Ontario court dismisses sex workers' Charter challenge, rules laws constitutional
Ontario's Superior Court dismissed a Charter challenge launched by groups advocating for the rights of sex workers, ruling Monday that Canada's criminal laws on sex work are constitutional.
In a 142-page decision, Justice Robert Goldstein wrote that the Protection of Communities and Exploited Persons Act -- brought in by the former Conservative federal government -- balances the prohibition of "the most exploitative aspects of the sex trade" with protecting sex workers from legal prosecution.
"I find that Parliament's response to a pressing and substantial concern is a carefully crafted legislative scheme ... The offences minimally impair the Charter rights of sex workers," Goldstein wrote. "The offences also permit sex workers to take safety measures."
Goldstein found that sections of the Criminal Code outlawing communications or the stopping of traffic for the purpose of selling sexual services were constitutionally compliant and do not prevent sex workers from taking safety measures, engaging the services of non-exploitative third parties or seeking police assistance.
The Canadian Alliance for Sex Work Law Reform had argued in court last fall that the laws ushered in under former prime minister Stephen Harper fostered stigma, invited targeted violence and prevented sex workers from obtaining meaningful consent before engaging with clients -- violating the industry workers' Charter rights.
The alliance, which formed in 2012, represents 25 sex-worker organizations across Canada.
The new sex-work laws were passed in 2014, about a year after the Supreme Court of Canada struck down previous anti-prostitution laws. Even though prostitution was legal under previous laws, nearly all related activities -- such as running a brothel, acting as a third-party manager and communicating in a public place for the purposes of prostitution -- were against the law.
The new act made it against the law to pay for sexual services and for businesses to profit from it, and made communicating to buy sexual services a criminal offence. Sex workers themselves, however, are immune from prosecution for selling or advertising their services, as are non-exploitative third parties who materially benefit.
The sex workers' alliance 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. Lawyers representing transgender, Indigenous and Black sex workers also argued the new laws disproportionately harm marginalized groups.
The alliance has said there shouldn't be any criminal laws specific to sex work and advocates for a more regulated industry.
The federal government argued that legalization would lead to an in increase human trafficking, and the sex-work laws' main objective is to "target and end the demand for sexual services."
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.
"My duty is solely to determine whether the legislative scheme is Charter-compliant," he said, also noting Canada's approach mirrors those of what he called other free and democratic societies -- Sweden, Norway, France and Israel included.
Among his key findings were that, when properly interpreted, the country's laws do not prevent sex workers from working with each other or third parties who do not exploit them, such as security guards, or from seeking police assistance without fear of being charged for their work.
Goldstein wrote that much of the evidence provided in the case was coloured by limitations to available research on sex work in Canada, biases from witnesses on both sides as well as disagreements about the nature of the industry, like the number or percentage of those who enter or operate in the industry by choice rather than coercion or exploitative means such as human trafficking.
He further found that third parties can be exploiters or traffickers, as well as legitimate services such as security or booking services.
"Where a customer purchases sex, there is a significant possibility that the sex worker has been trafficked, manipulated, lured, forced and/or coerced into providing sexual services," Goldstein wrote.
"Even where a sex worker has entered the sex trade by choice, there is a significant possibility that she has become subject to the control of an exploiter or a trafficker."
Jenn Clamen, a co-ordinator with the sex workers' alliance, said sex workers across Canada are "extremely devastated" by the ruling, finding it "not just insulting but also ignorant."
"We find it extremely dismissive towards not just the systemic harms that sex workers outlined ... but also that were outlined in the extensive record that we submitted," through both research and testimony from sex workers, Clamen said.
The alliance took particular issue with Goldstein's finding that there's no "constitutional 'right' to engage in sex work" -- which Clamen said they never legally argued -- and his characterizations that sex workers misunderstand the laws, as well as conflations made between sex work and violence or human trafficking, Clamen said.
"It's extremely patronizing to suggest that people who live in the application, the harms and the consequences of those laws every day don't understand them," she said.
The alliance plans to appeal the decision, Clamen said, while continuing to press the government to create a health-and-safety framework for sex work.
A government spokesperson said Attorney General Arif Virani was "carefully reviewing the decision."
"Our government will always work to ensure that our criminal laws effectively meet their objectives, keep all Canadians safe, and are consistent with the Charter," spokesperson Chantalle Aubertin wrote in a statement.
A House of Commons justice committee review last year of the new 2014 laws on sex work found the laws made sex work more dangerous. The committee asked the government to strengthen the Criminal Code by making additional resources available to victims and law enforcement combating exploitation.
Then-attorney general David Lametti acknowledged the laws were "divisive" and that more must be done to address the risks and harms sex workers face.
This report by The Canadian Press was first published Sept. 18, 2023.
IN DEPTH
Budget 2024 prioritizes housing while taxing highest earners, deficit projected at $39.8B
In an effort to level the playing field for young people, in the 2024 federal budget, the government is targeting Canada's highest earners with new taxes in order to help offset billions in new spending to enhance the country's housing supply and social supports.
'One of the greatest': Former prime minister Brian Mulroney commemorated at state funeral
Prominent Canadians, political leaders, and family members remembered former prime minister and Progressive Conservative titan Brian Mulroney as an ambitious and compassionate nation-builder at his state funeral on Saturday.
'Democracy requires constant vigilance' Trudeau testifies at inquiry into foreign election interference in Canada
Prime Minister Justin Trudeau testified Wednesday before the national public inquiry into foreign interference in Canada's electoral processes, following a day of testimony from top cabinet ministers about allegations of meddling in the 2019 and 2021 federal elections. Recap all the prime minister had to say.
As Poilievre sides with Smith on trans restrictions, former Conservative candidate says he's 'playing with fire'
Siding with Alberta Premier Danielle Smith on her proposed restrictions on transgender youth, Conservative Leader Pierre Poilievre confirmed Wednesday that he is against trans and non-binary minors using puberty blockers.
Supports for passengers, farmers, artists: 7 bills from MPs and Senators to watch in 2024
When parliamentarians return to Ottawa in a few weeks to kick off the 2024 sitting, there are a few bills from MPs and senators that will be worth keeping an eye on, from a 'gutted' proposal to offer a carbon tax break to farmers, to an initiative aimed at improving Canada's DNA data bank.
Opinion
opinion Don Martin: Gusher of Liberal spending won't put out the fire in this dumpster
A Hail Mary rehash of the greatest hits from the Trudeau government’s three-week travelling pony-show, the 2024 federal budget takes aim at reversing the party’s popularity plunge in the under-40 set, writes political columnist Don Martin. But will it work before the next election?
opinion Don Martin: The doctor Trudeau dumped has a prescription for better health care
Political columnist Don Martin sat down with former federal health minister Jane Philpott, who's on a crusade to help fix Canada's broken health care system, and who declined to take any shots at the prime minister who dumped her from caucus.
opinion Don Martin: Trudeau's seeking shelter from the housing storm he helped create
While Justin Trudeau's recent housing announcements are generally drawing praise from experts, political columnist Don Martin argues there shouldn’t be any standing ovations for a prime minister who helped caused the problem in the first place.
opinion Don Martin: Poilievre has the field to himself as he races across the country to big crowds
It came to pass on Thursday evening that the confidentially predictable failure of the Official Opposition non-confidence motion went down with 204 Liberal, BQ and NDP nays to 116 Conservative yeas. But forcing Canada into a federal election campaign was never the point.
opinion Don Martin: How a beer break may have doomed the carbon tax hike
When the Liberal government chopped a planned beer excise tax hike to two per cent from 4.5 per cent and froze future increases until after the next election, says political columnist Don Martin, it almost guaranteed a similar carbon tax move in the offing.
CTVNews.ca Top Stories
More than 115 cases of eye damage reported in Ontario after solar eclipse
More than 115 people who viewed the solar eclipse in Ontario earlier this month experienced eye damage after the event, according to eye doctors in the province.
Toxic testing standoff: Family leaves house over air quality
A Sherwood Park family says their new house is uninhabitable. The McNaughton's say they were forced to leave the house after living there for only a week because contaminants inside made it difficult to breathe.
Decoy bear used to catch man who illegally killed a grizzly, B.C. conservation officers say
A man has been handed a lengthy hunting ban and fined thousands of dollars for illegally killing a grizzly bear, B.C. conservation officers say.
B.C. seeks ban on public drug use, dialing back decriminalization
The B.C. NDP has asked the federal government to recriminalize public drug use, marking a major shift in the province's approach to addressing the deadly overdose crisis.
OPP responds to apparent video of officer supporting anti-Trudeau government protestors
The Ontario Provincial Police (OPP) says it's investigating an interaction between a uniformed officer and anti-Trudeau government protestors after a video circulated on social media.
An emergency slide falls off a Delta Air Lines plane, forcing pilots to return to JFK in New York
An emergency slide fell off a Delta Air Lines jetliner shortly after takeoff Friday from New York, and pilots who felt a vibration in the plane circled back to land safely at JFK Airport.
Sophie Gregoire Trudeau on navigating post-political life, co-parenting and freedom
Sophie Gregoire Trudeau says there is 'still so much love' between her and Prime Minister Justin Trudeau, as they navigate their post-separation relationship co-parenting their three children.
Last letters of pioneering climber who died on Everest reveal dark side of mountaineering
George Mallory is renowned for being one of the first British mountaineers to attempt to scale the dizzying heights of Mount Everest during the 1920s. Nearly a century later, newly digitized letters shed light on Mallory’s hopes and fears about ascending Everest.
Loud boom in Hamilton caused by propane tank, police say
A loud explosion was heard across Hamilton on Friday after a propane tank was accidentally destroyed and detonated at a local scrap metal yard, police say.
Local Spotlight
DonAir force takes over at Oilers playoff games
As if a 4-0 Edmonton Oilers lead in Game 1 of their playoff series with the Los Angeles Kings wasn't good enough, what was announced at Rogers Place during the next TV timeout nearly blew the roof off the downtown arena.
'It was instant karma': Viral video captures failed theft attempt in Nanaimo, B.C.
Mounties in Nanaimo, B.C., say two late-night revellers are lucky their allegedly drunken antics weren't reported to police after security cameras captured the men trying to steal a heavy sign from a downtown business.
Fergus, Ont. man feels nickel-and-dimed for $0.05 property tax bill
A property tax bill is perplexing a small townhouse community in Fergus, Ont.
Twins from Toronto were Canada's top two female finishers at this year's Boston Marathon
When identical twin sisters Kim and Michelle Krezonoski were invited to compete against some of the world’s most elite female runners at last week’s Boston Marathon, they were in disbelief.
Mystery surrounds giant custom Canucks jerseys worn by Lions Gate Bridge statues
The giant stone statues guarding the Lions Gate Bridge have been dressed in custom Vancouver Canucks jerseys as the NHL playoffs get underway.
'I'm committed': Oilers fan won't cut hair until Stanley Cup comes to Edmonton
A local Oilers fan is hoping to see his team cut through the postseason, so he can cut his hair.
'It's not my father's body!' Wrong man sent home after death on family vacation in Cuba
A family from Laval, Que. is looking for answers... and their father's body. He died on vacation in Cuba and authorities sent someone else's body back to Canada.
'Once is too many times': Education assistants facing rising violence in classrooms
A former educational assistant is calling attention to the rising violence in Alberta's classrooms.
What is capital gains tax? How is it going to affect the economy and the younger generations?
The federal government says its plan to increase taxes on capital gains is aimed at wealthy Canadians to achieve “tax fairness.”