A case the Supreme Court of Canada heard on Nov. 12 and 13 could set a precedent for Canadian sex-work laws and is the first constitutional challenge of the laws introduced a decade ago to be heard by the top court.
But sex-worker rights groups argue the case addresses only parts of the laws and neglects sex workers’ broader rights. The groups advocate for decriminalization of sex work to make it safer for those working in the sex industry.
The question at hand is if Canada’s sex-work laws are constitutional or violate the Canadian Charter of Rights and Freedoms. If the Supreme Court decides they are unconstitutional, this could open the door for Parliament to rewrite a portion of the laws. If the court decides they are constitutional, this could fundamentally change how groups advocate for sex-worker rights.
Canada’s current sex-work laws, enacted under former prime minister Stephen Harper in 2014, were introduced via the Protection of Communities and Exploited Persons Act (PCEPA). It states that a person cannot be criminally prosecuted for selling their own sexual services, but related activities are illegal, including buying or advertising the sale of sexual services, receiving a material benefit from others providing sexual services whom they are exploiting, or procuring others for the purpose of selling sexual services. These laws were intended to target those purchasing sexual services and to end sex work in Canada.
The case before the Supreme Court, R v. Kloubakov, is led by two Calgary men who are third parties — people who are involved in sex work but are not sex workers. They worked as drivers for sex workers and were found guilty of two sex work-related offences — benefitting financially from sex work and procuring people to provide sexual services. They are appealing the convictions by arguing Canada’s sex-work laws violate the section of the Canadian Charter of Rights and Freedoms that guarantees sex workers the right to life, liberty and security of the person. This is the first opportunity for the Supreme Court to consider the constitutionality of Canada’s sex-work laws.
Sex-worker rights groups
While the Kloubakov case touches on sex-worker safety, it does not discuss the bigger issue of sex-worker rights. Sex-worker rights groups say the entire package of offences should be assessed as a whole, rather than in isolation, as is being done in the Kloubakov case, which focuses on only two offences.
Jenn Clamen, of the Canadian Alliance for Sex Work Law Reform, says that because the laws being addressed in this case impact sex workers, sex workers’ perspectives should be at the forefront. “A sex worker-led constitutional challenge is the best way to hear about the constitutionality of these laws (rather than through a third-party defence case), because it incorporates a more full argument around what those harms are beyond arrest.”
Clamen says four sex workers provided witness statements on the initial case, but a statement from the alliance, which represents 23 sex-worker rights groups, would have deepened the Supreme Court’s understanding of sex workers’ diverse realities. The Supreme Court denied the alliance the ability to speak to the case because it would have brought in a new issue that is not relevant to the case at hand.
In 2021, the Canadian Alliance for Sex Work Law Reform launched a constitutional challenge against the current laws as a whole. In 2023, its charter challenge launched at the Ontario Superior Court was dismissed. Its next step is to appeal that decision by going to the Supreme Court of Canada, but this is on hold until the Kloubakov decision is announced, which is expected sometime in the next six months.
“We hope that the Supreme Court will strike down these two provisions and that we will get the chance to argue before the Supreme Court that the other provisions are also unconstitutional,” says Clamen.
Professor Janine Benedet, who teaches law at the University of British Columbia, is representing the Women’s Equality Coalition. She says it’s important the court make a decision with different sex-industry experiences in mind. “Amongst my clients are a group of women who were formerly in the sex industry and have a very different story to tell from some of the sex-workers’ rights groups (like the alliance)… It’s important to recognize that those perspectives are not uniform.”
Benedet agrees this case is not best suited to address the entire package of offences but says the Supreme Court will focus on the specific case at hand and make a decision based on what is in front of it.
Tori, a sex worker in Winnipeg whose identity is being protected for safety reasons, says she’s “worried about whether or not the Supreme Court will be able to see how these laws really impact us because they all play together.”
While sex workers can’t be prosecuted for selling sex, Tori says they fear losing housing as a result of working out of their homes, police surveillance, stigma in accessing health care and deportation, among others.
Austin, another Winnipeg sex worker, says there’s a presumption that sex work is fully legal. “But the way that we live it in our work, and the way that these laws actually operate, is that it criminalizes so many aspects of what it actually takes to sell sex and how that drastically impacts our safety, our security. It just infiltrates so many aspects of being a sex worker both in the actual work part but also in our personal lives.”
Rosel Kim of the Women’s Legal Education and Action Fund (LEAF), which intervened in the case, says the court is being asked “to do the analysis through a structural, intersectional equality lens and take into account the lived reality of sex workers.” She says LEAF argued that “any measure that denies an already marginalized and disadvantaged group the ability to take steps to protect themselves is an infringement of that individual’s security.”
While opinions differ on whether sex work should be decriminalized, some argue that a challenge at the Supreme Court is not the best way to address this complex, nuanced topic.
Professor Debra Haak, who teaches criminal and constitutional law at Queen’s University in Kingston, says that one of the challenges is that there are two separate conversations happening here. “What the court is deciding in all of these cases is just whether the choice that Parliament made with Bill C-36 (which criminalized many aspects around buying sex) is constitutional and not whether it’s the right policy choice, because that’s not a job for courts. That’s a job for policymakers.”
Clamen agrees that it would be ideal to have these discussions directly with policymakers instead of going to court. She says that previous advocacy work included consistent communication with parliamentarians and the Prime Minister’s Office, but that this stopped after 2015.
Clamen says going through the courts is expensive, especially for communities that are already under-resourced. “We want to sit down with the lawmakers and talk about what sex workers’ needs are and create a context that actually protects sex workers, takes care of them and considers sex workers as members of the community.”
Emily Gwun-Shun Lennon is a fellow in the Dalla Lana Fellowship in Journalism and Health Impact at the University of Toronto.
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