On September 18, 2023, Justice Goldstein, of the Ontario Superior Court of Justice (ONSC), issued his long-awaited decision in Canadian Alliance for Sex Work Law Reform v. Attorney General, 2023 ONSC 5197 regarding the constitutional challenges to various provisions within sections 213 and 286 of the Criminal Code brought by the Canadian Alliance for Sex Work Law Reform and individual sex workers (“Alliance”).
As noted in our previous article on this matter, the constitutional challenges targeted Bill C-36, the Protection for Communities and Exploited Persons Act (PCEPA), which immunizes sellers of sex from criminal liability, while criminalizing the purchase of sex (also known as the Nordic Model). The Alliance alleged that various prohibitions within PCEPA violated Charter-protected rights to: free expression; free assembly; life, liberty and security of the person; and equality rights.
Some of the challenges brought by the Alliance were disposed of by the Ontario Court of Appeal’s earlier decision in R. v. N.S., 2022 ONCA 160, which upheld the constitutionality of the clauses prohibiting material benefit from the purchase of sex, procuring others for the purpose of prostitution and advertising prostitution. Justice Goldstein held that he was bound by the Court of Appeal’s decision in R. v. N.S. This left him to rule on the constitutionality of the offences regarding purchasing, stopping traffic and communication.
Ultimately, Justice Goldstein held that none of PCEPA’s prohibitions violate sex workers’ Charter rights to life, liberty, and security of the person under section 7, freedom of association under section 2(d), or equality under section 15. While the offences regarding purchasing, stopping traffic and communication violate the freedom of expression under section 2(b), Justice Goldstein held that those provisions are rationally connected to Parliament’s objective in passing PCEPA. He also found that PCEPA minimally impairs the right to freedom of expression and is proportionate in its “salutary and deleterious” effects.
Miller Thomson’s Gerald Chipeur, KC and Tory Hibbitt, represented one of the intervenors, Defend Dignity, drawing on Defend Dignity’s expertise and experience in supporting survivors of sexual exploitation and helping vulnerable women and underage girls to exit the sex trade.
During the hearing, the lawyers for Defend Dignity argued that the limitations on sex trade imposed by PCEPA are indeed constitutional and essential to Parliament’s objective of protecting vulnerable women and girls by reducing the demand for prostitution. Defend Dignity’s lawyers drew the Court’s attention to the laws of various other jurisdictions, to international treaties and to conventions sharing the objective of the Nordic Model to protect women and children from exploitation and trafficking. The lawyers emphasized the purpose of PCEPA, which is not to legalize prostitution, but to protect women and children from the inherently harmful and exploitative practice of sex trade.
Justice Goldstein made several findings supported by the evidence and legal submissions of Defend Dignity:
- Exploitation and trafficking play a significant role in the sex industry (para. 129);
- The purchasing offence is analogous to other interferences by Parliament with personal choices, such as the prohibition on drinking and driving (para. 384);
- The Nordic Model adopted by Canada is endorsed by other international institutions;
- The fact that other free and democratic societies regard discouraging sex trade as a pressing and substantial objective provides significant support for the conclusion that PCEPA’s objectives are pressing and substantial and that PCEPA is rationally connected to its objective (para. 477);
- PCEPA constitutes a reasonable means of achieving its objective and courts owe Parliament a substantial amount of deference when considering the approach chosen to address a significant harm within society (para. 486).
If you have any questions, please contact a member of the Miller Thomson LLP Administrative & Public Law group.
