ARPA’s Latest Legal File – Canadian Alliance for Sex Work Law Reform
What is some background on ARPA’s involvement with prostitution?
Nine years ago, Canadian law underwent a major change in how it dealt with prostitution. Canada’s old laws classified prostitution as a public “nuisance,” but prostitution itself was not illegal, instead it was prostitution-adjacent activities that were illegal. It was illegal to have anything to do with running a brothel, live on the proceeds of prostitution, and communicate in public to facilitate prostitution. Three women who were or had been working in the sex trade challenged the laws. In Canada (AG) v Bedford, the Supreme Court ruled in favour of these women and declared that Canada’s laws on prostitution were unconstitutional. After the decision, Parliament passed a new set of very different laws entitled the Protection of Exploited Communities and Persons Act (PCEPA). The new law criminalized prostitution but provided legal immunity for the people who provided sexual services, essentially trying to target those who purchase sexual services and those who profit from selling the bodies of others (traffickers or pimps, for example). This means that any time someone purchases sex for money it is illegal, but, by law, the prostitute will not be prosecuted.
This approach to addressing prostitution is known as the “Nordic model,” based on its initial adoption and evident success in Nordic countries. This law is one that ARPA Canada advocated for even before the Supreme Court struck down Canada’s old prostitution laws. Those who provide sexual services, who are overwhelmingly women, experience a wide variety of harms including 1) sexual harassment that would be legally actionable in any other job setting, 2) verbal abuse, 3) physical assault, and 4) rape, you can read about these statistics in ARPA’s policy report here. These harms are overwhelmingly perpetrated by men who purchase sexual services or those who run a business by managing several prostitutes, i.e. pimps. Given these realities, a Nordic model is the best way to care for the vulnerable and bring justice to the oppressors.
Why is this back up for discussion?
The “Canadian Alliance for Sex Work Law Reform,” a group of advocates that includes one of the original applicants who challenged the laws in Bedford, is taking a second shot at challenging Canada’s prostitution laws. Their basic argument is that PCEPA is more unconstitutional than the previous bill because it makes it more difficult for prostitutes to avail themselves of several safety-enhancing measures that the Supreme Court identified as being necessary for prostitutes – working indoors, being able to screen their clients, etc. The Alliance argued that PCEPA violates prostitutes’ rights to life, liberty, and security of the person, and their right to equality, freedom of expression, and freedom of association.
ARPA was there in court – what did we say?
Here’s a simple breakdown of what ARPA argued in court:
- No matter what evidence is introduced in this case, the fact remains that Canadian courts at every level have consistently ruled that prostitution is a dangerous activity that harms women.
- To facilitate equality, the Constitution allows governments to make laws that have the express purpose of improving the situation of certain people or groups — and PCEPA does just that.
- In the freedom of expression context, there is a longstanding recognition that sexually explicit “expression” can lead to harm, especially against women and children.
- PCEPA was drafted specifically with freedom of expression in mind, and that is clear from what it makes illegal and what it does not.
- Our right to freedom of association has a particular purpose, which is people gathering to advance their conception of society or protect what they see as their rights. Freedom of association does not cover anything and everything we might do collectively.
A few observations about how the hearing went
One of the primary concerns that ARPA had before the case started was that the lawyers for the government would feel political pressure from the top not to argue their case too strenuously because the political party currently in government, the Liberal Party, promised the Alliance in 2015 that they would repeal PCEPA.
Thankfully, this was not the case. Lawyers from both levels of government, federal and provincial, put up a very vigorous defence of the PCEPA. The lawyer representing Ontario did a particularly good job in our opinion. She is the lead prosecutor of Ontario’s task force that focuses on Sexual Violence and Human Trafficking, which meant she brought an excellent perspective to the court as someone who gets to see daily how the law works on the ground.
Another observation from the courtroom is about the other interveners — the ones who intervened on the side of the Alliance. An intervener’s job is to bring a unique perspective to the court, but also to bring their legal expertise. Many of the interveners focused heavily on their organizations but their submissions were very light on legal content. Their attitude seemed to be that because of their identity, they deserved a particular legal result. On the one hand, it serves as an illustration of how an excessive focus on identity can cloud good decision-making. On the other hand, it serves as a reminder to ARPA not to shy away from presenting an explicitly biblical point of view with expertise.
What happens next?
The judge has reserved his decision, which means he will take time to write it instead of making an oral decision at the end of the week-long hearing. The last time there was a constitutional challenge to prostitution laws, the judge took an entire year to write the decision because of the immense amount of evidence filed. This case is no different; the record of evidence filed by the Alliance and the Government covers 157 exhibits. Since most of the exhibits are quite lengthy, the evidence page total is roughly 13,000. Comments from the judge lead us to believe that we might see this decision released in 6-9 months. If the judge rules that PCEPA is constitutional, there is a very good chance that the Alliance will appeal — their goal is the complete decriminalization of prostitution, and they appear ready and willing to take this case up to the Supreme Court.
If the judge rules that PCEPA, or parts of it, are unconstitutional, our biggest worry is that the federal government will do the same thing that it did in the context of euthanasia after a judge in the Quebec Superior Court ruled that the MAiD regulations were unconstitutional. Instead of appealing the decision, Attorney General David Lametti simply proceeded with re-writing the legislation. The consequence of that decision is that Canada is in a dire situation as we move ever closer to unfettered euthanasia. Hopefully, if PCEPA is declared unconstitutional the government will have the confidence to bring an appeal and allow the Nordic model the benefit of the doubt. We will keep you posted as this case develops.
