Ontario court dismisses sex workers’ Charter challenge

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.

Justice Robert Goldstein's decision says the Protection of Communities and Exploited Persons Act, brought in by the former 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 Canadian Alliance for Sex Work Law 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 the industry workers' Charter rights.

The Protection of Communities and Exploited Persons Act was 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.

Even though prostitution was legal under the previous laws, 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 do not prevent people selling sex from taking safety measures and says they are meant to reduce both the purchase and the sale of sexual services.

The Canadian Alliance for Sex Work Law Reform 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.

The alliance has said there shouldn't be any criminal laws specific to sex work and has dozens of recommendations to create a more regulated industry.

Ruling dismisses concerns raised by sex workers

Ellie Ade Kur, executive director of Maggie's Toronto Sex Worker Action Project, was a fact witness in the case.

She said the ruling "completely dismisses a lot of the concerns that sex workers have raised around the reality of what criminalizing sex work does" and how it impacts their work and their lives.

"One of the larger things we've been talking a lot about is how a lot of the the laws criminalizing sex work are largely framed as meant 'to protect' many of us, when in reality many sex workers are actually subject to prosecution under criminal laws around sex work," she told CBC Toronto.

"A lot of these things prevent us from being able to work in groups, to implement safety mechanisms, to be able to engage third parties who are able to support with screening 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 choices, but that is up to Parliament, not the court, to decide.