Can governments prohibit prostitution? If so, can governments also prohibit third parties from profiting off prostitution, or from encouraging prostitution in various ways, such as by providing a facility in which it takes place?

Last week, the Supreme Court of Canada heard a case that challenges parts of Canada’s criminal law on prostitution. The case is called R. v. Kloubakov. ARPA intervened jointly with the Evangelical Fellowship of Canada (EFC) in this case.

The argument

ARPA’s main argument is that Parliament has the authority to

(a) determine that prostitution is inherently exploitative and merits criminal sanction, and

(b) to determine what forms of third-party participation in prostitution are exploitative.

ARPA and the EFC also argue that exploitation does not necessarily mean lack of consent. Rather, to exploit someone is to take wrongful advantage of them for one’s own gain. Parliament has determined that commodifying people’s bodies for others’ sexual pleasure is inherently exploitative. It therefore also makes sense for Parliament to prohibit third parties from promoting, facilitating, and profiting from such exploitation.

We believe this line of argument is crucially important because the appellants in Kloubakov contend that where prostitution is consensual, and where third parties are not coercive or manipulative, there is no exploitation and it should not be illegal. In other words, they do not see prostitution itself as exploitative.  The appellants ask the Court the adopt their normative view over and against Parliament’s current view.

This is the first time a challenge to Canada’s prostitution legislation, enacted in 2014, has made it to the Supreme Court of Canada. Thankfully, the Ontario Court of Appeal has twice rejected challenges to this law. The Alberta Court of Appeal in Kloubakov upheld the law as well. But the Supreme Court could overturn both courts if it so decides.

Canada’s prostitution law explained

In 2014, Canada adopted what is known as the Nordic Model of prostitution legislation, so called because Nordic countries (Sweden in 1999, Norway and Iceland in 2009) adopted it first. Canada, France, Israel, Ireland, and Northern Ireland followed suit in the last decade. It’s also known as the End Demand model, since it penalizes those who purchase sex rather than penalizing prostitutes. Canada’s law is called the Protection of Communities and Exploited Persons Act, or PCEPA.

PCEPA makes it an offence to:

• purchase sexual services
• advertise an offer to provide sexual services
• obtain or derive a material benefit from the prostitution of another
• procure or induce a person to provide sexual services for sale, or conceal or harbour a person who offers sexual services for sale, or exercise control over the movements of that person for the purpose of facilitating prostitution (so, knowingly renting a hotel room to a prostitute is not an offence unless the hotel owner’s intended purpose in doing so is to facilitate prostitution).

PCEPA grants immunity from prosecution to prostituted persons, provided the offence involves their own prostitution. So, for example, a prostitute cannot be prosecuted for advertising her own sexual services for sale. Likewise, a prostitute cannot be prosecuted as a party to the purchasing offence, though she technically is. Any participation in these offences, including by prostitutes, undermines PCEPA’s goal of abolishing prostitution. But Parliament has recognized that women in prostitution are already victimized. Thus, the immunity approach avoids compounding their victimization without formally condoning the sale of sex.

The material benefit offence has certain exceptions where a benefit is obtained in non-exploitative circumstances, such as where a prostitute supports a family member, or pays her portion of the rent (a benefit to her roommates). Other exceptions even allow a prostitute to pay a driver, bookkeeper, or security guard for services directly tied to her prostitution. However, that exception does not apply where a person charges exorbitant prices, or exercises control over the prostitute, or works for a commercial enterprise that offers sexual services for sale (i.e. a brothel, escort service, or massage parlour or other entity designed to generate profit by selling sex). The idea is to allow women who remain in prostitution (despite its illegality) to take safety-enhancing measures, while preventing third parties from establishing deep commercial ties to prostitution, which only incentivizes exploitation.

The disturbing facts of the Kloubakov case

The appellants in Kloubakov challenged both the material benefit prohibition and the procuring / harbouring / concealing offence as being too broad, because they claim that both provisions prevent prostitutes from adopting meaningful safety measures. The appellants were convicted of violating both offences. But they also go boldly beyond this in their appeal, calling into question the Nordic model itself. They claim the government has no business prohibiting the sale of sex, provided it is consensual.

The appellants in Kloubakov (Mr. Kloubakov and Mr. Moustaine) worked for a sex-trafficking operation in which women were moved frequently between major Canadian cities to provide sex for money, almost all of which was kept by the men running this racket. Thankfully, the Calgary Police and Québec Anti-Trafficking Task Force investigated and laid human trafficking and prostitution-related charges against five men. The owners were convicted of trafficking. The appellants in Kloubakov worked for them and were convicted of the material benefit and procuring offences under PCEPA.

The prostituted women involved had no control over their work. Male buyers negotiated with the men who controlled the operation regarding what sex acts would be done for what price. All the money was paid directly to the men in control, who were also sometimes violent toward the prostituted women in their commercial operation. The appellants in Kloubakov were not controlling the operation, but they were knowing employees of a criminal enterprise that was controlling and selling women.

Despite this background, the appellants’ entire appeal is framed around the rights and interests of prostituted persons, which they claim are undermined by the material benefit and procuring prohibitions. Should the Supreme Court agree and find these prohibitions to be unconstitutional, these men will walk free, since they cannot be convicted of an unconstitutional offence.

Last week’s Court hearing

The two-day court hearing last week was contentious, with plenty of challenging questions from the Justices for both sides.

The appellants and some interveners contended that the best thing for prostitutes (“sex workers” is the term they used) is to work for a non-exploitative commercial enterprise. Never mind that the enterprise that Kloubakov and Moustaine worked for was plainly exploitative by anyone’s definition of the term. The issue, they contend, is that the law is unconstitutional because it is too restrictive of prostitutes’ freedom to use safety-enhancing measures, like hired security, drivers, and fixed locations. They also argued that engaging in prostitution is a personal choice that the law should not interfere with, except to prevent someone from being coerced into it.

The Respondent (Crown) and three interveners – ARPA and EFC, Christian Legal Fellowship, and Vancouver Rape Relief Society – argued that there is no right to engage in prostitution, or to purchase a prostitute’s services. Freely choosing a sexual partner is one thing, but there is and should be no legal precedent for a right to pay or get paid for sex. As for prostitutes’ safety, PCEPA’s primary objective is to make prostitutes and broader society safe from prostitution, not safe for it. Of course, PCEPA also recognized that not everyone will exit prostitution right away, and so some limited safety-enhancing measures are still permitted.

The appellants and several interveners argued that PCEPA is consequently internally incoherent, since it aims at safety for prostitutes but also at abolishing prostitution. They claimed the Court must strike down the law if the goal of abolishing prostitution undermines the goal of protecting prostitutes’ safety. ARPA and EFC, in response, argued that the appellants challenge is not to the provisions permitting safety measures, but to the prohibitions on third-party profiting. There is no rule that a prohibition must be maximally broad or severe. Just because Parliament moderated its reach and severity does not mean its policy is contradictory. It just means this is a complex policy issue with many factors to consider.

The appellants also tried to draw a contrast between the Court’s ruling in Bedford (2013) and Parliament’s policy in PCEPA (2014). Critics say PCEPA brings back provisions very similar to those the Supreme Court struck down in Bedford, namely the prohibitions against what used to be called “living on the avails” of prostitution and operating a bawdy house (brothel).  To some extent, that is true. But those provisions were part of a very different policy framework. At that time, prostitution itself was not illegal. The Court in Bedford found that Parliament treated prostitution itself as a nuisance but not a crime, and so the prohibitions on prostitution-related activities were intended to keep prostitution out of public view.

The Respondents and some interveners argued that it would be wrong to read Bedford as dictating Parliament’s future choice of a basic policy framework. Thankfully, the Supreme Court Justices seemed to accept this point. As the Ontario Court of Appeal recognized, “[PCEPA] represent[s] a fundamental shift from the previous view of prostitution as a nuisance toward the conceptualization of prostitution as a form of sexual exploitation.” Thus, the lynchpin of PCEPA is the prohibition on purchasing sexual services. As explained above, PCEPA also prohibits deriving a material benefit from another person’s prostitution. In other words, it prohibits third parties from exploiting the prostitute’s exploitation.

However, the Crown struggled to give clear answers on the precise scope of the material benefit prohibition and the exceptions to it, which seemed to be a concern to the Justices. Could several prostitutes together hire a manager? When does a manager become a pimp? When he gets paid more than a fair wage? When he takes a portion of the profit? Or can an organization provide a facility for prostitution to take place, not to profit from it, but to try to keep prostitutes safe? Would that be “harbouring” a prostitute for the purpose of facilitating the purchase of sex? Arguably not.

Anticipated outcome

We do not expect the Court to strike a fatal blow to PCEPA in deciding this case. The case is only indirectly about the lynchpin of the Nordic model – namely, prohibiting the purchase of sex. The hearing also seemed to go fairly well for the Crown and for interveners who support PCEPA.

We’ll probably have to wait at least a few months to find out, but we think there’s a decent likelihood that the Court will uphold the law and provide clarity on how it should be interpreted – an important function of appellate courts. But the Court may conclude that the provisions cannot provide sufficiently clear guidance to prostitutes and non-malevolent third parties (as rare as they are) regarding what is (il)legal, which may mean Parliament will have to try to fix the provisions related to third parties.

Takeaways

Please pray for wisdom for the Justices and for a good and just outcome in this case.

Also, while you cannot write to the Supreme Court Justices about a case before them, there is something you can ask your MP to do: to call for funding to be reinstated for initiatives that help people escape from prostitution. When PCEPA was enacted in 2014, Canada’s government included $20 million to support people seeking to exit prostitution. The Measures to Address Prostitution Initiative indicates that some people successfully left the sex trade. But the Liberal government discontinued funding for that program. Not only that, our current government has also funded groups advocating to legalize prostitution. It seems the Liberal government hopes the Supreme Court will do it for them. We pray they’re wrong.

For more information, you can check out ARPA’s policy report and associated recommendations on prostitution here.