The Supreme Court of Canada affirmed on Thursday the constitutionality of sex work-related offenses. The court held that the impugned offenses do not infringe the right to security of sex workers under Section 7 of the Canadian Charter of Rights and Freedoms.
The appeal concerned Criminal Code sections 286.2 and 286.3, which prohibit the procurement of sexual services and the obtainment of benefits from the purchase of sexual services. The court unanimously upheld the constitutionality of the provisions, ruling that they do not infringe the right to security of sex workers. The court reasoned that the offenses do not prevent sex workers from adopting safety measures, including using fixed indoor locations, hiring third-party security service providers or operating in cooperation with other sex workers.
The bench considered the legislative background of the Protection of Communities and Exploited Persons Act. The court found that the provisions aim to reduce the demand for sex work and to protect sex workers from exploitation. When Parliament adopted terms such as “commercial enterprise” and “commodification of sexual activity,” the court concluded that Parliament viewed any third party sharing the profits of another person’s sex work as inherently exploitative and thus undesirable.
The BC Civil Liberties Association previously warned that the distinction between commercial activity and safety-enhancing measures is impractical in protecting the security of sex workers. This is because the law assumes any commercial relationship is exploitative, in effect barring sex workers from engaging third parties for safety measures.
Women’s Legal Education and Action Fund further drew the court’s attention to the fact that women make up a disproportionate portion of sex workers. The group urged the court to consider the discriminatory effect of the provisions based on sex, gender, race and other relevant personal characteristics.
The legal controversy stems from the court’s 2013 ruling in Canada v. Bedford, in which the court struck down several sex work-related offenses. At the time, the court found those offenses, such as the prohibition on “bawdy-houses,” living on avails of prostitution, were disproportionate interference with the right to security.
