The Ontario Superior Court has decided to uphold the Protection of Communities and Exploited Persons Act after a constitutional challenge from an alliance of sex worker advocacy groups.
Justice Robert Goldstein’s decision says the act, brought in by the former Conservative government, balances the prohibition of “the most exploitative aspects of the sex trade” with 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.
PCEPA came into effect in December 2014 to shift the focus of criminalization from those selling their own sexual services to those purchasing and benefiting from others’ sexual services.
The decision from Goldstein is one that women’s groups who support victims and survivors of sex trafficking are celebrating.
“It’s an amazing day for the rights of Canadian women, especially those who are most vulnerable. So we’re very pleased with the decision. It’s right in line with what we were hoping for and totally in line with international laws,” says Jennifer Dunn, executive director of the London Abused Women’s Centre.
“We have women who come through our doors who tell us that they are choosing to be involved in the sex trade and that that’s OK. But the real thing here is that the majority of women and girls who are involved don’t choose, and they are the most vulnerable, and we need to always think of those who are most vulnerable and think about how we can help them.”
Janine Benedet, a lawyer and intervenor in the case on behalf of the Women’s Equality Coalition, expressed her joy about the decision.
“I’m delighted by the decision. I think it’s a tremendously useful confirmation of what these laws were designed to do and why they are, in fact, consistent with the Charter of Rights and Freedoms,” she says.
Benedet says the current laws are “designed to recognize that the two parties to this so-called commercial transaction are not in positions of equality and that prostitution is frequently an exploitative practice.”
In the decision, Goldstein wrote, “The legal status of sex work is no longer ambiguous. The purchase of sex is prohibited. Sex work is no longer legal, but sellers of their own sexual services are immune from prosecution.”
Dunn said the strategy and laws Canada has in place to address prostitution and sex trafficking are based on an idea called the “equality model,” which she says is the best strategy to address exploitation.
“The equality model sees prostitution and trafficking as linked, the demand for prostitution fuelling sex trafficking and sexual exploitation. So this legislation recognizes that it is the right of women and girls to live free from the harms and violence of prostitution and sex trafficking,” Dunn says.
A report by the Canadian Centre for Justice and Community Safety Statistics called Crimes related to the sex trade: Before and after legislative changes in Canada found that once the Protection of Communities and Exploited Personal Act came into effect, fewer women were accused or changed in incidents related to prostitution.
According to the report, the number of women accused under Section 213 fell from 888 in 2010 to just five women accused in Canada in 2019.
Global News reached out to the Canadian Alliance for Sex Work Law Reform following the decision and has not heard back.
The alliance argued that several sections of the Criminal Code are unconstitutional, and criminalizing advertising sexual services and communicating to buy or sell sexual services violates workers’ Charter rights.
But Benedet says the judge ultimately found that was not the case and the “experts that they called in support fundamentally misconstrued and misunderstood what the law said.”
“The judge said very clearly, it’s not the laws that are harming you. It’s the men. It’s the man who purchased you and helping you and ultimately interfering with those men contributes to reducing the harm, not to propagating it,” Benedet says.
Benedet also says it’s important to note that Canada’s laws around prostitution and the buying and selling of sex are not controversial on the international stage, pointing out that they are in keeping with similar laws in France, Israel, Ireland and several Nordic countries.
Wendy Lowe, executive director of Defend Dignity, an organization working to stop sexual exploitation, said the court’s decision “acknowledges the personal autonomy of individuals who choose sex work as their profession” while recognizing that most people are not choosing to enter the sex trade.
She says this decision also sends a clear message to organized crime that this would not be an easy revenue stream.
“Across the world, everyone recognizes that the most profitable revenue stream for organized crime is no longer drugs, but actually the trafficking of people,” Lowe says.
“The court empowered law enforcement to just do the hard work of laying of building cases and laying charges against pimps and helping Johns to recognize that what they’re doing is illegal and deeply harmful and traumatic.”
— with files from The Canadian Press’ Tyler Griffin