This is a constitutional challenge in the Ontario Superior Court of Justice brought by an alliance of sex worker rights groups from across the country, led by the Canadian Alliance for Sex Work Law Reform. The alliance is challenging the following sex work prohibitions in the Criminal Code:
- impeding traffic (s. 213(1))
- public communication (s. 213(1.1))
- purchasing (s. 286.1(1))
- materially benefiting (s. 286.2(1))
- recruiting (s. 286.3(1)), and
- advertising (s. 286.4).
The alliance argues that that these provisions violate the Charter rights to freedom of expression (s 2(b)), life, liberty, security of the person (s. 7), and equality (s. 15).
These provisions are part of the package of laws called the Protection of Communities and Exploited Persons Act (“PCEPA”) which the federal government enacted following the 2013 decision of Canada (Attorney General) v Bedford, where the Supreme Court of Canada held that three former Criminal Code offences related to sex work were unconstitutional.
The BCCLA argued that PCEPA’s infringement on autonomy perpetuates the marginalization of sex workers, increasing their vulnerability to police harassment, criminalization and risk of violence. The BCCLA focused on the need for the court to take a substantive, intersectional equality approach when analyzing violations of life, liberty, and security of the person. This approach supports the alliance’s position that the provisions violate section 7 and cannot be justified by the government under section 1. Specifically, the gross disproportionality analysis must consider the intersectional harms disproportionately experienced by marginalized sex workers, including those who are Indigenous, trans, non-binary, racialized, living with disabilities, and/or living in poverty.
The PCEPA provisions are contrary to the principles of fundamental justice.: They are overbroad because they capture conduct that bears no connection to the PCEPA’s objectives of preventing the exploitation of sex workers while facilitating their access to safety measures. The purposes of the PCEPA can and must be achieved in a manner that does not disproportionally punish an already marginalized population within the group that the PCEPA purports to protect.
