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There and Back Again: The Fight Over Canada’s Sex Work Laws Returns to Court
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by
Stephen Chin
Photo by: Jared, Migrant Workers Alliance for Change
In 2013, the Supreme Court of Canada in the Bedford decision[1] ruled that three provisions in the Criminal Code related to sex work (keeping a common “bawdy house”, living on the avails, and communicating in a public place) violated the section 7 Charter rights to security of the person set out in the Charter of Rights and Freedoms. For the Supreme Court, the key point was that the laws did not merely set out conditions for those involved in sex work, but that they made things worse – by preventing individuals from taking steps to protect themselves and heightening the danger they faced. While acknowledging that Parliament may regulate sex work, the Supreme Court ruled that it cannot do so in a manner that violates the constitutional rights of sex workers. It declared the provisions unconstitutional and held that it was up to Parliament to go back to the drawing board.
Parliament responded to Bedford by enacting the Protection of Communities and Exploited Persons Act (PCEPA) in 2014. At the time, the BCCLA wrote that the law was flawed, not only because it recreated the dangerous conditions that made the previous provisions unconstitutional in the first place, but also because it was premised on targeting aspects of sex work (exploitation, sexual assault, involvement of minors) that would be more appropriately addressed through existing Criminal Code provisions. We warned that PCEPA would almost certainly be put before the courts to guarantee the rights and safety of marginalized and vulnerable individuals, emphasizing that “sex work in itself is neither deserving of condemnation nor inherently harmful”.
Between October 3 and 7, 2022, Canada’s sex work regime was challenged before the Ontario Superior Court of Justice in Canadian Alliance for Sex Work Law Reformv Canada. In support of PCEPA, the government argues that coercion, exploitation, and violence is inherent in sex work and that the legislation addresses systemic inequalities by targeting purchasers and third parties.
On the other hand, the applicants – a coalition of sex worker-led organizations[2] and current and former sex workers across Canada – argue that PCEPA has failed to meet its stated objectives and instead, has worsened the harms faced by sex workers. They provided court-tested evidence to demonstrate that PCEPA:
makes it more difficult for sex workers to screen clients;
undermines their ability to negotiate services;
increases the risk of eviction from safer indoor locations;
constrains access to advertising and third-party supports;
increases their vulnerability to police harassment and criminalization; and
diminishes the likelihood of reporting violence to the police.
The applicants asked the court to look beyond any lofty objectives and inquire into the actual and harmful realities of the PCEPA regime. They assert that the on-the-ground impacts of the laws do not accord with the constitutional guideposts set in Bedford. Notably, they are not the only ones to do so: the House Standing Committee on Justice and Human Rights recently reviewed the regime and recommended that “the Government of Canada recognize that protecting the health and safety of those involved in sex work is made more difficult by the framework set by the [PCEPA] and acknowledge that, in fact, the Act causes serious harm to those engaged in sex work by making the work more dangerous.”[3]
The BCCLA’s Intervention in Canadian Alliance for Sex Work Law Reform
Against this backdrop, the BCCLA intervened in this case to argue that the section 7 analysis should be informed by the substantive equality considerations set out in Fraser,[4] a Supreme Court decision concerning section 15 Charter rights. Such an approach recognizes that Charter rights are not isolated compartments, but may instead influence and support each other to encourage more complex and nuanced understandings of the law.
The Supreme Court of Canada’s understanding of equality has evolved away from a formal theory of equality, focused on ensuring that ‘similarly situated be similarly treated’, towards substantive equality, a philosophical theory focused on the impact of laws on vulnerable claimants.
In Fraser, the Court wrote that the substantive equality analysis involves a consideration of (1) the full context of the group’s situation; (2) the actual impact of the law on that situation; and (3) the persistent systemic disadvantages [that] have operated to limit the opportunities available to that group’s members.[5]
The BCCLA argued that this analytical framework should inform an assessment of section 7 Charter rights, where the court must determine whether the challenged laws have deprived the claimants of the right to life, liberty, or security of the person, contrary to the principles of fundamental justice.
While the government argues that the current laws attempt to balance the “competing interests” of those who are coerced into sex work and those who freely choose to do so, the BCCLA in its oral submissions argued that a substantive equality approach rejects such narrow views and avoids stereotyping and categorizing sex workers into false dichotomies.
Instead, the BCCLA urged the court to adopt a substantive equality lens to recognize the full breadth of intersectional realities and overlapping harms experienced by sex workers who are Indigenous, Black, racialized, migrant, trans, living with disabilities, and living in poverty. In the BCCLA’s view, the government’s approach subverts the substantive equality analysis by failing to recognize how sex workers are impacted by systemic racism, sexism, and classism, and how the law itself only serves to reinforce, rather than remedy, those structural inequalities.
According to Akosua Matthews, counsel for the BCCLA, the importance of this case is clear: “The Ontario court must recognize that the idealized pursuit of the abolition of sex work, as represented by PCEPA, cannot come at the cost of sex worker safety. A substantive equality analysis requires looking behind the veil of a seemingly neutral law and acknowledging the real harms disproportionately borne by vulnerable sex workers facing systemic marginalization.”
Here, the Ontario court has an important opportunity to reaffirm the parameters set out by the Supreme Court in Bedford,and to signal to Parliament once again that sex work laws must respect the constitutional rights of sex workers.
The BCCLA is represented by Emily Lam, Akosua Matthews, and Ruth Wellen of Kastner Lam LLP.
The BCCLA’s factum is available here: BCCLA Factum
[1]Canada (Attorney General) v. Bedford, 2013 SCC 72.
[2] The Canadian Alliance for Sex Work Law Reform.
[3] Standing Committee on Justice and Human Rights, “Preventing Harm in the Canadian Sex Industry: A review of the Protection of Communities and Exploited Persons Act” (June 2022), 44th Parl, 1st Sess, at p 37.
[4]Fraser v Canada (Attorney General), 2020 SCC 28.
There and Back Again: The Fight Over Canada’s Sex Work Laws Returns to Court
In 2013, the Supreme Court of Canada in the Bedford decision[1] ruled that three provisions in the Criminal Code related to sex work (keeping a common “bawdy house”, living on the avails, and communicating in a public place) violated the section 7 Charter rights to security of the person set out in the Charter of Rights and Freedoms. For the Supreme Court, the key point was that the laws did not merely set out conditions for those involved in sex work, but that they made things worse – by preventing individuals from taking steps to protect themselves and heightening the danger they faced. While acknowledging that Parliament may regulate sex work, the Supreme Court ruled that it cannot do so in a manner that violates the constitutional rights of sex workers. It declared the provisions unconstitutional and held that it was up to Parliament to go back to the drawing board.
Parliament responded to Bedford by enacting the Protection of Communities and Exploited Persons Act (PCEPA) in 2014. At the time, the BCCLA wrote that the law was flawed, not only because it recreated the dangerous conditions that made the previous provisions unconstitutional in the first place, but also because it was premised on targeting aspects of sex work (exploitation, sexual assault, involvement of minors) that would be more appropriately addressed through existing Criminal Code provisions. We warned that PCEPA would almost certainly be put before the courts to guarantee the rights and safety of marginalized and vulnerable individuals, emphasizing that “sex work in itself is neither deserving of condemnation nor inherently harmful”.
Between October 3 and 7, 2022, Canada’s sex work regime was challenged before the Ontario Superior Court of Justice in Canadian Alliance for Sex Work Law Reform v Canada. In support of PCEPA, the government argues that coercion, exploitation, and violence is inherent in sex work and that the legislation addresses systemic inequalities by targeting purchasers and third parties.
On the other hand, the applicants – a coalition of sex worker-led organizations[2] and current and former sex workers across Canada – argue that PCEPA has failed to meet its stated objectives and instead, has worsened the harms faced by sex workers. They provided court-tested evidence to demonstrate that PCEPA:
The applicants asked the court to look beyond any lofty objectives and inquire into the actual and harmful realities of the PCEPA regime. They assert that the on-the-ground impacts of the laws do not accord with the constitutional guideposts set in Bedford. Notably, they are not the only ones to do so: the House Standing Committee on Justice and Human Rights recently reviewed the regime and recommended that “the Government of Canada recognize that protecting the health and safety of those involved in sex work is made more difficult by the framework set by the [PCEPA] and acknowledge that, in fact, the Act causes serious harm to those engaged in sex work by making the work more dangerous.”[3]
The BCCLA’s Intervention in Canadian Alliance for Sex Work Law Reform
Against this backdrop, the BCCLA intervened in this case to argue that the section 7 analysis should be informed by the substantive equality considerations set out in Fraser,[4] a Supreme Court decision concerning section 15 Charter rights. Such an approach recognizes that Charter rights are not isolated compartments, but may instead influence and support each other to encourage more complex and nuanced understandings of the law.
The Supreme Court of Canada’s understanding of equality has evolved away from a formal theory of equality, focused on ensuring that ‘similarly situated be similarly treated’, towards substantive equality, a philosophical theory focused on the impact of laws on vulnerable claimants.
In Fraser, the Court wrote that the substantive equality analysis involves a consideration of (1) the full context of the group’s situation; (2) the actual impact of the law on that situation; and (3) the persistent systemic disadvantages [that] have operated to limit the opportunities available to that group’s members.[5]
The BCCLA argued that this analytical framework should inform an assessment of section 7 Charter rights, where the court must determine whether the challenged laws have deprived the claimants of the right to life, liberty, or security of the person, contrary to the principles of fundamental justice.
While the government argues that the current laws attempt to balance the “competing interests” of those who are coerced into sex work and those who freely choose to do so, the BCCLA in its oral submissions argued that a substantive equality approach rejects such narrow views and avoids stereotyping and categorizing sex workers into false dichotomies.
Instead, the BCCLA urged the court to adopt a substantive equality lens to recognize the full breadth of intersectional realities and overlapping harms experienced by sex workers who are Indigenous, Black, racialized, migrant, trans, living with disabilities, and living in poverty. In the BCCLA’s view, the government’s approach subverts the substantive equality analysis by failing to recognize how sex workers are impacted by systemic racism, sexism, and classism, and how the law itself only serves to reinforce, rather than remedy, those structural inequalities.
According to Akosua Matthews, counsel for the BCCLA, the importance of this case is clear: “The Ontario court must recognize that the idealized pursuit of the abolition of sex work, as represented by PCEPA, cannot come at the cost of sex worker safety. A substantive equality analysis requires looking behind the veil of a seemingly neutral law and acknowledging the real harms disproportionately borne by vulnerable sex workers facing systemic marginalization.”
Here, the Ontario court has an important opportunity to reaffirm the parameters set out by the Supreme Court in Bedford,and to signal to Parliament once again that sex work laws must respect the constitutional rights of sex workers.
The BCCLA is represented by Emily Lam, Akosua Matthews, and Ruth Wellen of Kastner Lam LLP.
The BCCLA’s factum is available here: BCCLA Factum
[1] Canada (Attorney General) v. Bedford, 2013 SCC 72.
[2] The Canadian Alliance for Sex Work Law Reform.
[3] Standing Committee on Justice and Human Rights, “Preventing Harm in the Canadian Sex Industry: A review of the Protection of Communities and Exploited Persons Act” (June 2022), 44th Parl, 1st Sess, at p 37.
[4] Fraser v Canada (Attorney General), 2020 SCC 28.
[5] Fraser at para 42.
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