September 18, 2023 – Today, Ontario’s Superior Court of Justice dismissed the case challenging the constitutionality of Canada’s laws criminalizing sex work, also known as the Protection of Communities and Exploited Persons Act (“PCEPA”).
The federal government made PCEPA law in 2014, after the Supreme Court of Canada struck down the previous sex work laws in Bedford for violating sex workers’ Charter rights. The enactment of PCEPA not only criminalized clients, but criminalized the exchange of sex work for consideration (such as money) for the first time in Canada.
The Canadian Alliance for Sex Work Law Reform and several individual applicants started a Charter challenge. They alleged that provisions of PCEPA applicable to sex work done by persons over 18 violated the rights of sex workers under ss. 2(b) (freedom of expression), 2(d) (freedom of association), 7 (life, liberty, and security of the person), and 15 (equality) of the Charter. LEAF intervened in this case to highlight the discriminatory impacts of PCEPA on sex workers and provide guidance on how the court should consider these in deciding whether the provisions violated s. 15. LEAF’s submissions emphasized the importance of taking an intersectional approach when assessing the impact of the laws.
“As a gender equality organization, we are deeply disappointed that the court failed to recognize how the laws criminalizing sex work violate the equality rights of sex workers,” said Pam Hrick, Executive Director and General Counsel of LEAF. “This is especially true for those at higher risk of criminalization, such as Black, Indigenous, trans and/or migrant sex workers.”
In dismissing every aspect of the Charter challenge, the court declined 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.
“Sex work is not inherently exploitative or dangerous,” said Hrick. “Rather, it’s the laws criminalizing sex work that make sex work dangerous, because criminalization subjects sex workers to increased surveillance and targeting by law enforcement, exacerbates stigma around sex work, and keeps them from seeking government supports. While today’s decision is a setback, we will continue to advocate for the rights, dignity, and equality of sex workers both in and outside of the courts.”
Pam Hrick, 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. LEAF is grateful to the members of the case committee that helped to shape this intervention: Gillian Calder, Julie Kaye, Ummni Khan, Kate Shannon, and Adriel Weaver.
For media inquiries, please contact:
Executive Director & General Counsel, LEAF
416-595-7170 ext. 2002
About the Women’s Legal Education and Action Fund (LEAF)
The Women’s Legal Education and Action Fund (LEAF) is a national not-for-profit that works to advance the equality rights of women, girls, trans, and non-binary people in Canada through litigation, law reform, and public legal education. Since 1985, LEAF has intervened in more than 100 cases that have helped shape the Canadian Charter of Rights and Freedoms. To find out more, visit www.leaf.ca.