Big win as Ontario Court upholds Canada’s prostitution laws
“Men have no right – no moral right, no positive right, no legal right, and certainly no Charter right – to obtain consent to sex or sexual touching by paying a woman or a girl or any other person to get that consent. In fact, at a societal level, when we tolerate that idea, women and girls are objectified, their bodies are commodified, and communities are harmed. It was open to Parliament to end that practice to the greatest extent possible, and Parliament has decided to do so through the PCEPA.” So argued ARPA Canada’s legal counsel in the Ontario Superior Court last October. A group of activists was attempting to get the court to strike down Canada’s prostitution laws, and we were advocating that the laws should be upheld. Nearly a year after that Canadian Alliance for Sex Work Law Reform v. Canada (Attorney General) case, Justice Goldstein has released his 148-page decision upholding the laws as constitutional.
In ARPA’s view, the Protection of Communities and Exploited Persons Act (PCEPA) was the most significant piece of legislation on a social issue passed during the nine years that Stephen Harper was prime minister. We are thankful that the Ontario Superior Court has upheld that law as constitutional. This is a big legal win and cause for celebration. The law mirrors ARPA Canada’s policy recommendations on this issue, turning the attention of the criminal law toward pimps and johns in the sex industry to reduce the demand for commercialized sex.
Justice Goldstein had a mammoth task before him. The application to strike down the law consisted of thousands of pages of evidence in the form of witness affidavits, a dozen expert reports with hundreds of exhibits, thousands of pages of transcripts of cross-examinations, hundreds of pages of written legal arguments from not only the main parties, but also seventeen interveners (including ARPA Canada – you can read our written legal argument here), and four days of oral arguments. The judgement carefully and thoroughly explains the law, other court judgements, the evidence, and the reasons for upholding the law.
Justice Goldstein does an excellent job of distilling the evidence. He carefully explains for a lay reader the inherent biases, gaps, and limitations in much of the research and expert evidence that was tabled. He notes that the two sides on the political/policy debate of whether “sex work” should be decriminalized or criminalized were clearly represented in the courtroom. The debate question: is “sex work” just like regular work, or is it inherently exploitative? The answer: “The question of inherent exploitation is not, however, something that this court can decide. It is simply not a legal or factual question. One’s view of the question of inherent exploitation appears to be dictated by one’s normative perspective. Parliament has chosen a particular normative perspective and it is not for this court to second-guess Parliament in that regard.” (para 40).
ARPA Canada had argued that the animating concern of the prostitution legislation was the protection of vulnerable, marginalized women and girls victimized by pimps and johns. The law was thus designed particularly to protect and defend those victims while trying to eradicate the “sex trade” as much as possible. And so, we are thankful that Justice Goldstein also found that “the attempt by the Applicants to separate sex work and human trafficking is artificial and unrealistic considering the strong evidence to support Parliament’s view that they often go together…” (para 153). He concluded, “I find that there is a clear link between sex work and human trafficking. In fact, there is a considerable body of evidence that many sex workers are manipulated or coerced into sex work or trafficked while in it” (para 179).
Justice Goldstein also takes the time to clarify that the many harms in the sex trade are not because there is a law that prohibits the purchase of sex (as the Applicants argued), but because of the nature of the industry itself.
The main constitutional question was whether the prostitution law which prohibits the purchase of sex violates section 7 of the Charter, which guarantees the right to life, liberty, and security of the person. Justice Goldstein found that, for the most part, the law did not infringe on the right to life, liberty, or security of the person and that there was no causal connection between specific harms suffered by sex workers and the law as written. For a small handful of specific situations, the judge did find that liberty and security of the person were impacted, but in a legitimate way – not in a way that was arbitrary, overbroad, or grossly disproportionate.
The Applicants also argued that certain sections of the law violated freedom of expression and freedom of association (section 2(b) and 2(d) of the Charter) as well as the right to the equal protection and benefit of the law without discrimination (section 15 of the Charter). Justice Goldstein found that some of these sections were not engaged at all (section 2(d) and 15) and that any infringement on free expression was demonstrably justified in a free and democratic society (section 2(b)).
ARPA Canada is delighted with this decision. This decision upholds a just piece of legislation that aligns with biblical principles of care and protection for the most vulnerable and punishment for those who exploit them. Praise God for that!
