Ruling Monday that Canada’s criminal sex work laws are constitutional, the Ontario Superior Court rejected a Charter of Rights and Freedoms challenge launched by groups defending the rights of sex workers.
In a 142-page decision, Justice Robert Goldstein asserts that the Act to Protect Communities and Victims of Exploitation, put in place in 2014 by Stephen Harper’s Conservative government, balances the ban on “the most sex trade exploiters” while protecting workers from prosecution.
The magistrate said he believed that the law, a response from Parliament to an “urgent and real concern”, was a “carefully crafted legislative project”. According to him, the offenses it contains are unlikely to infringe on the rights of sex workers. Above all, they allow them to take security measures.
Justice 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 to be accused of selling or advertising sexual services.
The Canadian Alliance for Sex Work Law Reform argued in court last fall that laws passed under the administration of former Prime Minister Stephen Harper encouraged the stigmatization of sex workers, encouraged targeted violence and prevented them from obtaining meaningful consent before engaging with clients – thereby violating their human rights.
The alliance, formed in 2012, represents sex worker organizations across Canada, including the Quebec organizations Rézo, Projet LUNE and Stella.
The new sex work laws were passed in 2014, about a year after the Supreme Court of Canada struck down 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 prohibits payment for sexual services and businesses from profiting from them, and makes solicitation to purchase sexual services a criminal offense, even if those interactions take place online. However, sex workers themselves are immune from prosecution for selling or advertising their services, as are 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 replaced 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 criminal laws specific to 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 choices
Justice Goldstein wrote in his decision that decriminalization and regulation of sex work might be better policy choices, but that is up to Parliament, not the court, to decide.
“My duty is only to determine whether the legislative regime is consistent with the Charter,” he said, also noting that Canada’s approach reflects that of what he called other free and democratic societies – including Sweden, Norway, France and Israel.
One of its main conclusions is that, when correctly interpreted, the country’s laws 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 to seek help from the police without fear of being charged for their work.
Justice Goldstein wrote that much of the evidence provided in the case was colored by the limitations of available research on sex work in Canada, the biases of witnesses on both sides as well as disagreements over the nature of sex work. industry. He further noted that third parties can be exploiters or traffickers, but there are also legitimate services such as security or reservation services.
Mr. Goldstein nevertheless recognized 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 considered
Jenn Clamen, coordinator of the Sex Workers Alliance, said sex workers across Canada were “extremely devastated” by the decision, finding it “not only insulting, but also ignorant.”
“We find this extremely reductive, not only with regard to the systemic harms described by sex workers […]but also those described in the detailed file that we submitted”, both through research and testimonies from sex workers, said Mme Clamen.
The alliance particularly took issue with Justice Goldstein’s conclusion that there is no “constitutional right to engage in sex work” – something that Ms.me Clamen – and his claims that sex workers misunderstand the laws, as well as the conflations made between sex work, violence or human trafficking, said Mme Clamen.
“It is extremely patronizing 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, Mr.me Clamen, while continuing to pressure 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 ensure that our criminal laws effectively achieve their objectives, ensure the safety of all Canadians and are consistent with the Charter,” spokesperson 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 making additional resources available to victims and law enforcement to combat exploitation.
David Lametti, then the attorney general, acknowledged that these laws “sow divisiveness” and that more must be done to address the risks and harms sex workers face.