Written by Daniel Standing LL.B., Editor, First Reference Inc.
The recent criminal case of R. v. Anwar, 2020 ONCJ 103 (CanLII) involved a constitutional challenge to various provisions of the Criminal Code dealing with prostitution. The challenge contained a distinct workplace safety consideration: it alleged that the interplay between the challenged sections created a legal regime which was intended to prevent sex workers from lawfully using third parties to protect them and to prevent them from associating with others for their mutual protection-aspects which are natural, expected and encouraged in all other sectors of the economy. Before eventually declaring the provisions unconstitutional, the Ontario Court of Justice considered extensive expert evidence and interpreted the legislation, concluding that the legislation exacerbated the safety problems sex workers face while on the job.
In 2013, in Bedford v. Canada (Attorney General), the Supreme Court of Canada declared unconstitutional three offences addressing prostitution-related conduct. In response, in 2014 Parliament amended the Criminal Code by enacting Bill C-36, the Protection of Communities and Exploited Persons Act (“PCEPA”), which changed Canada’s criminal law approach to prostitution. Following the change, the purchase of sex and communication for that purpose were criminalized. Also, the actions of third parties who economically benefitted from the sale of sex were criminalized, as was advertising the sale of sexual services.
The common-law husband and wife applicants in the constitutional challenge, in this case, were charged under the Criminal Code for their operation of an escort service in London, Ontario from December 2014 until November 2015. The charges were under section 286.2(1) (receiving a material benefit), s.286.3 (1) (procuring) and s.286.4 (advertising an offer to provide sexual services for consideration).
The sexual services offered by their employees were provided in two apartments in London and sometimes in hotels and apartments in Calgary and Edmonton. The business advertised its sexual services on a website which included a Code of Ethics for clientele. It also contained a job information and application form and offered employees annual paid vacation, full health and dental insurance, student tuition and book fee reductions and family coverage under the benefit plan, if applicable. The fee structure for sexual services was set in advance and the company maintained a list of contacts which was used to restrict inacceptable clientele.
The court received extensive expert testimony. The applicants urged the court to consider the factual findings made in R. v. Bedford which were based on a “mammoth undertaking” which consumed tens of thousands of pages of material from numerous experts. Not having the resources to call present such extensive evidence on their own, they did, however, call two expert witnesses, as did the Crown. The experts referred to a wide range of documents related to social science studies and opinions related to various aspects of prostitution, but they fundamentally disagreed on whether a “harm reduction approach” is of any benefit to sex workers. The Crown’s experts viewed prostitution as an inherently harmful and violent domain where safety is impossible. The court was so concerned with the Crown’s experts’ apparent bias that it determined that their evidence merited no weight.
Based on the evidence before it, the court found that most sex workers take part in the industry out of financial motivations. Many sex workers earn significantly more than those in unskilled labour. Sex workers are largely self-employed or frequently working alone, although most at one time have worked for a third party. Data shows that the level of violence faced by indoor sex workers may be lower than that experienced by professions like emergency room nurses. Canadian research reveals that coercion and control of sex workers by third parties is not prevalent.
The court found that unlike in the past, the industry has mainly evolved into indoor locations, where prospective purchasers can find sellers on the internet, allowing the parties to communicate in advance about the price, services and other conditions. This has contributed to workplace safety through the use of screening practices, safety checks and the creation of an informal social network among sex workers. In the majority of cases, third parties involved in the sex industry carry out roles that are similar to other industries, such as office administration, training and mentorship, and security.
Interpreting the legislation, the court found that it was clear that the intent of the Act was to implement a version of the “Nordic Model” which aims to eliminate the demand for sex work. The court considered statements by the Minister of Justice which indicated that both the criminalization of the purchase of sexual services and the advertising offence were aimed at reducing the demand for sexual services, but that the material benefit offence was not applicable to non-exploitative relationships.
The court’s findings
The court first dealt with the advertising offence in s.286.4 and, given the Crown’s concession that it breached s.2(b) of The Canadian Charter of Rights and Freedoms (Charter), focused its analysis on s.1 of the Charter to determine if the breach could be justified. The court found that the provision failed to minimally impair the Charter right because it imposed criminal liability on third parties even if they are in non-exploitative commercial relationships with sex workers offering services at the same cost that they generally make available to the public. The court also found that since many sex workers require third parties to help with advertising, the provision had the practical effect of depriving them of essential means for ensuring their safety. Safety and security of sex workers is a serious consideration, and the negative impacts of this provision were found to be disproportionate to the positive effects, considering Parliament’s objective. Therefore, this provision could not be justified under the Charter.
Second, the court analyzed the procuring offence in s.286.3 which makes it an offence to procure a person to offer sexual services for consideration, and subjects anyone who engages in a range of actions for the purpose of facilitating the sale of sexual services to an offence. These actions include anyone who “recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person.” Section 286.3 contains no exceptions. The court found that the provision clearly criminalized any employee or owner of a business who might persuade someone to engage in sex work, even if the relationship between the parties is completely noncoercive and non-exploitative. The court reasoned that this has the net effect of privileging sex workers with better resources, while those who are marginalized or inexperienced will be prevented from approaching others in the industry for advice and support, which will pose greater risks to their physical and emotional health and safety if they engage in sex work. The court determined that this provision denies the Charter guarantees of liberty and security of the person of the affected sex workers. The court found that the provision criminalized those who offer advice related to health and safety, as well as those who, in exchange for a salary, simply offer sex workers the same type of administrative services that are provided to people in other industries, in noncoercive, non-exploitative settings. The court concluded that the provision lacked a connection between its goal and its effect. The section was found to be overly broad and, carrying a maximum punishment of fourteen years imprisonment, was grossly disproportionate in its effects on liberty and security of the person, making it incapable of justification under s.1 of the Charter.
Finally, the court considered the material benefit offence in s.286.2 which was broadly worded and covered financial or other material benefits, obtained by or derived directly or indirectly from the sale of sexual services. The section was rendered complex by its exceptions and the exceptions to the exceptions. Similar to s.286.3, under this section a third-party manager who is not engaged in coercion and simply performs the same kind of role that they would in another industry commits an offence. Also, the court found that unsophisticated sex workers who pool resources in order to share secured locations, staff and security arrangements face a “substantial likelihood” of violating the material benefit provisions and exposing themselves to criminal liability. This was found to disproportionately impact the inexperienced and marginal sex workers, who are most at risk. Ironically, given Parliament’s stated concern about the exploitation and risk of violence faced by sex workers, aspects of the material benefits provision were found to have the effect of increasing the risk of violence to and the exploitation of sex workers. Therefore, the effect of this provision was arbitrary, and it was overly broad in that it exposed sex workers who want to work cooperatively with other sex workers to the risk of criminal liability, even if they operated in noncoercive, non-exploitative relationships. The section was found to significantly impact the security of the person of interest protected by section 7 of the Charter. Due to its lack of rational connection to the objective of s.286.2, its failure to meet the minimal impairment test and a lack of proportionality, it could not be saved under section 1 of the Charter.
The decision’s impact
As a result of the constitutional challenge, the charges against the defendants were stayed. This case represents the first real test of Canada’s prostitution laws since the legislation was revised in 2014. However, since the decision was rendered at the provincial court level, the targeted sections are not struck from the law. For that to happen, the decision would have to be affirmed at the Ontario Court of Appeal, and a further appeal to the Supreme Court of Canada remains a possibility. For now, though, the decision represents a powerful precedent for judges to consider in other similar cases in the future. At its basic level, the decision grants sex workers-a marginalized segment of the labour force-a significant degree of protection which was previously lacking, according to proponents of a harm reduction model of legislation.