Alyshah Hasham
Courts Reporter

Controversial Harper-era sex work laws are constitutional, Ontario Court of Appeal rules

The federal law, which in part bans the sex work advertising, has been criticized as making it less safe to be a sex worker. On Thursday, Ontario's top court rejected that argument.

Three criminal offences a Superior Court judge said put sex workers at risk of harm have been found constitutional by the Ontario Court of Appeal.

Last spring Superior Court Justice Phillip Sutherland ruled that the legal provisions, which prohibit anyone from obtaining a financial or material benefit from selling sex other than a sex worker; the procuring, recruitment and influencing of a sex worker; and the advertising of sex work, were unconstitutional and immediately not in effect. That ruling was soon followed by opposing decisions from other judges upholding the laws.

The resulting legal limbo and confusion for law enforcement about whether investigations could be conducted and charges laid under those provisions prompted the Court of Appeal to expedite the Crown's appeal of Sutherland's decision.

In a decision released Thursday, the province's top court ruled that the provisions do not infringe on the charter rights to life, liberty or security of sex workers. Under the law, sex workers are permitted to work co-operatively, to provide advice to someone who already decided to pursue sex work, and are not prevented from "communicating frankly and in a detailed manner before an in-person encounter," the decision said.

The offences are also in line with the intent of the Protection of Communities and Exploited Persons Act, brought in by the Harper government in 2014 following the Supreme Court of Canada's landmark decision in Canada v. Bedford. The law was intended to reduce demand for prostitution by discouraging entry into it, deterring participation in it and ultimately abolishing it, while also allowing some "safety-enhancing measures" for sex workers including reporting violence without fear of prosecution, the court found.

(Trudeau has said he would revisit the legislation, which has been criticized for continuing to put sex workers at risk. The Standing Committee on Justice and Human Rights is now conducting a review and hearing testimony from witnesses).

Several parts of the legislation, including the provision banning purchasing sex, are being separately challenged in court by the Canadian Alliance for Sex Work Law Reform, a coalition of several groups, who also intervened on this appeal.

The court's decision was "very disappointing," both for deferring to the government position on sex work as inherently exploitative and harmful to communities, equality and human dignity without evidence, and for minimizing the harms the provisions create for sex workers, said Sandra Ka Hon Chu, co-executive director of the HIV Legal Network, a member group of the Canadian Alliance for Sex Work Law Reform.

Chu said the decision did not address the practical realities of sex workers working together or how third parties, such as translators, help sex workers in a non-exploitative way but still face criminalization under the material benefits provision.

Though the court reviewed the expert evidence of researcher Chris Atchison about the safety risks, the judges were not convinced that the harms outweighed the benefits of the specific laws at issue.

While Atchison said sex workers use vague or coded terms in advertising and subsequent communication with clients, which can put them at risk of violence later on, the court said this isn't due to the advertising ban but because clients are worried about being prosecuted for purchasing sex — an offence that was not being challenged in this appeal.

The legal provision does not prevent providers of sexual services from communicating with prospective clients before an in-person encounter by text, email or phone and gives them immunity from prosecution for doing so, the court said.

"In any event, any impairment of security of the person because … providers of sexual services for consideration use vaguer language in their advertisements is, on this record, trivial," the court said.

Carlos Rippell, who represented the respondent, identified as N.S. due to a publication ban, along with lawyer Marianne Salih said they are disappointed with the decision, including that the court did not agree that the provisions placed sex workers at serious risk of harm.

The Court of Appeal also ordered N.S.'s case to be sent back for a new trial, overturning their acquittals on charges linked to the three offences.

Rippell said they will be considering seeking leave to appeal the decision to the Supreme Court of Canada,. There are other challenges to the legislation ongoing across the country including in Alberta, he noted, which might make it more likely the country's top court weighs in if Parliament does not take action first after hearing from the Justice committee.

"We would urge the committee to recommend repealing (the legislation)," said Chu. "Sex workers should not be forced to go to court to protect their health, autonomy and safety."

Meanwhile the Court of Appeal decision, however, makes the law clear in Ontario for now and ends the legal confusion of the past year, Rippell said.

"There is no ambiguity. The law in Ontario is that people can be investigated, prosecuted and sentenced for these offences. There is absolute certainty from the highest court in Ontario," Rippell said.