The Ghosts of Bedford’s Past: CASWLR & the Illegality of Sex Work in Canada (Part II)
For an overview of the legislative and judicial history of the case, please see the first installment of this contribution.
In this second contribution, I focus my analysis on key takeaways relating to Goldstein J’s holding that the PCEPA passes constitutional muster. Given the multiple thorny Charter issues arising out of the CASWLR decision, this contribution will focus solely on the s. 7 Charter aspect. This is because the crux of the applicants’ argument focused on section 7, namely the assertion that the PCEPA does not address the significant harms identified by the SCC in Bedford, and in fact, simply replicates them (CASWLR, para 4). As such, I suspect that this will be a focal point on appeal.
The Illegality of Sex Work in Canada
Goldstein J begins the section 7 analysis by disagreeing with the Applicants that the sale of sex is still a permitted activity by virtue of PCEPA’s codified immunity provisions (CASWLR, para 229). He goes on to draw two legislative analogies, stating that “[o]n basic principles of criminal law, sellers of sex could still be convicted in relation to a commercial transaction for sex in different ways, absent the immunity provisions” (CASWLR, para 229). This includes aiding and abetting and/or counselling under the Code (CASWLR, paras 229-232). Goldstein J goes on to clarify that “[t]he reason a seller of sex cannot be prosecuted is not because it is legal to sell sex. A seller cannot be prosecuted because of the immunity provisions in relation to the sale of one’s own sexual services” (CASWLR, para 233).
I understand Goldstein J’s point to be that attaching criminal liability to one aspect of the “exchange” of sexual services (the purchase) invariably affects the second aspect (the sale). Sex work is therefore not legal because criminal liability associated with the purchase gives rise to other forms of liability associated with the sale, within the broader context of “exchange” (such as aiding and abetting, or counselling as per the Code). On this view, the immunity provisions simply prevent sex workers from being charged in instances where they (presumably) otherwise would be. As Goldstein J holds, “if sex work were now legal, the immunity provisions would not be required” (CASWLR, para 234).
Respectfully, I found this part of the judgement to be confusing. Read in tandem with Goldstein J’s other holdings, treating the illegality of sex work as a foregone conclusion seems both counterintuitive and appears to obfuscate Goldstein J’s successive legal analysis. To that end, I believe this lack of fluidity largely flows from the intellectual dishonesty of the PCEPA itself and the practical difficulty in applying governing doctrine to an asymmetric criminalization scheme. As such, there are a few points worth unpacking as it concerns Goldstein J’s ruling about the illegality of sex work, particularly because this was a live issue between the parties and intervenors, other trial court decisions, and to varying extents, the public more broadly (this author included).
First, the illegality of sex work is significant in distinguishing the case at hand from Bedford. As Goldstein J noted at the outset of the CASWLR decision, “for many years … the sale or purchase of sex was not a criminal offence. Everything surrounding it was” (CASWLR, para 1). As a matter of doctrinal analysis, much of the legal success in the Bedford decision rested on the fact that the three impugned laws had the effect of making an otherwise lawful activity more dangerous (Bedford, para 87). In other words, Parliament did not explicitly legislate or criminalize the purchase or sale of sexual services; rather, the three impugned laws simply worked to affect material conditions and circumstances of sex work. Accordingly, the SCC rejected the Attorney General’s argument that the harm grounding the applicant’s security of the person claim was a result of either third parties (such as “johns” or “pimps”) or the choice to engage in a “risky” activity (Bedford, paras 84-89).
As such, in finding that the three provisions relating to sex work were unconstitutional, the SCC in Bedford placed significant emphasis on the fact that at the time, sex work was not illegal. Writing for the unanimous court, McLachlin J (as she then was) stated that (Bedford, para 60, emphasis added):
“[t]he prohibitions at issue do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky – but legal – activity from taking steps to protect themselves from the risk.”
Of course, the SCC also elucidated that it was within Parliament’s purview to “impos[e] limits on where and how prostitution may be conducted” (Bedford, para 165). However, at the time, sex work’s legality overwhelmingly grounded the success of the Charter challenge.
Asymmetric Criminalization Changes the Landscape
To that end, the significance of the Nordic Model and asymmetric criminalization, as reflected in the PCEPA, forms crucial context in CASWLR. Unlike Bedford, Parliament has chosen to attach criminal liability to one aspect of the “exchange” of sex work. Goldstein J addresses this point explicitly, stating (CASWLR, para 236):
“ … asymmetric prohibition changes the context of the s. 7 argument. Previously, the purchase (and sale) of sex, had not been illegal. The focus of Bedford was on prohibitions that made a legal activity riskier. The fundamental activity is now illegal. Sex workers had the right to sell their own sexual services in the pre-Bedford regime. They do not have that right under PCEPA.”
I agree that the significance of the Nordic Model shifts the parameters of the debate. However, as alluded to above, I find that CASWLR’s treatment of the illegality of sex work appears to obfuscate the section 7 analysis.
First, what arguably emerges from Goldstein J’s analysis above is the notion that the variation of the Nordic Model inherent in the PCEPA is premised upon the sale and purchase of sexual services as being bi-directionally related. Namely, on this view, the exchange of sexual services for consideration necessarily presupposes that you cannot have the sale of sexual services without purchase, and vice-versa. For example, in referencing aiding and abetting and counselling under the Code, Goldstein J states that “obviously a seller of sex does not commit the crime of purchasing” (CASWLR, para 230); however, “a person who sells sex is facilitating, or encouraging at the very least, the purchase of sex” (CASWLR, para 231).
This is where I find that the PCEPA’s theoretical mandate is divorced from practice. The overarching aim of the PCEPA is to end demand for the purchase of sexual services. However, as acknowledged by Goldstein J: “[t]he purpose of PCEPA [is also] to prohibit the exploitation of sex workers by others” (CASWLR, para 48). To that end, the difficulty with Goldstein J’s line of argument is that it appears to undermine this underlying objective of the PCEPA of protecting against the “exploitation” of sex workers.
Namely, as noted in the Government’s 2014 Technical Paper on this topic, the PCEPA is premised upon reforms that overwhelmingly target two parties within the “exchange” of sex work: (1) those who create the demand for sexual services, and; (2) those who capitalize on that demand. Through this lens, Parliament characterizes the former category as the purchasers of sex work. Elsewhere in the Technical Paper, Parliament explicitly states: “[t]he purchase of sexual services creates the demand for prostitution, which maintains and furthers pre-existing power imbalances, and ensures that vulnerable persons remain subjected to it” (emphasis added).
It is significant that Parliament chose to qualify this understanding of “exchange” in relation to the purchasers (or clients) of sexual services as driving the demand. On its face, this appears to underpin Parliament’s stance that sex workers are inherently exploited. Therefore, attaching criminal liability to the purchase of sex, rather than the sale, is justified both normatively and legally, as it will (seemingly) work to reduce the demand while also protecting the very group Parliament is seeking to protect.
However, on Goldstein J’s view, the very acknowledgement that “a person who sells sex is facilitating, or encouraging at the very least, the purchase of sex” (CASWLR, para 231, emphasis added) implicitly characterizes sex workers as driving the demand of sex work itself, which is at odds with Parliament’s enumerated stance. Likewise, this is where I believe the PCEPA suffers from a lack of normative and legal fluidity. If it is Parliament’s stance that purchasers create the demand and sex workers are inherently exploited, it is difficult to understand how Parliament would seek to protect sex workers by criminalizing them elsewhere in the Code, as Goldstein J surmises Parliament does, but for the immunity provisions.
Collateral Consequences or Criminalizing Sex Work by Proxy?
Goldstein J goes on to further contextualize the section 7 analysis. First, he states that “many of the harms complained of [by the Applicants] are simply the collateral consequence of prohibiting the purchase of sex by customers, or the collateral consequences of the other challenged offences” (CASWLR, para 238, emphasis added). He ties this in with Parliament’s purpose as it relates to the PCEPA, specifically the permissible constitutional mandate “to prohibit conduct that harms people — even when those people argue that they don’t need the help” (CASWLR, para 241). He further states: “In enacting PCEPA, Parliament was concerned with the safety of those involved in the sex industry — even those who made a conscious choice to participate” (CASWLR, para 241).
In my view, it is difficult to square this latter assertion with Goldstein J’s holding that the collateral consequences flow only from the criminalization of the purchase of sexual services. Arguably, under this lens, it would be just as appropriate to justify the conclusion that sex work is now “illegal” because it is a collateral consequence of criminalizing the purchase of sex (and hence, illegal by proxy), rather than an obvious legal conclusion arising out of the legislated immunity provisions. Again, this flows from the notion that the “exchange” of sexual services requires both the sale and the purchase of sexual services.
Parliament explicitly acknowledges as much, noting in the explanation section of the PCEPA fact sheet regarding the purchasing offence that: “prostitution is a transaction that involves both the purchase and the sale of sexual services” (emphasis added). The difficulty is that if we accept that the sale and purchase of sexual services cannot be severed from the broader context of “exchange” and hence, “demand”, it is difficult to understand how Goldstein J appears to sever the harms associated with only the criminal liability attached to the purchase of sex by characterizing the harms to sex workers as collateral consequences.
This also lends credence to the Applicants’ argument that the PCEPA simply reproduces the harms identified in Bedford. Again, in my respectful view, this is a result of the intellectual dishonesty of the legislation itself. By choosing to attach criminal liability to one aspect of the “exchange” of sexual services (the purchase), while characterizing the other aspect as inherently degrading and exploitative, and respectively, not subject to criminal liability (the sale), Parliament arguably found a loophole to address the overarching safety mandate that animated Bedford.
To be clear, I am not suggesting that Parliament should have opted to explicitly criminalize sex work, or that there is no social or legal value to the immunity provisions themselves. Rather, what I emphasize is that this variation of asymmetric criminalization works in an overtly paternalistic and ambiguous fashion to transfer the very real harms associated with sex work to the very group Parliament is seemingly aiming to protect through legislation. The legal loophole is precisely the fact that this scheme encourages the conclusion that a choice to engage in sex work, whether “conscious” or not, leads to harm that is simply a collateral consequence of that very choice.
This is also difficult to meaningfully apply to governing doctrine. For example, in Bedford, the SCC found that the bawdy-house provision was grossly disproportionate to the objective of “combat[ting] neighbourhood disruption or disorder” and “safeguard[ing] public health and safety” because it created conditions that significantly affected sex workers’ safety (Bedford, para 132). Crucially, the significant harms identified were deemed grossly disproportionate to the rather benign objective.
The context in CASWLR is different precisely because Parliament has chosen to shift the overall objective of the sex work laws to one that is, on its face, far weightier. Namely, the PCEPA’s objective is to “reduce the demand for prostitution with a view to discouraging entry into it, deterring participation in it and ultimately abolishing it to the greatest extent possible” (CASWLR, para 46). Doctrinally, leveraging the identified harms in CASWLR against this new objective obfuscates the legal analysis, especially because Bedford stands for the proposition that the effectiveness of an impugned law does not affect the legal analysis (Bedford, para 123).
In simpler words, the alleged harms must be assessed against a far weightier objective than the one previously identified in Bedford, which works in Parliament’s favour because the second step of the s.7 analysis – whether a deprivation is in accordance with the principles of fundamental justice – “do[es] not look to how well the law achieves its object, or to how much of the population the law benefits.” (Bedford, para 123). The difficulty rests in the fact that the significant harms to sex workers still exist; however, they become obfuscated against this heightened objective and the fact that, as Goldstein J noted, “there is no constitutional right to engage in sex work” (CASWLR, para 11).
This is precisely why, in my respectful opinion, the PCEPA is intellectually and normatively dishonest. It seeks to end the demand for sex work by effectively making use of a legal loophole. By doing so, it forces sex workers to shoulder the harms of an activity by virtue of the fact that the impugned activity is now veiled under a doctrinal impasse. As noted above, while the stated objective may be different, the identified harms largely remain the same, if not worse.
I anticipate that CASWLR will be appealed, given the significance of the underlying Charter challenge(s). To that end, in my view, the evidence provided by the applicant’s lends credence to the assertion that criminalization of sex work perpetuates violence; changing the legal status of sex work to one which is asymmetric (and contrary to Goldstein J’s holding, in my opinion, still ambiguous) does not counter this reality, but in many ways, simply reinforces it. It will be interesting to see how this is dealt with, if at all, on appeal.
This article was edited by Meredith Wilson-Smith.