The Ontario Court of Appeal will soon decide whether three provisions of the Harper government’s sex work legislation are unconstitutional to compel sex workers to operate in unsafe conditions.
In a court hearing on Friday, the Crown defended the legislation before a three-judge panel, arguing that the crimes further Parliament’s goal of reducing demand and ultimately eliminating sex work.
The three offenses in question prohibit any person from obtaining an economic or material benefit from the sale of sex other than a sex worker; the hiring, hiring and influence of a sex worker; and the publicity of sex work.
Earlier this year, Superior Court Judge Phillip Sutherland declared all three crimes unconstitutional under Section 7 of the Charter of Rights and Freedoms, which protects the right to life, liberty and security of person, because while Parliament effectively allows sex work to continue, the crimes leave sex workers unable to take steps to reduce the risk of violence.
It found the crimes to be too broad and vague, preventing sex workers from working together or hiring security or drivers. It also found that the ad ban, which means that ad platforms can be prosecuted, means that sex workers have to advertise surreptitiously or in code. This makes it more difficult for sex workers to clearly state what services they provide, leading to conflict with clients later on.
The ruling, and subsequent decisions by other judges who deemed the provisions constitutional, left prosecutions and police investigations in Ontario in chaos. Last month, the Court of Appeal temporarily stayed Sutherland’s ruling until the appeal could be expedited.
On Friday, the Crown argued that Sutherland wrongly found that Parliament effectively allows sex work and therefore its reasoning is fundamentally flawed.
Under current law, sex work is considered illegal and inherently exploitative, and all three provisions are intended to further the goal of reducing demand and ultimately abolishing it, argued Crown attorney Deborah Krick.
However, people who sell sex are immune from prosecution for doing so because they are viewed as victims and are allowed to take steps to protect themselves as long as those relationships are not coercive or exploitative, he said.
Lawyers representing respondents and sex workers argued that there is confusion about what constitutes a non-exploitative relationship, in part because, under the law, sex work is considered inherently exploitative.
The Crown held that the ban on advertising does not prevent sex workers from communicating with clients, adding that many of the websites that host sex worker advertisements are located outside of Canada and therefore cannot be prosecuted. .
It is up to Parliament to determine whether sex work is inherently exploitative and the question of whether it should be illegal to sell sex is not being discussed, the Crown said.
The Crown argued that Section 7 does not protect the right to engage in illegal activities, but attorney Marianne Salih, who represents the defendant, argued that the focus on whether sex work is illegal or permitted is a “red herring.”
Parliament cannot make an immunized activity more dangerous, especially when the reason it granted immunity to sex workers is to protect some of the most vulnerable and marginalized people, she argued.
The eradication of sex work, which Parliament recognizes is unlikely, is not intended to be at the expense of the safety of sex workers, she argued.
Salih said the current legal situation is a minefield for sex workers to determine if they are working together cooperatively, which would not be prosecuted, or if they work in a commercial company such as an escort agency, which is illegal.
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