(Ontario Superior Court of Justice)
Status: ARPA Canada has made written and oral submissions in court; the case hearing has finished. The judge is now working on writing his decision.
Background: In 2014, Parliament passed criminal laws regarding prostitution that focused on penalizing those seeking to purchase or facilitate prostitution (pimps and johns). The law also gave immunity to those who sell their own sexual services to ensure that any prostituted person could seek the help of law enforcement without fear of prosecution. An activist group called the Canadian Alliance for Sex Work Law Reform is seeking to challenge the constitutionality of the law. Their goal is to make Canadian criminal laws permissive of prostitution.
Our Argument: ARPA Canada argued that the impugned legislation has an ameliorative purpose. That is, the current law is specifically designed to improve the situation of those who are prostituted—who are overwhelmingly women and girls. The applicants challenging the law argued the supposed negative effects of the law fall directly along this gender disparity (men being the vast majority of sex purchasers and women being the vast majority of sex sellers), thereby infringing on the Charter’s section 15 equality guarantee. ARPA Canada argued that the concept of equality in Canadian law includes the idea that the law can act as a tool to increase equality by raising up some at the expense of others. In fact, the text of s. 15(2) of the Charter includes wording saying precisely that very thing.
Given that the women and girls involved in prostitution are having their bodies objectified and commodified and are more at risk for human trafficking, this law is best understood as a “law that has the amelioration of the conditions of disadvantaged individuals disadvantaged because of sex.” ARPA also put forward arguments relating to the freedom of expression and freedom of association elements of this case.
You can read ARPA Canada’s written legal argument soon, and you can read more about ARPA Canada’s approach to prostitution laws here.