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Disappointment, joy after Ontario court dismisses sex workers’ Charter challenge

There were expressions of disappointment and joy Monday after Ontario’s Superior Court dismissed a Charter challenge launched by an alliance of groups advocating for the rights of sex workers.

The court ruled that Canada’s criminal laws on sex work are constitutional.

The Canadian Alliance for Sex Work Law Reform (CASWLR), which brought the challenge, said it was “deeply, deeply disappointed” by the decision, while Parents Against Child Trafficking said it was “a fantastic” ruling.

Justice Robert Goldstein’s decision says the Protection of Communities and Exploited Persons Act, brought in by the former Conservative government, balances prohibition of “the most exploitative aspects of the sex trade” while 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.

CASWLR’s national coordinator Jenn Clamen called the ruling “extremely dismissive of sex workers’ realities and the concerns that were raised.”

Clamen told CBC Toronto that “there’s a lot of incorrect information written into the decision that eventually, overtime, with our deeper analysis, we’ll be able to deconstruct.”

She says the suggestion that sex workers don’t know the laws that impact them is “probably most egregious.”

In particular, Clamen says the ruling is “dismissive of the evidence where sex workers, particularly migrant sex workers and Black sex workers submitted evidence to demonstrate how sex workers are being arrested under third-party laws.”

Jenn Clamen, national coordinator of the Canadian Alliance for Sex Work Law Reform.
Jenn Clamen, national coordinator of the Canadian Alliance for Sex Work Law Reform, says they will likely appeal the decision. (CBC)

CASWLR 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.

Monica Forrester, an outreach coordinator at Maggie’s Sex Work Action Project and a plaintiff in the case, said the ruling is “very disappointing” but she’s not surprised by it.

She said the applicants knew going into the challenge that there would be obstacles, but were also hoping that the court would look at some of the revisions in the laws currently that are affecting sex workers and the work that they do.

“This is not over,” Forrester said. “We’re going to continue to fight for the decriminalization of sex work and to look at a push on why these laws make it unsafe for sex workers.”

Monica Forrester
Monica Forrester, an outreach co-ordinator at Maggie’s Sex Work Action Project, was a plaintiff in the case. (CBC)

Meanwhile, the CEO of Parents Against Child Trafficking, called the ruling “fantastic.”

Robert Vallée said his group provided testimonials and affidavits from victims during the court hearings to clearly indicate that sex work is “a violent industry” that is “extremely exploitative.”

Vallée said the ruling validates a model of managing prostitution that is in effect in several countries, including Finland, Sweden, Ireland, Northern Ireland, France and Israel.

The Protection of Communities and Exploited Persons Act was passed in 2014, about a year after the Supreme Court of Canada struck down previous anti-prostitution laws after lawyers argued existing provisions were disproportionate, overbroad and put sex workers at risk of harm.

Even though prostitution was legal under the previous laws, 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, as well as making communicating to buy sexual services a criminal offence.

Sex workers and their supporters gather outside the Ontario Superior Court during the launch of their constitutional challenge to Canada's sex work laws, on Monday, Oct. 3, 2022.
Justice Robert Goldstein’s decision says the Protection of Communities and Exploited Persons Act, brought in by the former Conservative government, balances prohibition of ‘the most exploitative aspects of the sex trade’ while protecting sex workers from legal prosecution. (Tijana Martin/The Canadian Press)

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

The Canadian Alliance for Sex Work Law Reform 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.

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

Reform Alliance likely to appeal ruling

Meanwhile, Clamen says, “This fight is not over.”

CASWLR is probably going to appeal the decision, she said. 

“Sex workers have been fighting for rights for over 50, 60 years in this country alone and are extremely resilient people are not easily stopped in this fight to have their rights recognized.”

Ellie Ade Kur, executive director of Maggie’s Toronto Sex Worker Action Project, was a fact witness in the case.

Ellie Ade Kur
Ellie Ade Kur, executive director of Maggie’s Toronto Sex Worker Action Project, says the ruling ‘completely dismisses a lot of the concerns that sex workers have raised.’ (Paul Borkwood/CBC)

She said the ruling “completely dismisses a lot of the concerns that sex workers have raised around the reality of what criminalizing sex work does” and how it impacts their work and their lives. 

“One of the larger things we’ve been talking a lot about is how a lot of the the laws criminalizing sex work are largely framed as meant ‘to protect’ many of us, when in reality many sex workers are actually subject to prosecution under criminal laws around sex work,” she told CBC Toronto.

“A lot of these things prevent us from being able to work in groups, to implement safety mechanisms, to be able to engage third parties who are able to support with screening around personal protection and security and shape the relationship between our communities and the police more broadly.”

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.

With this ruling, the Ontario Superior Court has failed to protect the equality rights of sex workers, said The Women’s Legal Education and Action Fund (LEAF), a national not-for-profit that works to advance the equality rights of women, girls, trans, and non-binary people in Canada.

“As a gender equality organization, we are deeply disappointed that the court failed to recognize how the laws criminalizing sex work violate the equality rights of sex workers,” said Pam Hrick, LEAF’s executive director and general counsel. 

“This is especially true for those at higher risk of criminalization, such as Black, Indigenous, trans and/or migrant sex workers.” 

In dismissing every aspect of the Charter challenge, the court declined to find that sex work is an “analogous ground” of discrimination under section 15 of the Charter, LEAF said in a news release.

A spokesperson for Minister of Justice and Attorney General of Canada Arif Virani said the federal government will always work to ensure that the country’s criminal laws effectively meet their objectives, keep all Canadians safe and are consistent with the Charter of Rights and Freedoms.   

“Minister Virani is carefully reviewing the decision,” Chantalle Aubertin wrote in an email to CBC News.

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