This case is a constitutional challenge to sections 286.3 and 286.4 of the Criminal Code brought by Mr. Kloubakov and Mr. Moustaine, who were convicted with these sex work related offences. These offences are the “receiving a material benefit from sexual services” and the “procuring” provisions, and they were part of the package of laws called the Protection of Communities and Exploited Persons Act (“PCEPA”).
PCEPA was enacted by the federal government in 2014 following the 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 argues PCEPA restrictions arbitrarily undermine sex workers’ autonomy and impose dangerous conditions. PCEPA contradicts Bedford and violates sex workers’ section 7 Charter rights to liberty and security of the person. By criminalizing sex work and limiting sex workers to non-profit work associations (an unrealistic hypothetical), PCEPA restricts sex workers from assessing and addressing their protected safety needs. PCEPA confronts sex workers with an untenable choice: work alone, placing themselves in materially dangerous conditions, or risk criminalization by choosing to work with others for their own safety and wellbeing.
As a decision related to the body, individual decisions regarding sexual activity—even if including an element of remuneration—must be regarded as falling within the sphere of personal decisions integral to individual autonomy and dignity.
PCEPA provisions are contrary to the principles of fundamental justice. The impacts of PCEPA on sex workers are both grossly disproportionate to the effects of protecting them and overly broad because provisions apply to third party relationships that are not exploitative. Third party relationships refers to service providers a sex worker can hire, such as a driver.
PCEPA claims to protect sex workers, but the provisions have the paradoxical effect, putting sex workers at greater risk for violence and exploitation. These outcomes have no relationship to the stated purposes of the law and the effect is arbitrary.
