Exchanging sex for money is illegal in Canada. This was confirmed by an Ontario court last month in a case commenced by the Canadian Alliance for Sex Work Law Reform and six individuals with experience in the commercial sex industry.
Justice Goldstein of the Superior Court of Justice upheld as constitutional six criminal offences targeting the commercial exchange of sex between adults. This decision followed at least nine earlier decisions where courts across Canada considered whether criminal prostitution laws introduced by Stephen Harper’s conservative government in 2014 violated the Charter of Rights and Freedoms.
Recently, the Alberta Court of Appeal also upheld as constitutional two of those offences. The Ontario Court of Appeal found three of the offences constitutional last year.
Two findings from these decisions are important. First, after almost a decade in force, Canada’s criminal prostitution laws remain poorly understood. Second, the real issue for many who oppose those laws is not that the laws are unconstitutional, it is that sex work is treated as a crime and not a job. Recent rulings suggest any changes in the law need to come from Parliament, not the courts.
Six criminal offences now target the commercial exchange of sex in Canada. The criminal offences enacted in 2014 target buying sex, materially benefitting from someone else’s sale of sex, procuring or inducing someone to sell sex and advertising sex for sale. Additional criminal offences target communicating to sell sex in places where children are likely to be and impeding traffic while negotiating the purchase or sale of sex.
When Canada chose this new policy approach and enacted criminal laws to pursue it, it followed countries like Sweden, Norway and Iceland in recognizing the commercial exchange of sex as an inherently harmful activity. This “equality model” approach to prostitution recognizes that the commercial exchange of sex occurs in a context of intersecting inequalities and is accompanied by a high risk of violence.
This policy approach also recognizes that there is a link between the commercial sex market and human trafficking. The goal is to reduce the number of people exposed to social and individual harms in and from the commercial sex market by reducing the size of that market.
In finding all six criminal offences constitutional last month, Justice Goldstein pointed directly to misunderstandings about what the laws do — and do not — capture. Witnesses for the applicants provided evidence that the laws prevented sex workers from taking safety measures that could increase their safety – like hiring bodyguards or working together. But the court found those measures were legally permitted through exceptions to the material benefit offence (allowing for non-exploitive commercial arrangements) and through a legislated immunity from prosecution for those providing sexual services.
In its decision recently released, the Alberta Court of Appeal agreed with this interpretation of the laws.
The applicants in the Alliance case also argued that it was lawful for sex workers to provide sexual services for money under the current regime. Justice Goldstein also disagreed with this interpretation of the laws.
Parliament made paying for sex a criminal offence. Those providing sex for payment are aiding, abetting or counselling that offence and so are parties to the offence. The only reason they are not prosecuted is because they are provided with immunity from prosecution – based in part on an understanding that many sellers are vulnerable.
Which leads to the second important observation made by Justice Goldstein. The real problem for those who oppose the current laws is not that the laws are unconstitutional, it is that the commercial exchange of sex is treated as a crime and not a job.
The applicants argued that the challenged criminal provisions violated their Charter rights by denying them sexual autonomy and increasing their risk of experiencing violence while engaging in sex work. Justice Goldstein found the laws did not violate their rights because there is no Charter right to engage in sex work and because the safety-enhancing measures identified by the applicants as unlawful were, in fact, legally permitted under the current laws, properly interpreted.
More public education about the current policy approach to prostitution and the criminal laws enacted to pursue it would help correct misunderstanding of the laws. It would ensure Canadians know why exchanging sex for money is a crime.
It would also better ensure those who continue to provide sexual services for consideration in this unlawful context know what safety-enhancing measures they may legally take.
But the real problem for many who oppose the current laws is that sex work is treated as a crime and not a job. For that policy to change, it is likely Parliament that needs to be convinced, not the courts.
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About the author:
Debra M. Haak is an Assistant Professor in the Faculty of Law at Queen’s University.
