The Ontario Superior Court has dismissed a Charter challenge brought by an alliance of groups advocating for sex workers’ rights and ruled that Canada’s criminal laws on sex work are constitutional.
Judge Robert Goldstein’s decision says the Exploited People and Communities Protection Act, introduced by the previous Conservative government, balances banning “the most exploitative aspects of the sex trade” while protecting sex workers from legal prosecution.
Goldstein concluded that the laws are constitutional and do not prevent sex workers from taking safety measures, engaging the services of non-exploitative third parties, or seeking police assistance without fear of being charged for selling or advertising sexual services.
The Canadian Alliance for Sex Work Legal Reform had argued in court that the laws foster stigma, invite targeted violence and prevent sex workers from obtaining meaningful consent before engaging with clients, violating workers’ rights. of the industry established in the Charter.
The Exploited Persons and Communities Protection Act was passed in 2014, about a year after the Supreme Court of Canada struck down previous anti-prostitution laws after lawyers argued that existing provisions were disproportionate, overly broad and placed sex workers in at risk of damage.
Although prostitution was legal under previous laws, almost all related activities (such as running a brothel, pimping, and communicating in a public place for the purposes of prostitution) were illegal.
Prostitution-related offenses introduced during former Prime Minister Stephen Harper’s government came closer to criminalizing prostitution itself by making it illegal to pay for sexual services and for businesses to profit from it, as well as making it a crime to communicate for buy sexual services. .
The federal government maintained that those new statutes do not prevent people who sell sex from taking safety measures and says they are intended to reduce both the buying and selling of sexual services.
The Canadian Alliance for Sex Work Law Reform argued last October that the new laws are more restrictive than the ones they replaced and force sex workers, and the people who work with them, to operate in the context of criminalization.
The alliance has said there should be no criminal laws specific to sex work and has dozens of recommendations to create a more regulated industry.
‘I am deeply disappointed,’ says defender
The CASWLR group is “deeply disappointed” by the decision, said its national coordinator Jen Clamen, who called the ruling “extremely dismissive of the realities of sex workers and the concerns that were raised.”
“It’s also quite dismissive of the evidence and there’s a lot of incorrect information written into the decision that eventually, over time, with our deeper analysis, we’ll be able to deconstruct,” Clamen told CBC Toronto.
“One of the things that’s probably most egregious… is the idea that sex workers don’t understand the laws and sex workers don’t know the laws.”
In addition to being “condescending,” Clamen says the ruling “dismisses evidence that sex workers, particularly immigrant sex workers and Black sex workers, presented evidence to demonstrate how sex workers are being arrested under laws of third parties”.
The Reform Alliance is likely to appeal the ruling
Clamen says, “This fight is not over.”
CASWLR will likely appeal the decision, he said.
“Sex workers have been fighting for their rights for over 50 or 60 years in this country alone and they are extremely resilient people who are not easily stopped in this fight to have their rights recognized.”
Ellie Ade Kur, executive director of Maggie’s Toronto Sex Workers Action Project, was a fact witness in the case.
She said the ruling “completely dismisses many of the concerns that sex workers have raised around the reality of what it means to criminalize sex work” and how it affects their work and lives.
“One of the biggest things we’ve been talking a lot about is how many of the laws criminalizing sex work are largely framed as intended to ‘protect’ many of us, when in reality many sex workers are subject to prosecution under criminal laws surrounding sex work,” he told CBC Toronto.
“Many of these things prevent us from working in groups, implementing security mechanisms, being able to involve third parties who can support with controls around personal protection and security and shape the relationship between our communities and the police more broadly.”
Goldstein wrote in his decision that decriminalization and regulation of sex work may be better policy options, but that is for Parliament, not the court, to decide.