Are Canada's sex work laws unconstitutional?

Why that open question has thrown Ontario law enforcement into chaos

Conflicting rulings on the constitutionality of three criminal offenses prohibiting sex workers from working together, advertising on third-party sites, and hiring security have driven Ontario courts into chaos and stalled police investigations into human trafficking, prompting an urgent hearing in the province's superior court on Friday.

The Crown is asking the Ontario Court of Appeal to "reduce uncertainty and confusion" by temporarily suspending a Superior Court ruling from April. R. against NS, which stated that the law "has no force or effect" because, although the government allows commercial sex work to continue, the law requires sex workers to work in unsafe conditions.

The Crown argues that a stay of the decision would leave the crimes in effect until next year, when the court can hear the full appeal as to whether they are constitutional. A suspension would allow police to continue investigating and charging people in the meantime, the Crown argues.

There are also at least eight pending constitutional challenges underway on the same issue in courts across the province, according to the Crown's filing.

At least three other Superior Court judges they have disagreed with NS's ruling, finding it wrongly concluded that Parliament legalized the sale of sexual services in 2014 with legislation enacted to replace previous laws struck down by the Supreme Court of Canada.

They cite the decision of the Court of Appeal in R. v. Gallone, which establishes that Parliament outlawed both the purchase and sale of sexual services, and only granted procedural immunity to those who sell their own sexual services "recognizing that they are victims of an exploitative industry, that they need support and assistance."

Meanwhile, some Ontario police forces say they are halting or delaying investigations related to the three crimes, while others continue to press charges, according to court documents.

Det.-Sgt. Andy Taylor, head of the OPP's human trafficking unit, said they have not filed any charges for the three crimes since June 2021 and that around 100 investigations related to advertising crimes have stalled. And while OPP officers may ask a judge to sign search warrants or production orders to investigate all three crimes, the unit will not do so until there is a ruling from the Court of Appeal.

Taylor testified that there are some cases in which online advertisements indicate possible exploitation, but, without a warrant to appear under the offense of publicity, the police have not been able to obtain sufficient evidence to proceed with an investigation of human trafficking.

He also testified that they have had to use a "slower" path to investigate two or three cases of potentially exploitative recruitment for sex work, which has delayed investigations.

The head of the Toronto Police Service's human trafficking unit testified that they have filed around 10 charges for the three crimes since NS's ruling, but are considering ways to adapt their investigative techniques to continue without them.. They are also postponing the attempt to obtain search warrants or production orders for those crimes until there is a ruling from the province's superior court.

In the Peel and York regions, it is unclear whether charges have continued to be imposed in those sections.

The head of the Durham Regional Police human trafficking unit said they are awaiting the Court of Appeals ruling before changing their practices and that they can still charge people for such crimes at the Crown's discretion. He stated that the police frequently rely on all three crimes to "push" investigations into human trafficking.

The Crown argues that police investigations will continue to be hampered if a stay is not granted.

Meanwhile, Carlos Rippell and Marianne Salih, the attorneys representing NS, argue that police evidence shows that they can still effectively investigate human trafficking and cases involving minors without relying on all three crimes, including through undercover operations, victim service workers, and relationship building with sex workers.

"Investigating crimes is always easier the more power the police have. The real question is whether law enforcement can adapt and continue to effectively investigate human trafficking. The evidence shows that they can, and already are, "they wrote in their presentation.

They oppose a suspension, arguing that the crimes continue to harm sex workers and lead to people being charged under a law that can be declared unconstitutional within months. They say the court can clarify how the police should proceed in the meantime for crimes that are deemed unconstitutional, and that individual judges can continue to determine how to proceed in the cases before them.