With No Reference in Ontario, Sex Workers Must Look to Litigation Again

When I heard yesterday’s announcement that the Ontario Attorney General found Canada’s new prostitution laws “not clearly unconstitutional,” I almost thought it was an April Fool’s Day joke. 

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Using the law as a catalyst for positive social change, Pivot Legal Society works to improve the lives of marginalized communities.

Ontario Premier Kathleen Wynne said publicly in December that she had “grave concerns” about the constitutionality of the Protection of Communities and Exploited Persons Act, which had just come into force. These concerns were not surprising; PCEPA replicates the harms of the Criminal Code provisions it replaced.

Premier Wynne requested that Attorney General Madeleine Meilleur review the PCEPA to determine whether it should be the subject of a constitutional reference. News yesterday of Ontario’s decision not to take this route makes it more certain that sex workers and their allies will have to pursue litigation to challenge the new laws.

Litigation would have been less of a certainty if the reference had gone ahead. Constitutional references are procedures that can make litigation brought by private individuals unnecessary. They allow governments to ask the courts directly whether proposed or existing laws meet constitutional muster, avoiding the time and expense of a full trial. While Canada has used references for guidance on some of our most contentious legal issues (including the proposed appointment of Marc Nadon to the Supreme Court and the legality of same sex marriage), they are still uncommon. With the exception of B.C., in most provinces references must be heard by the appeal courts; Ontario’s reference would have gone to the Ontario Court of Appeal.

If the Ontario reference had proceeded, Pivot Legal Society would have applied to intervene to ensure that sex workers’ voices were heard by the Court and to argue that the new law puts them at risk of the same harms as the provisions struck down in Canada (Attorney General) v. Bedford.

Even so, the Ontario Court of Appeal may not have had a robust evidentiary record of the law’s impacts like the one before the Supreme Court of Canada in Bedford. The intentionally streamlined processes in reference cases are similar to appeals, in that they restrict what can be put before the court for consideration. In most cases, lawyers for intervenors can present their written arguments and evidence, but they cannot call or cross-examine witnesses. Because of this, it was uncertain how much space would be available for sex workers’ voices and evidence in a reference, despite the reality that sex workers are most directly impacted by the law. It is worth noting that the Attorney General did not consult with sex workers’ or human rights organizations while drafting her opinion, even though many sex workers’ organizations were eager to provide their expertise and information.

Pivot Legal Society does not agree with the Attorney General’s conclusion on PCEPA. We believe the laws are clearly unconstitutional: they recreate the harms of the old Criminal Code provisions in a different format, and it is our view that they violate the security of the person, liberty, expression, and equality rights of sex workers.

The Supreme Court of Canada in Bedford struck down the provisions that outlawed communication for the purpose of prostitution, the keeping of a bawdy house (any indoor establishment offering sexual services), and living off the avails of prostitution. The Court found the laws forced sex workers into unsafe outdoor locations and prevented them from engaging in safety precautions, violating their rights to security of the person under the Charter of Rights and Freedoms. The Court also found that working indoors could enhance sex workers’ safety.

The PCEPA makes the purchase of sex illegal. It also modifies the communication provision only marginally, making communication to purchase sexual services illegal in any place (private or public), and communication to sell sexual services illegal if it happens near a daycare, school, or playground. As a result of these provisions, sex workers will still face the same pressure to rush or forego screening clients. The PCEPA still makes it virtually impossible for sex workers to work indoors by banning the purchase of sexual services, advertising of sexual services, and material benefits to third parties, including (in many or most cases) drivers, receptionists, and bodyguards. Like the old provisions, the new provisions will make all sex workers reticent to access police services if they face violence.

Not only does the PCEPA reproduce the Charter violations we saw before, we believe that it contravenes Charter guarantees of freedom of expression and equality.

Ontario’s decision on a reference means our next steps are becoming clearer. Without a more direct course to striking down this legislation, sex workers are once again faced with the prospect of heading to court.

Over the coming months, we will be meeting with our clients, Sex Workers United Against Violence, and other sex workers' organizations across Canada to hear their concerns and strategize about the best way to bring the next constitutional challenge forward. The complexity of the new law means a great many decisions will need to be made. What know now is that sex workers are determined to fight the PCEPA and to fight for their rights, even if that means having to go to the Supreme Court of Canada once again in order to have those rights protected.