The Ghosts of Bedford’s Past: CASWLR & the Illegality of Sex Work in Canada (Part I)

In Canadian Alliance for Sex Work Law Reform v Attorney General, 2023 ONSC 5197 (“CASWLR”), Goldstein J of the Ontario Superior Court of Justice (“OSCJ”) dismissed a Charter application challenging the constitutional validity of various sex work laws arising out of Bill C-36, also known as the Protection of Communities and Exploited Persons Act (the “PCEPA”).  

 

Historical Context 

The CASWLR challenge is significant because of the polarizing socio-legal and jurisprudential history of sex work laws in Canada. The most significant decision that forms necessary context for the CASWLR decision in that regard is Canada (Attorney General) v Bedford, 2013 SCC 72 (“Bedford”). Namely, almost a decade earlier, the Supreme Court of Canada (“SCC”) unanimously ruled in Bedford that three sex work laws codified in the Criminal Code, RSC 1985, c C-46 (“the Code”) were unconstitutional. 

The SCC found that the three impugned laws infringed sex workers’ security of the person interest. This interest is guaranteed under section 7 of the Canadian Charter of Rights and Freedoms (“Charter”), which provides that: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” 

The three laws at issue in Bedford were: 

(1) keeping or being found in a common bawdy house under s. 210 of the Code; 

(2) living on the avails of prostitution under s. 212(1)(j) of the Code; and  

(3) communicating in public for the purpose of prostitution under s. 213(1)(c) of the Code.  

All three were found to negatively impact sex workers’ safety in a way that was not in accordance with the principles of fundamental justice. Namely, the bawdy-house and communicating provisions were found to be grossly disproportionate, while the living on the avails provision was found to be overbroad (Bedford, paras 64, 132, 142-148). Accordingly, the SCC issued a declaration of invalidity, stating that it is not constitutionally permissible to prohibit sex workers from taking safety precautions to protect themselves in their otherwise lawful work (Bedford, para 60, emphasis added).  

 

Parliament’s Response to Bedford

In 2014, Parliament passed the PCEPA, which, as noted in CASWLR, was a direct response to the SCC’s holding in Bedford (CASWLR, para 63). Parliament’s overall stated objective, as reflected in the Preamble to the PCEPA and elucidated in Parliament’s fact sheet regarding the legislation, was three-fold: (1) Protect those who sell their own sexual services; (2) Protect communities, and especially children, from the harms caused by prostitution; and (3) Reduce the demand for prostitution and its incidence. 

The PCEPA is notable in two regards: First, as observed by Goldstein J, it marks a socio-legal paradigm shift from the “treatment of prostitution as a nuisance [as previously recognized in Bedford] toward treatment of prostitution for what it is: a form of exploitation” (CASWLR, para 63). Second, one of the most distinguishing features inherent in the PCEPA was Parliament’s choice to model the legislation on asymmetric criminalization, referred to as the “Nordic Model.” 

 

PCEPA & Asymmetric Criminalization: the Nordic Model 

Significantly, the PCEPA embodies “a Canadian variation of the ‘Nordic Model’” (CASWLR, para 2) through an asymmetric criminalization scheme. Essentially, the PCEPA “prohibits the purchase of sex but immunizes those who sell their own sexual services” (CASWLR, para 35). For example, one of the marked new Code provisions flowing directly from the PCEPA is s. 286. 1, which, for the first time in Canada, makes it a criminal offence to obtain sexual services for consideration, or communicate in any place for that purpose (“purchasing offence”). The noted immunization in this context emanates from s. 286.5 of the Code (the “immunity provisions”), which immunizes sellers of their own sexual services (i.e sex workers) from criminal liability associated with ss. 286.1 – 286.4 of the Code (CASWLR, para 20). On the contrary, criminal liability is only attached to buyers or certain third-parties (CASWLR, para 20). 

As Goldstein J clarified, “[t]he [purchasing] offence is asymmetric because criminal liability attaches to the purchaser of sexual services, but not the seller” (CASWLR, para 20). The justification behind such a scheme is that “[t]he 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” (CASWLR, para 2).

 

Overview of Arguments 

The six named individual applicants – Monica Forrester, Valerie Scott, Lanna Moon Perrin, Jane X, Alessa Mason, and Tiffany Anwar – launched the Charter challenge alongside the Canadian Alliance for Sex Work Law Reform, a public interest litigant, which represents a coalition of 25 sex-worker-led and -allied groups from across Canada (CASWLR, para 5). The CASWLR application challenged six Code offences as individually and collectively violating ss. 2(b), 2(d), 7 and 15 of the Charter (CASWLR, para 4). 

As summarized by Goldstein J, the following six Code offences underpinned the constitutional challenge (CASWLR, para 6):    

 

• s. 213(1): stopping or attempting to stop motor vehicle traffic in a public place or impeding the free flow of pedestrian or vehicular traffic in a public place, for the purpose of offering or providing or obtaining sexual services for consideration (the “stopping traffic offence”);

 

• s. 213(1.1): communicating with anyone in a public place next to a schoolground, playground, or daycare centre for the purpose of offering or providing sexual services for consideration (the “communication offence”);

 

• s. 286.1(1): purchasing, or communicating with anyone for the purpose of purchasing sexual services (the “purchasing offence”);

 

• s. 286.2(1): receiving a material or financial benefit knowing that it is obtained from the purchase of sexual services (the “material benefit offence”);

 

• s. 286.3(1): procuring, recruiting, holding, concealing, or harbouring a person who provides sexual services for consideration (the “procuring offence”); and,

 

• s. 286.4(1): advertising an offer to provide sexual services (the “advertising offence”).

 

While the stopping traffic offence pre-dates the PCEPA, the other five challenged offences emanate directly from the PCEPA, either as completely new offences or revisions from previous codification.

 

Summary of Decision 

In a lengthy 142-page decision, Goldstein J found the PCEPA to be constitutional (CASWLR, para 10). In summary, he found that (CASWLR, para 10): 

 

• None of the challenged offences violate s. 7 of the Charter. 

 

• As conceded by the Attorney General of Canada, the stopping traffic, communications, and advertising offences, as well as the communications aspect of the purchasing offences violate s. 2(b) of the Charter. However, they are saved by s. 1.

 

• The procuring and material benefit offences do not violate s. 2(b) of the Charter.

 

• None of the challenged sections violate s. 2(d) of the Charter.

 

• None of the challenged sections violate s. 15 of the Charter. 

 

Analysis

Section 7: No deprivation to life, liberty, or security of the person 

The crux of the Applicants’ section 7 argument was that the “challenged offences impose dangerous conditions on sex workers” (CASWLR, para 248). They argued that: (1) the right to life and security of the person is engaged because the PCEPA creates unsafe conditions for sex workers by effectively preventing access to safety-enhancing measures (CASWLR, para 249); (2) the right to liberty is engaged because the PCEPA criminalizes sex work (CASWLR, para 249). Namely, the Applicants argued that (CASWLR, para 249): 

 

• The prohibition on commercial enterprises in s. 286.2(5)(e) of the Code prohibits sex workers from accessing safety measures or third-party services, working in association, or operating from fixed indoor locations, increasing the danger to sex workers.

 

• The purchasing offence, the stopping traffic offence, and the communications offences all work to impede the ability of sex workers to screen clients to prevent violence or exceed boundaries set by the sex worker; the prohibitions compromise the ability of sex workers to negotiate terms and conditions;

 

• The prohibition on advertising (exempting sex workers themselves) compromises the ability of sex workers to communicate with clients to establish boundaries and prevent violence;

 

• Sex workers are denied labour standards, occupational health and safety, and income-related government programs because sex work is criminalized;

 

• PCEPA generally stigmatizes sex workers, thereby increasing discrimination and violence;

 

• PCEPA generally discourages sex workers from reporting violence they may experience to the police;

 

• PCEPA generally infringes the right to security of the person by compromising sex workers’ ability right to personal and bodily autonomy.

 

Goldstein J rejects all but two of these arguments for lack of a sufficient causal connection between the alleged harms and the PCEPA (CASWLR, para 251). The two arguments he accepts are: (1) the security of the person rights of outdoor sex workers are engaged in relation to the purchasing offence regarding the screening of customers; and (2) the security of the person rights of sex workers are engaged in relation to the purchasing offence due to the interference with bodily and sexual autonomy. 

Nonetheless, he finds that both section 7 engagements are in accordance with the principles of fundamental justice. Therefore, there is no section 7 deprivation (CASWLR, para 404).

 

Please see the next installment for a detailed analysis.

This article was edited by Meredith Wilson-Smith.