Prostitution laws, not sex work, source of 'structural inequality,' says lawyer

Sex workers challenging prostitution laws in court Sex workers have submitted a constitutional challenge over a Harper-era prostitution law, arguing the law fails to protect them.

OTTAWA — The laws governing prostitution in Canada -- not sex work itself -- are creating inequality, a lawyer told the Ontario Superior Court on Tuesday as part of a constitutional challenge.

"Sex work itself is not a source of structural inequality. However, the impugned laws are," said Pam Hrick, the executive director and general counsel for the Women's Legal Education and Action Fund, which is an intervener in the court case.

"The effects include the constant over-surveillance by police in marginalized communities, as well as barriers, including accessing and maintaining housing," she added.

"The laws have the impact of restricting the agency of sex workers."

The Supreme Court of Canada struck down the country's anti-prostitution laws in 2013 after lawyers argued provisions were disproportionate, too broad and put sex workers at risk of harm.

The Conservative government passed a new bill to replace them in December 2014.

The Canadian Alliance for Sex Work Law Reform, which includes 25 sex-worker organizations across the country, started arguing in a Toronto courtroom on Monday that the 2014 legislation fosters stigma, invites targeted violence and removes safe consent.

They also argue it violates the Canadian Charter of Rights and Freedoms.

Under the previous laws, prostitution was legal, even though 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. It also made communicating to buy sexual services a criminal offence, even if those transactions take place over the internet.

The federal government maintains those new statutes do not prevent people selling sex from taking safety measures, and that they are meant to to reduce both the purchase and the sale of sexual services.

Lawyers representing transgender, Indigenous and Black sex workers argued in court Tuesday the new laws are too restrictive and disproportionately harm marginalized groups.

Studies show Indigenous, transgender, nonbinary and racialized migrant individuals are overrepresented in the sex work industry. They also show sex workers belonging to marginalized groups are excluded from other employment sectors for a variety of reasons, including discrimination, colonialism and immigration status.

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

Michael Rosenberg, the lawyer representing the alliance, said in court Tuesday that decriminalizing sex work "is the only rational choice" to the advocacy groups involved.

He also told Ontario Superior Court Justice Robert Goldstein how he thinks it should happen.

"And in a political sense, that's what they'd like to see," Rosenberg said of decriminalization.

"But that's not how it works. In this courtroom, you aren't asked to decide what Parliament must do. What you can do is you can recognize unconstitutional legislation, and you can strike it down," he said.

The federal government has not yet had an opportunity to defend its position in court.

In a written statement Tuesday, Justice Minister David Lametti's office said the minister "will always work to ensure that our criminal laws effectively meet their objectives, keep all Canadians safe, and are consistent with the Charter of Rights and Freedoms."

The 2014 law required that it be reviewed five years after it passed.

The House of Commons justice committee met eight times since February to review the law and made 17 recommendations, including a call to remove specific sections of the law because of the harmful effects on sex workers.

Lametti has 120 days to respond to those recommendations and is expected to do so before Oct. 20.

This report by The Canadian Press was first published Oct. 4, 2022.