Ontario Superior Court grapples with question: How may Parliament protect women and girls from sexual exploitation?

October 26, 2022 | Gerald D. Chipeur, Tory Hibbitt

In 2013, in its landmark decision Canada (Attorney General) v Bedford, the Supreme Court of Canada unanimously declared the country’s anti-prostitution law to be unconstitutional because the law violated the rights of sex workers to life, liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms (“Charter”). The Court gave Parliament up to one year to change the impugned provisions, and within this time the government responded with the enactment of Bill C-36 the Protection for Communities and Exploited Persons Act (“Exploited Persons Act”).

The Exploited Persons Act implements what is known as the Nordic Model of law, which decriminalizes parts of the sex trade while aiming to protect vulnerable women and children from sexual exploitation. This approach recognizes prostitution as inherently harmful because of the risks of sexual exploitation, violence and trafficking. It denounces the sex trade by providing immunity to those selling and advertising their own sexual services while criminalizing the purchase of sex.

Since its enactment, the Exploited Persons Act has been subject to scrutiny by scholars and continues to face constitutional challenge. A central issue has been whether the Exploited Persons Act enhances protection of vulnerable women and girls, or exacerbates the dangers associated with the sex trade in violation of the Charter.

Earlier this year, the Ontario Court of Appeal ruled the Exploited Persons Act offences prohibiting material benefit from purchasing sex, procuring others for the purpose of prostitution, and advertising sex, did not violate sex workers’ section 7 Charter rights to life, liberty and security of the person.

The ongoing controversy surrounding the constitutionality of the Exploited Persons Act prompted the Parliamentary Standing Committee on Justice and Human Rights to review the provisions of the Exploited Persons Act. Its review remains underway, and whether this review will result in legislative amendment remains to be seen. Meanwhile, Miller Thomson’s Gerald Chipeur, KC and Tory Hibbitt represented Defend Dignity, one of 16 interveners, in an Application brought by the Canadian Alliance for Sex Work Law Reform and individual sex workers (“Alliance”) against the Attorney General challenging the constitutionality of various provisions within sections 213 and 286 of the Criminal Code (“Impugned Provisions”).

The Application asks the Court to determine whether the Impugned Provisions enhance the protection of vulnerable women and children from sexual exploitation, or whether the Impugned Provisions exacerbate the vulnerability of prostitutes by increasing risks posed by the sex trade. Once again, a judge has been asked to find a violation of section 7 of the Charter, and to declare the limitations on sex trade unconstitutional and of no force or effect.

The Application brought by the Alliance was heard in the Ontario Superior Court of Justice from October 3 to 7, 2022.

Defend Dignity is a national Canadian organization that was founded in 2010 with the purpose of ending all forms of sexual exploitation in Canada. It assists victims of sexual exploitation, and the broader public, by providing information and resources on sexual exploitation with the aim of protecting victims from abuse, and preventing sexual exploitation altogether. Defend Dignity is also actively engaged in advocacy work, having participated in numerous government committees and consultations on the subject of the Impugned Provisions.

According to Defend Dignity, the victims it serves are the vulnerable individuals benefitting from the protections afforded by the Impugned Provisions.

On October 7, 2022, Defend Dignity intervened to assist the Court by drawing on its unique experience and expertise in highlighting three key arguments from its factum. Those arguments are as follows:

  1. There are many instances in which the law reasonably limits the conduct of consenting individuals where it is necessary to do so in order to protect the vulnerable. Defend Dignity cited the examples of the Ontario Regulated Health Professions Act, which strictly prohibits health professionals from engaging in sexual activity with a patient, as well as the provincial laws which enforce the Canada Health Act to prohibit physicians and patients from agreeing to extra-billing.
  2. Defend Dignity highlighted various international treaties, conventions and protocols of which Canada is a signatory, with specific reference to the Convention on the Elimination of All Forms of Discrimination against Women, as evidence that the Impugned Provisions are reasonable limits on the rights in sections 2, 7 and 15 of the Charter.
  3. Lastly, Defend Dignity cited a Federal Court of Appeal decision which helpfully explains the concept of the margin of appreciation owed to Parliament by the Court when considering legislative schemes enacted to address complex social issues requiring the Court to balance interests.

The Honourable Justice Goldstein reserved his decision to review the extensive materials filed in the Application. It is anticipated that the written decision will be issued in several months’ time.

If you have any questions, please contact a member of the Miller Thomson LLP Administrative & Public Law group.