An Ontario court judge has found some sections of Canada’s prostitution laws to be unconstitutional, following a challenge brought by the owners of a London, Ont., escort agency that was shut down by police in 2015.
Justice Thomas McKay ruled Friday that the law violated Canada’s Charter of Rights and Freedoms in three respects.
The section of the law prohibiting advertising someone’s sexual services violates the Charter right to freedom of expression. The section prohibiting procuring or materially benefiting from someone’s sexual services, he ruled, violates the Charter right to life, liberty and security of person. He added that these violations are not justified under Section 1 of the Charter, which aims to strike a balance between the rights of the individual and the rights of society.
Hamad Anwar, now 30, and Tiffany Harvey, now 28, were charged with procuring, advertising and materially benefiting from the sale of someone else’s sexual services. They embraced in court as they learned that their charges would be stayed. Around them, relatives wiped away tears.
“It’s a huge relief," defence lawyer James Lockyer said outside the courthouse Friday. "And, I think, a tremendous victory for sex workers in Canada.”
The couple was charged in 2015, after police raided their business, Fantasy World Escorts, in London – a bust that was sparked by complaints from residents about advertisements on local bus shelters.
Two years later, they launched a constitutional challenge – the first real test of Canada’s prostitution laws since the legislation was revised in 2014.
In 2013, the Supreme Court had deemed the old laws – which included bans on street soliciting, brothels and people living off the avails of prostitution – to be unconstitutional in that they created severe dangers for vulnerable women. In response, the federal government adopted the “Nordic Model,” which aims to eradicate the demand for sex work altogether.
Under the new law, known as the Protection of Communities and Exploited Persons Act, it is now legal to sell sex, but not to buy or advertise it.
Mr. Anwar and Ms. Harvey argued in their challenge that these laws continue to endanger sex workers by essentially forcing them to work alone, without any protections or ability to communicate ahead of face-to-face meetings, outline terms and conditions, or screen clients.
In response, the Crown had argued that the existing laws are constitutionally sound, and “represent an informed response to the complex issue of prostitution."
In his ruling Friday, Justice McKay wrote (paraphrasing Mr. Anwar and Ms. Harvey’s argument) that the effect of the current law is, "at a basic level, to deprive sex workers of those things that are natural, expected and encouraged in all other sectors of the economy. As a result, sex workers, who are more likely in need of protection than most workers, are denied the benefits accorded to mainstream labour.”
As the couple’s family hugged them outside the courtroom, a woman stood off to the side, shaking her head. Cindy – who said she was there for the ruling because her daughter has been trafficked, and asked that her last name not be used to protect her identity – said she was hugely disappointed by the ruling, which she believes prioritizes the rights of “pimps.”
Mr. Lockyer disagrees. “This ruling today has nothing to do with permitting exploitation. On the contrary, it prevents exploitation by enabling legitimate relationships to be set up that are not exploitative,” he said.
Because this ruling was made at the provincial court level, it does not strike these sections from the law. Nevertheless, Mr. Lockyer said, it sets an important precedent for judges to consider in similar cases moving forward.
“In order for the sections to be considered null and void, it would have to go up to the next level of court to the Ontario Court of Appeal. And that’s up to the Crown whether or not they appeal it. That’s in their hands, not ours,” he said. Mr. Lockyer said he believes there is a “reasonable likelihood” the decision will be appealed. “And if the Ontario Court of Appeal gives a decision, if there was an appeal, then ultimately one or the other parties could take it on to the Supreme Court of Canada.”
Jack Gemmell, who was co-counsel with Mr. Lockyer, said he hopes the decision will spur Parliament “to reconsider the prohibitionist model [in place now], and look to more of a harm reduction model. It really is overdue,” he said. “I hope this decision gets that process going.”
Asked whether Mr. Anwar and Ms. Harvey will be getting back into the escort business, Mr. Lockyer said no. “I think they’ve moved on with their lives and I think that’s good.”
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Molly Hayes