OTTAWA-
The laws governing prostitution in Canada, not sex work itself, are creating inequality, a lawyer told the Ontario Superior Court on Tuesday as part of an appeal of unconstitutionality.
“Sex work itself is not a source of structural inequality. However, the laws being challenged are,” said Pam Hrick, executive director and general counsel of the Women’s Legal Education and Action Fund, which is involved in the court case.
“The effects include constant over-policing by police in marginalized communities, as well as barriers, including access to and maintenance of housing,” he added.
“The laws have the impact of restricting the agency of sex workers.”
Canada’s Supreme Court struck down the country’s anti-prostitution laws in 2013 after lawyers argued the provisions were disproportionate, too broad and put sex workers at risk of harm.
The Conservative government passed a new bill to replace them in December 2014.
The Canadian Alliance for Sex Work Law Reform, which includes 25 sex worker organizations across the country, began arguing in a Toronto court Monday that the 2014 legislation encourages stigma, invites targeted violence and removes secure consent.
They also argue that it violates the Canadian Charter of Rights and Freedoms.
Under previous laws, prostitution was legal, although almost all related activities, such as running a brothel, pimping, and communicating in a public place for the purpose of prostitution, were prohibited by law.
The prostitution-related offenses brought under former Prime Minister Stephen Harper came closer to criminalizing prostitution itself by prohibiting the law from paying for and profiting from sexual services. It also made it a crime to communicate to purchase sexual services, even if those transactions take place over the Internet.
The federal government maintains that these new statutes do not prevent people who sell sex from taking safety measures and that they are intended to reduce both the buying and selling of sexual services.
Lawyers representing transgender, indigenous and Black sex workers argued in court Tuesday that the new laws are too restrictive and disproportionately harm marginalized groups.
Studies show that indigenous, transgender, non-binary, and racialized immigrants are overrepresented in the sex work industry. They also show that sex workers from marginalized groups are excluded from other employment sectors for a variety of reasons, including discrimination, colonialism and immigration status.
The alliance says there should be no specific criminal laws for sex work and has dozens of recommendations to create a more regulated industry.
Michael Rosenberg, the attorney representing the alliance, said in court Tuesday that decriminalizing sex work “is the only rational option” for the advocacy groups involved.
He also told Ontario Superior Court Judge Robert Goldstein how he thinks it should happen.
“And in a political sense, that’s what they would like to see,” Rosenberg said of decriminalization.
“But that’s not how it works. In this courtroom, you are not being asked to decide what Parliament should do. What you can do is recognize unconstitutional legislation and you can override it,” he said.
The federal government has not yet had a chance to defend its position in court.
In a written statement Tuesday, Attorney General David Lametti’s office said the minister “will always work to ensure that our criminal laws effectively meet their objectives, keep all Canadians safe and are consistent with the Bill of Rights and Freedoms”.
The 2014 law required it to be reviewed five years after its passage.
The House of Commons justice committee has met eight times since February to review the law and made 17 recommendations, including a call to remove specific sections of the law due to harmful effects on sex workers.
Lametti has 120 days to respond to those recommendations and is expected to do so by Oct. 20.
This report from The Canadian Press was first published on October 4, 2022.