This case is about the constitutionality of Criminal Code sex work provisions.

LEAF intervened before the Ontario Superior Court of Justice.

Facts

In 2014, Parliament passed the Protection of Communities and Exploited Persons Act (PCEPA). PCEPA established Canada’s current sex work laws after the Supreme Court of Canada struck down the previous sex work laws in Canada (Attorney General) v. Bedford for violating sex workers’ Charter rights. The implementation of PCEPA not only criminalized clients, but criminalized the exchange of sex work for consideration (such as money) for the first time in Canada.

In March 2021, the Canadian Alliance for Sex Work Law Reform, along with individual sex workers and a third party provider, filed a Notice of Application at the Ontario Superior Court of Justice to argue that the Criminal Code prohibitions of sex work violate their Charter rights guaranteed under sections 7, 15, 2(b), and 2(d). The Applicants provided significant evidence that the laws exacerbated harms to sex workers by facilitating constant police surveillance, lack of access to or difficulty maintaining housing, and/or barriers to accessing government supports.

Arguments

LEAF argued that the Criminal Code provisions infringe gender equality guaranteed under s. 15 of the Charter and cannot be justified under s. 1. 

As an intervener, LEAF emphasized the importance of taking an intersectional approach when assessing the impact of the laws. LEAF also argued that the illegality of sex work does not shield the laws from equality analysis. Any violation of the equality guarantee on sex workers cannot be justified by an abstract notion of “protecting women” that is somehow provided by causing demonstrable harm to marginalized members of this group.

Outcome

This case was heard by the Ontario Superior Court of Justice during the week of October 3, 2022. On September 18, 2023, the Court dismissed every aspect of the Charter challenge, declining to find that sex work is an “analogous ground” of discrimination under section 15 of the Charter.

This fundamentally misunderstood the argument of the Applicants. It further resulted in fundamentally misapplying the intersectional equality approach to s. 15 that LEAF advanced in its intervention. The Court also rejected that PCEPA has created the conditions that give rise to the discrimination and harms faced by sex workers, while troublingly giving little weight to the direct evidence of sex workers in the case. 

Pam Hrick (LEAF Executive Director and General Counsel), Rosel Kim (LEAF Senior Staff Lawyer), and Dragana Rakic (formerly of Stockwoods LLP) represented LEAF in this intervention. 

LEAF’s arguments were informed and supported by a case committee composed of academics and practitioners with expertise in relevant issues. The case committee in this intervention were: Gillian Calder, Julie Kaye, Ummni Khan, Kate Shannon, and Adriel Weaver. LEAF gratefully acknowledges their contributions to the arguments in this factum.

Download LEAF’s factum here.