Judge rules key federal sex work laws unconstitutional
|Toronto Star 22 Apr 2021 at 18:35|
An Ontario Superior Court judge has declared unconstitutional legal provisions that ban sex workers from , including by being able to advertise on third-party platforms, hire security, work together and communicate with clients.
“The legislation allows commercial sex work to continue,” Sutherland wrote in his decision, finding that the law breaches the right of sex workers to life, liberty and security of the person.
“The legislation cannot stand in the path of commercial sex workers who take steps to protect themselves and their health from violence or harm... The scheme created by Parliament, I find, does exactly that: grossly limits or prevents sex workers from taking steps to protect their health and safety. And in so doing, makes the allowed activity more dangerous.”
Carlos Rippell, the lawyer who represented the applicant in the constitutional challenge said the court’s decision “will save lives.”
“These laws endangered the lives of some of the most vulnerable members of society by preventing sex workers from taking measures that increase their safety,” he said.
The decision was welcomed by the Canadian Alliance for Sex Work Law Reform , which launched their own constitutional challenge of the entire act last month.
“It’s really important that the courts recognize these laws have an impact on sex workers,” said Jenn Clamen, national co-ordinator for the alliance. The laws force sex workers to work in isolation, and makes them more vulnerable to violence and criminalization, she said.
But, she stressed, the ruling is just a partial victory.
It does not address other provisions in the act including banning the purchase of sex and communication for the purpose of purchasing sex, which makes it difficult for sex workers to screen clients who are trying to avoid detection, she said. The law also contributes to the stigmatization of sex workers and can encourage them to be seen as targets for violence, she said.
This is the second time in Ontario that a judge has partially struck down the Criminal Code changes brought in the , which was passed by the Conservative government in 2014 after a Supreme Court of Canada decision in R v Bedford found sex workers were being harmed by previous legislation. The act is based on the Nordic model, which allows the sale of sex but criminalizes the purchase of sex, and is intended to “protect human dignity and the equality of all Canadians by discouraging prostitution.”
The Supreme Court gave Parliament a year to come up with new legislation. The Crown in the current case similarly argued that Sutherland should give Parliament a year before declaring the law invalid.
The Crown argued that public safety would be endangered through the continued exploitation of vulnerable commercial sex workers, and that obtaining convictions against purchasers of sexual services would be more difficult.
Sutherland disagreed that it would make convictions more difficult, and found that continuing to prosecute a constitutionally invalid law for a year would not be in keeping with the principles of the Charter of Rights and Freedoms.
“The fact that the judge says, I’m not going to delay for 12 months says something about the harms that the judge thinks is being caused every day by these laws,” said Kyle Kirkup, an assistant law professor at the University of Ottawa.
The government was warned by several experts at the time that the new law was constitutionally suspect but they pushed it through, Kirkup said. And now, six years later, the legislation is being found to violate the Charter rights of sex workers in a similar way to the decision in the Bedford case.
“My view is that you start to want the government to intervene to perhaps enact a new framework for this issue,” he said.
The ruling leaves the state of the law in limbo in Ontario, and the Crown has not yet said if they will appeal the ruling.
And though these sections of the law have been declared invalid, it remains unclear if they continue to be enforced and prosecuted, Clamen said.
“We don’t know what is going to happen,” she said, but she is hoping the government is paying attention and will step in before the legal fight goes back to the country’s top court.
Criminal defence lawyer Marianne Salih said the decision can be used by other individuals charged with these offences to prevent their prosecution, though the issues can be relitigated by the Crown before another judge.
However, she said she hopes the decision will be carefully looked at by policymakers.
“With this decision, it is hoped that any future policy in this area will be guided by actual evidence,” Salih said.
While supporters of the current legislation have said such rulings amount to “ protecting pimps ,” human trafficking laws remain in effect. The provisions that were struck down also continue to apply in relation to minors.