not looking at the purpose of the bylaw, supporting legitimate businesses. They're trying to make it a different issue. It’s not a racial issue. This is a local issue,” Simon said. “This is about illegal activities. This is about manipulation and control of women and mistreatment … this is a human rights issue.”

Simon was a target in the Aug. 28 demonstration, with protesters carrying signs with a photo of her making dumplings, accusing her of "white savourism."

“I have friends of all different cultures,” Simon said, adding the photo was on her social media from when she spent time learning from friends about their cultures. “This is what community is ... I will continue to build a bridge for cultural differences.”

Human trafficking has previously been raised by council members as a point of concern with these locations, as well. But York Region staff and police put out a report earlier this year that said the police’s approach is to protect victims rather than to eradicate establishments. The report said that attacking establishments can drive sex work underground and further marginalize their workers. It also said trafficking is more prevalent in places like hotels, condos and short-term rentals, rather than parlours. 

Asked about the impact the pushback could have on Newmarket’s reputation for inclusion and anti-racism, Taylor said he is passionate and committed to inclusivity and diversity. He cited initiatives such as supporting the York Region Pride parade and the permanent Indigenous land acknowledgment at the town hall.

“Nothing anyone says can erase my personal, internal commitment to diversity and equity,” he said. 

The council resolution is for the bylaw to come into review a year after enforcement begins, which would be in 2023. 

Taylor reiterated that this is not an issue receiving much attention from within the community, and that changing prostitution laws is a matter for other levels of government.

“We’ll continue to do just the kind of calm, thoughtful work we do at the Town of Newmarket and try to fight this sensationalism.”

Canadian Civil Liberties Association director of the fundamental freedom program Cara Zwibel said she thinks there are vulnerabilities to the bylaw legally.

She said if the effort is to help trafficked women, a licensing bylaw is not going to address that. She said it could further marginalize a group of women already dealing with challenging circumstances. 

“I understand that for some people, they don’t like that these places exist, they don’t want them in their community,” she said. “That’s not a good enough reason to put these women in a very precarious, a potentially dangerous situation. So I think that municipal governments need to be very careful about how they approach these issues.”