Sex workers and their supporters gather outside the Ontario Superior Court during the launch of their constitutional challenge to Canada's sex work laws, on Oct. 3.Tijana Martin/The Canadian Press
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 a constitutional challenge.
“Sex work itself is not a source of structural inequality. However, the impugned laws are,” said Pam Hrick, the executive director and general counsel for the Women’s Legal Education and Action Fund, which is an intervenor in the court case.
“The effects include the constant over-surveillance by police in marginalized communities, as well as barriers, including accessing and maintaining housing,” she added.
“The laws have the impact of restricting the agency of sex workers.”
The Supreme Court of Canada struck down the country’s anti-prostitution laws in 2013 after lawyers argued provisions were disproportionate, too broad and put sex workers at risk of harm.
In December 2014, the Conservative government passed a new bill to replace them.
The Canadian Alliance for Sex Work Law Reform, which includes 25 sex-worker organizations across the country, started arguing in a Toronto courtroom on Monday that the 2014 legislation fosters stigma, invites targeted violence and removes safe consent.
They also argue it violates the Canadian Charter of Rights and Freedoms.
Under the previous laws, prostitution was legal, even though nearly all related activities, such as running a brothel, pimping and communicating in a public place for the purposes of prostitution, were against the law.
The prostitution-related offences brought in under former prime minister Stephen Harper moved closer to criminalizing prostitution itself by making it against the law to pay for sexual services and for businesses to profit from it. It also made communicating to buy sexual services a criminal offence, even if those transactions take place over the internet.
The federal government maintains those new statutes do not prevent people selling sex from taking safety measures, and that they are meant to to reduce both the purchase and the sale of sexual services.
Lawyers representing transgender, Indigenous and Black sex workers argued in court Tuesday the new laws are too restrictive and disproportionately harm marginalized groups.
Studies show Indigenous, transgender, nonbinary and racialized migrant individuals are overrepresented in the sex work industry. They also show sex workers belonging to marginalized groups are excluded from other employment sectors for a variety of reasons, including discrimination, colonialism and immigration status.
The alliance says there shouldn’t be any criminal laws specific to sex work, and it has dozens of recommendations to create a more regulated industry.
Michael Rosenberg, the lawyer representing the alliance, said in court Tuesday that decriminalizing sex work “is the only rational choice.”
But he also said the court can’t be asked to tell Parliament what to do, it can only decide if the legislation is unconstitutional and strike it down.
Lawyers representing the federal government argued in court Tuesday that the laws in question have exemptions to prevent sex workers from being criminalized. They asked Ontario Superior Court Justice Robert Goldstein to consider the intention of Parliament when the laws were passed in 2014.
Michael Morris, arguing behalf of attorney-general David Lametti, said there is no consensus on the best policy approach for commercialized sex. But he said the primary objective of the Canadian laws are to “target and end the demand for sexual services.”
He said the laws also target those who capitalize on the demand for sexual services while ensuring the sex workers themselves aren’t criminally liable for providing the services.
In a written statement Tuesday, 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 Charter of Rights and Freedoms.”
The 2014 law required that it be reviewed five years after it passed though that didn’t happen until this year.
The House of Commons justice committee met eight times since February to review the law and made 17 recommendations, including a call to remove specific sections of the law because of the harmful effects on sex workers.
The committee’s report said the 2014 law makes sex work more dangerous, and asks the government to strengthen the Criminal Code by making additional resources available to victims and law enforcement combatting exploitation. They also want the government to make coercive and controlling behaviour in intimate partner relationships a criminal offence.
A dissenting report was filed by the Conservative Party of Canada, which largely continues to support existing legislation.
Lametti has 120 days to respond to those recommendations and is expected to do so before Oct. 20.
The court hearing will continue Thursday.