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Ontario court dismisses sex workers' Charter challenge, rules laws constitutional

TORONTO — Ontario's Superior Court dismissed a Charter challenge launched by groups advocating for the rights of sex workers, ruling Monday that Canada's criminal laws on sex work are constitutional.
Jenn Clamen, national coordinator for the Canadian Alliance for Sex Work Law Reform, speaks during a rally outside the Ontario Superior Court after the launch of their constitutional challenge to Canada's sex work laws, on Monday, October 3, 2022. THE CANADIAN PRESS/Tijana Martin

TORONTO — Ontario's Superior Court dismissed a Charter challenge launched by groups advocating for the rights of sex workers, ruling Monday that Canada's criminal laws on sex work are constitutional. 

In a 142-page decision, Justice Robert Goldstein wrote that the Protection of Communities and Exploited Persons Act – brought in by the former Conservative federal government – balances the prohibition of "the most exploitative aspects of the sex trade" with protecting sex workers from legal prosecution.

"I find that Parliament's response to a pressing and substantial concern is a carefully crafted legislative scheme ... The offences minimally impair the Charter rights of sex workers," Goldstein wrote. "The offences also permit sex workers to take safety measures."

Goldstein found that sections of the Criminal Code outlawing communications or the stopping of traffic for the purpose of selling sexual services were constitutionally compliant and do not prevent sex workers from taking safety measures, engaging the services of non-exploitative third parties or seeking police assistance.

The Canadian Alliance for Sex Work Law Reform had argued in court last fall that the laws ushered in under former prime minister Stephen Harper fostered stigma, invited targeted violence and prevented sex workers from obtaining meaningful consent before engaging with clients – violating the industry workers' Charter rights. 

The alliance, which formed in 2012, represents 25 sex-worker organizations across Canada.

The new sex-work laws were passed in 2014, about a year after the Supreme Court of Canada struck down previous anti-prostitution laws. Even though prostitution was legal under previous laws, nearly all related activities – such as running a brothel, acting as a third-party manager and communicating in a public place for the purposes of prostitution – were against the law.

The new act made it against the law to pay for sexual services and for businesses to profit from it, and made communicating to buy sexual services a criminal offence. Sex workers themselves, however, are immune from prosecution for selling or advertising their services, as are non-exploitative third parties who materially benefit.

The sex workers' alliance argued last October that the new laws are more restrictive than what they replaced and force sex workers, and people who work with them, to operate in the context of criminalization. Lawyers representing transgender, Indigenous and Black sex workers also argued the new laws disproportionately harm marginalized groups.

The alliance has said there shouldn't be any criminal laws specific to sex work and advocates for a more regulated industry.

The federal government argued that legalization would lead to an in increase human trafficking, and the sex-work laws' main objective is to "target and end the demand for sexual services."

Goldstein wrote in his decision that decriminalization and regulation of sex work may be better policy choices, but that is up to Parliament, not the court, to decide. 

"My duty is solely to determine whether the legislative scheme is Charter-compliant," he said, also noting Canada's approach mirrors those of what he called other free and democratic societies – Sweden, Norway, France and Israel included.

Among his key findings were that, when properly interpreted, the country's laws do not prevent sex workers from working with each other or third parties who do not exploit them, such as security guards, or from seeking police assistance without fear of being charged for their work.  

Goldstein wrote that much of the evidence provided in the case was coloured by limitations to available research on sex work in Canada, biases from witnesses on both sides as well as disagreements about the nature of the industry, like the number or percentage of those who enter or operate in the industry by choice rather than coercion or exploitative means such as human trafficking. 

He further found that third parties can be exploiters or traffickers, as well as legitimate services such as security or booking services.

"Where a customer purchases sex, there is a significant possibility that the sex worker has been trafficked, manipulated, lured, forced and/or coerced into providing sexual services," Goldstein wrote.

"Even where a sex worker has entered the sex trade by choice, there is a significant possibility that she has become subject to the control of an exploiter or a trafficker."

Jenn Clamen, a co-ordinator with the sex workers' alliance, said sex workers across Canada are "extremely devastated" by the ruling, finding it "not just insulting but also ignorant."

"We find it extremely dismissive towards not just the systemic harms that sex workers outlined ... but also that were outlined in the extensive record that we submitted," through both research and testimony from sex workers, Clamen said.

The alliance took particular issue with Goldstein's finding that there's no "constitutional 'right' to engage in sex work" – which Clamen said they never legally argued – and his characterizations that sex workers misunderstand the laws, as well as conflations made between sex work and violence or human trafficking, Clamen said.

"It's extremely patronizing to suggest that people who live in the application, the harms and the consequences of those laws every day don't understand them," she said.

The alliance plans to appeal the decision, Clamen said, while continuing to press the government to create a health-and-safety framework for sex work. 

A government spokesperson said Attorney General Arif Virani was "carefully reviewing the decision."

"Our government will always work to ensure that our criminal laws effectively meet their objectives, keep all Canadians safe, and are consistent with the Charter," spokesperson Chantalle Aubertin wrote in a statement. 

A House of Commons justice committee review last year of the new 2014 laws on sex work found the laws made sex work more dangerous. The committee asked the government to strengthen the Criminal Code by making additional resources available to victims and law enforcement combating exploitation. 

Then-attorney general David Lametti acknowledged the laws were "divisive" and that more must be done to address the risks and harms sex workers face. 

This report by The Canadian Press was first published Sept. 18, 2023.

Tyler Griffin, The Canadian Press