Sex-Workers 20221003 Sex workers and their supporters gather outside the Ontario Superior Court during the launch of their constitutional challenge to Canada's sex work laws, on Monday, October 3, 2022. THE CANADIAN PRESS/ Tijana Martin
Ontario’s Superior Court has dismissed a Charter challenge launched by an alliance of groups advocating for the rights of sex workers, ruling that Canada’s criminal laws on sex work are constitutional.
Sex worker organizations are saying that the decision is harmful to people who are in the sex trade.
“Sex workers deserve a decision that recognizes the human rights violations faced every day from a criminal law that systematically discriminates, over polices, and underprotects all sex workers, particularly those who are most marginalized by that same criminal law,” said Jenn Clamen, national coordinator of the Canadian Alliance for Sex Work Law Reform, or CASWLR.
Other alliance members told APTN News that they felt “disappointed” about the ruling.
“It is dismissive of our concerns as a community,” said Kit Rothschild, the co-executive director for the PACE society, a non-profit in Vancouver’s Downtown Eastside that provides support and education to sex workers.
“It is deeply, deeply disappointing the way that the court has dismissed evidence brought by expert testimony from the side of the applicants.”
CASWLR members favour decriminalization as the best option for sex workers.
“The systemic inequalities that are exacerbated by the criminalization of sex work cannot be ignored. These violations will not end until sex workers’ rights are recognized, and sex work is fully decriminalized through the removal of all criminal provisions introduced through the [current legislation],” said a statement from CASWLR.
Austin Smith with the Sex Workers of Winnipeg Action Coalition told APTN they found the decision “infuriating”.
“There’s just a lot of denial that these laws also create and enforce stigma around sex work…sex work laws particularly affect the most marginalized in our community,” they said.
Balancing prohibition and protection
Justice Robert Goldstein’s decision says the Protection of Communities and Exploited Persons Act, brought in by the former federal Conservative government, balances prohibition of “the most exploitative aspects of the sex trade” while protecting sex workers from legal prosecution.
Goldstein found 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 CASWLR argued in court that the laws “foster stigma, invite targeted violence and prevent sex workers from obtaining meaningful consent before engaging with clients — violating the industry workers’ Charter rights.
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“Sex workers who are Indigenous, Black, migrant, and trans experience the most harmful impacts of the criminalization of sex work, as we are communities that are already overpoliced and under protected,” added Monica Forrester, one of the individual applicants in the case in an emailed statement.
“We need sex work laws removed from the Criminal Code so there is at least one less tool law enforcement can use against us,” she said.
The CASWLR said on social media that the 142-page decision contained “a lot of incorrect information” and for being dismissive of sex workers’ concerns.
Nordic model
Ultimately, the Canadian government adopted a variation of legislation called the “Nordic Model”.
According to the decision by Goldstein, the “Nordic Model treats sex work as an inherently harmful activity that harms women and girls, negatively impacts marginalized groups (especially racialized and Indigenous women and girls) and harms the communities in which it takes place.”
The legislation was called the Protection of Communities and Exploited Persons Act. It passed in 2014, about a year after the Supreme Court of Canada struck down previous anti-prostitution laws after lawyers argued existing provisions were disproportionate, overbroad and put sex workers at risk of harm.
Under the previous laws sex work was legal, but nearly all related activities — such as running a brothel, pimping and communicating in a public place for the purposes of prostitution — were against the law.
The prostitution-related offences brought in under Former prime minister Stephen Harper moved closer to criminalizing prostitution itself by making it against the law to pay for sexual services and for businesses to profit from it, as well as making communicating to buy sexual services a criminal offence.
The federal government maintained those new statutes don’t prevent people selling sex from taking safety measures and said they are meant to reduce both the purchase and the sale of sexual services.
The alliance argued last October that the new laws are more restrictive than what they replaced and force sex workers, and people who work with them, to operate in the context of criminalization.
“We really view decriminalization as the only legal format for sex worker’s experience and voices to be really heard,” said Rothschild.
With files from the Canadian Press
