Ontario’s Supreme Court ruled Monday that Canada’s criminal sex work laws are constitutional, rejecting a Charter of Rights and Freedoms challenge brought by groups defending the rights of sex workers.
In a 142-page decision, Justice Robert Goldstein asserts that the Protecting Communities and Victims of Exploitation Act, enacted in 2014 by Stephen Harper’s Conservative government, strikes a balance between banning “most exploiters in the sex trade” and to protect employees from criminal prosecution.
The judge said he believed the law, a response from Parliament to an “urgent and genuine concern”, was a “carefully crafted legislative project”. According to him, the crimes contained therein should not violate the rights of sex workers. Above all, they allow them to take security measures.
Judge Goldstein believes these laws are constitutional and do not prevent sex workers from taking safety precautions, using the services of third parties who do not exploit them, or seeking police assistance without fear of being accused to have sold or advertised sexual services.
The Canadian Alliance for Sex Work Law Reform argued in court last fall that laws passed under former Prime Minister Stephen Harper’s government furthered the stigmatization of sex workers, encouraged targeted violence and prevented them from obtaining meaningful consent before engaging with clients Contact came into contact – and their rights were violated.
Founded in 2012, the alliance represents sex worker organizations across Canada, including Quebec organizations Rézo, Projet LUNE and Stella.
The new sex work laws were passed in 2014, about a year after the Supreme Court struck down Canada’s previous anti-prostitution laws. Although prostitution was legal under previous laws, almost all related activities—such as operating a brothel, acting as a third-party manager, and communicating in a public place for the purpose of prostitution—were illegal.
The new law bans payment for sexual services and companies from profiting from them, and makes soliciting the purchase of sexual services a criminal offense, even if those interactions take place online. However, sex workers themselves cannot be prosecuted for selling or advertising their services, nor can non-exploitative third parties who materially benefit from them.
The Sex Workers Alliance argued last October that the new laws are more restrictive than those they replace and force sex workers and the people who work with them to operate in a context of criminalization. Lawyers representing transgender, Indigenous and Black sex workers have also argued that the new laws disproportionately harm marginalized groups.
The alliance said there should be no specific criminal laws for sex work and made dozens of recommendations aimed at creating a more regulated industry.
The Attorney General of Canada has argued that legalization would lead to an increase in human trafficking.
Political and non-legal decisions
Judge Goldstein wrote in his ruling that decriminalizing and regulating sex work may be a better policy decision, but the decision is for Parliament, not the court.
“My duty is simply to determine whether the legislative system is consistent with the Charter,” he said, also pointing out that Canada’s approach mirrors that of other free and democratic societies, which he described as “including Sweden, Norway, France and Israel”.
One of the main conclusions is that the country’s laws, when properly interpreted, do not prevent sex workers from working with each other or with third parties who do not exploit them, including security guards and receptionists, nor do they prevent them from asking the police for help without fear of that they are billed for their work.
Judge Goldstein wrote that much of the evidence presented in the case was influenced by the limitations of available research on sex work in Canada, the bias of witnesses on both sides, and disagreements about the nature of sex work. He further pointed out that third parties can be exploiters or human traffickers, but there are also legitimate services such as security or reservation services.
Mr. Goldstein nonetheless acknowledged those who work with sex workers through community organizations, saying they support some of the most disadvantaged populations in the country and deserve “recognition and respect.”
An appeal was considered
Jenn Clamen, coordinator of the Sex Workers Alliance, said sex workers across Canada were “extremely devastated” by the decision and found it “not only offensive, but ignorant.”
“We find this extremely reductive, and not just in terms of the systemic harm described by sex workers […]but also those described in the detailed file we submitted,” both through research and statements from sex workers, Ms. Clamen said.
The coalition particularly criticized Judge Goldstein’s conclusion that there was no “constitutional right to sex work” – which Ms. Clamen said was not spelled out in the law – and her claims that sex workers misunderstood the law. There are connections between sex work, violence or human trafficking, Clamen said.
“It is extremely condescending to suggest that people who experience the application and consequences of these laws on a daily basis do not understand them,” she said.
The alliance plans to appeal the decision, Ms. Clamen said, while continuing to pressure the government to create a health and safety framework for sex work.
A government spokesman said Attorney General Arif Virani was “carefully reviewing the decision.”
“Our government will always ensure that our criminal laws effectively achieve their objectives, ensure the safety of all Canadians and are consistent with the Charter,” spokeswoman Chantalle Aubertin wrote in a statement.
Last year, a House of Commons justice committee examined the new 2014 sex work laws and concluded that the laws made sex work more dangerous. The committee called on the government to strengthen the criminal code by providing victims and law enforcement with additional resources to combat exploitation.
David Lametti, the attorney general at the time, acknowledged that these laws were “sowing discord” and that more needed to be done to address the risks and harms faced by sex workers.