Ontario Court set to rule on constitutionality of Canada’s prostitution laws

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An Ontario Court judge is set to rule on the constitutionality of Canada’s prostitution laws Friday, in a case involving an escort agency shut down by police five years ago – the first real test since the legislation was revised in 2014.

Hamad Anwar and Tiffany Harvey, then 26 and 24, were charged in November, 2015, after a six-month police probe, sparked by complaints from London, Ont., residents about advertisements on local bus shelters, culminated in a raid on their business, Fantasy World Escorts.

The pair – who were pulled over in Mr. Anwar’s Ford Mustang, with the licence plate “MRBOSS” – were charged with procuring, advertising and materially benefiting from the sale of someone else’s sexual services.

They launched a constitutional challenge in 2017, arguing that they were charged under laws that violate sex workers’ Charter rights to safety and freedom of expression.

It’s a case that’s being closely watched by legal scholars and sex workers’ advocates, given how divisive the topic of sex work is.

“It’s interesting because we have a broader discussion going on globally, and in Canada, around how to understand the commercial exchange of sex,” says Debra Haak, an adjunct professor at Osgoode Hall Law School.

“[That conversation] is premised in two very different understandings: one that sees it as sex work and thinks that it ought to be treated as work, and that [criminal] sanctions shouldn’t apply – and the other side that sees it as inherently exploitative, and inconsistent with a gender-equal society.”

Canada’s prostitution laws were revised in 2014 after the Supreme Court 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.

“Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes. It is not a crime in Canada to sell sex for money,” Chief Justice Beverley McLachlin wrote in the 2013 ruling.

In response, the federal government adopted the “Nordic model,” which aims to eliminate the demand for sex work in order to eradicate the practice 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.

Some critics have argued these new laws continue to endanger women by pushing the industry underground.

Mr. Anwar and Ms. Harvey, who are a couple, do not dispute that they were running an escort agency, and have agreed to plead guilty to some charges if their challenge is unsuccessful.

But they argue the very nature of these laws “upsets and dissolves what the Supreme Court of Canada expressed in [the 2013 ruling],” their lawyers, Jack Gemmell and James Lockyer, argued, according to court documents.

They argue that the laws against being able to procure or materially benefit from someone else’s sexual services essentially force sex workers to work alone, which “results in greater isolation and less community for them. It also privileges those with better resources.”

Advertising is important, they argue, because it allows for the terms and conditions of services to be made clear to potential clients in advance. At Fantasy World Escorts, they noted in court documents, a code of ethics was published online that clearly outlined hygiene and behavioural requirements for clients.

Advertising also enables sex workers to “avoid the random violence of the streets,” they argue. “As such, it promotes an important societal and Charter value, the right to health and safety in the work environment.”

The Crown, in response, has argued that the existing laws are constitutionally sound, and “represent an informed response to the complex issue of prostitution."

Crown lawyers argue that third parties such as Fantasy World Escorts, who seek profit from sexual services through a “commercial enterprise,” are considered exploitative under the new legislation, and are therefore appropriately targeted by the laws.

Though expert witnesses were called by both sides to testify, the court did not hear from any sex workers themselves.

Because this case is being heard in the Ontario Court of Justice, the ruling will not apply automatically to all future cases in the province as it would if it were at the Superior Court level.

Ontario Court Justice Thomas McKay is scheduled to deliver his ruling Friday morning in Waterloo.

When final arguments wrapped up in the case last summer, he told the court that he expects his decision in this case “will be a lengthy one.”

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