Supreme Court finds sex work laws constitutional—at least for now

In a decision some say fails to account for the lived realities of sex workers, the Supreme Court of Canada has dismissed a constitutional challenge of Canada’s sex work laws. 

At issue in R v Kloubakov were two parts of Canada’s sex work criminalization scheme, the Protection of Communities and Exploited Persons Act (PCEPA), related to receiving a material benefit from sex workers and the procuring of sexual services.

PCEPA was enacted in 2014 following the top court’s landmark decision in Bedford the year prior, which had found three former Criminal Code offences related to sex work unconstitutional because they endangered sex workers. It made purchasing sex an offence as opposed to selling it.

The Court unanimously found that the current sex work laws are constitutional and don’t prevent sex workers from invoking safety measures. Those can include anything from working from fixed indoor locations, hiring bodyguards or drivers, and providing their services in cooperative and cost-sharing arrangements with other sex workers. 

At the heart of the case are two escort service drivers convicted under the current laws.

Defendants Mikhail Kloubakov and Hicham Moustaine worked for an escort agency in Calgary as drivers, but would also collect the money the sex workers earned and transferred the proceeds to the operators of the agency, who had pleaded guilty on separate charges related to human trafficking.

The trial judge found that Kloubakov and Moustaine were guilty of contravening the Criminal Code provisions related to receiving a material benefit from sex workers and the procuring of sexual services under PCEPA. She nevertheless worried that the provisions in the Act were overly broad to impact the safety of sex workers, and chose to stay the proceedings.

Neither offence engages sex workers’ security 

The Alberta Court of Appeal overturned the stay, restored the convictions, and referred the cases back to the trial court for sentencing. The Supreme Court dismissed the appeal.

“We conclude that neither the material benefit offence nor the procuring offence prohibits sex workers or third parties they hire from taking safety measures outlined in Bedford,” the Court said.

“As a result, the appellants have failed to demonstrate that either of the impugned offences engages sex workers’ security of the person.”

This led the Court to dismiss the challenge under Section 7 of the Charter, but it kept the decision narrow because this case was limited to two PCEPA provisions, not the scheme itself. There is an ongoing challenge of the Act before the Ontario Court of Appeal, launched by the Canadian Alliance for Sex Work Law Reform (CASWLR), that has a more robust evidentiary record. That challenge was on hold pending the Supreme Court’s decision in Kloubakov and is expected to resume.

The PCEPA includes exceptions to the material benefit provision, ostensibly to prevent an exploitative relationship, one of which is if the material benefit is obtained “in the context of a commercial enterprise that offers sexual services for consideration.” 

The trial judge struggled with how to define a “commercial enterprise,” noting that it was not written in such a way as to only capture an exploitative relationship with the sex workers. Like the Court of Appeal, the Supreme Court felt that she made an error in law in her interpretation.

“It will be for the courts to determine on a case-by-case basis whether any given enterprise is a ‘commercial enterprise’ engaged in the commodification of sexual activity,” the Court wrote.

“That question must be determined based on specific facts and a contextual and purposive reading of the term ‘commercial enterprise’ under the PCEPA.”  

However, the Court listed a number of considerations for interpreting whether the relationship is exploitative or could be considered a “commercial enterprise.”

Anaïs Brussières McNicholl, director of the fundamental freedoms program at the Canadian Civil Liberties Association, says their reaction to the decision is mixed.

“It is disappointing that the Supreme Court of Canada did not explicitly place the objective of protecting sex workers’ safety front and centre in its analysis of the purpose of the legislation,” she says. 

“However, they did clarify that the impugned provisions do allow sex workers to protect their safety in many ways.”

There is now more clarity on the material benefits test, and based on this narrow test, the Court found no infringement on Section 7 rights.

“Hopefully the decision will give some reassurance to sex workers that they have many ways in which they can protect their safety,” Brussières McNicholl says, noting she’s looking forward to the CASWLR challenge. 

Decision likely not final word on sex work laws

Geetha Philipupillai, a lawyer with Goldblatt Partners LLP in Toronto, was co-counsel for the Sexual Health Coalition as an intervenor in the case. Given the explicit mention of the CASWLR challenge, she agrees that this decision is not the final word on the matter.

In its submissions, the Coalition focused on the purpose of the two PCEPA provisions because in the Court of Appeal of Alberta and in the Ontario Court of Appeal, the safety-related purpose was not found to be a purpose of the procuring provision. Philipupillai says it’s significant that the Supreme Court disagreed with the courts below on that issue, holding that the safety-related purpose was a purpose of the procuring provision, which will affect the Section 7 analysis going forward.

She says the four PCEPA provisions need to be analyzed to determine whether sex workers can access safety measures, including those outlined in Bedford.

Philipupillai is looking forward to the CASWLR challenge to do what the Supreme Court couldn’t do in this case, and to see what happens in the face of actual evidence instead of more hypotheticals or thought experiments about what is and isn’t exploitative.

Rosel Kim, a senior staff lawyer with LEAF, who also intervened in the case, says they’re disappointed by the decision because the voices of sex workers could not be heard in the appeal. That’s because the parties in the case were not sex workers.

“Decisions about sex workers’ Charter rights should not be made without sex workers at the table,” she says. 

“The judgment doesn’t really engage with the evidence of the lived realities of sex workers. This was a part of our submission—that engaging in intersectional, substantive equality analysis requires considering the lived realities of sex workers who are impacted directly by the law.”

While the decision affirms the legislative intent that sex work is inherently exploitative, Kim says it will lead to sex workers having difficulty being heard or being believed that their working conditions are safe.

“It upholds the stigma that sex workers face, which exacerbates the dangers that they face.”

Lauren Shadley, a partner with Shadley Knerr SENCRL in Montreal, and the vice-chair of the CBA’s criminal justice section—but speaking on her own behalf—says the decision is helpful as a good example of statutory interpretation.

“We don’t often get that exercise done so thoroughly,” she says. 

“At the same time, it shows how complicated this law is, that we’re dealing with exceptions to exceptions. While this decision is very interesting, I don’t know if it will solve those interpretation problems. 

Given the tension between Parliament and the courts evident in this decision, Shadley says this isn’t the last case we’ll see with this law. She also feels like the law remains too complicated. While the Court gives good examples of what would be considered permissible, a lot is still open for discussion.

For instance, how come one individual can hire their own security, but a group of individuals can’t hire a manager to provide security for them? She says there are many situations you can think of when reading through the decision that leave you wondering why some things are allowed while others aren’t. 

Lived reality of sex workers not accounted for

Jenn Clamen, CASWLR’s national coordinator, says the Court’s analysis is largely based on a fantasy notion around cooperatives that doesn’t account for the lived reality of sex workers. Her organization was denied intervenor status in this case.

“We’re obviously very disappointed, but not surprised that this happened,” she says. 

“One of the problems with this case was the very narrow reading and understanding of these provisions. The regime needs to be looked at completely, including the criminalization of the purchase [of sex].”

Clamen says the fundamental premise the Court worked with was wrong, that even if sex workers have immunity from arrest for selling their sexual services, it’s only an immunity from arrest. The sex work itself remains criminalized, meaning they still can’t rent a location and can have their bank accounts frozen because the money made is a proceed of crime.

“This decision doesn’t take stock of what’s happening in reality,” she says. 

“It only takes stock of these very bogus notions of who third parties are, what a co-op is, or these ideas of what it means for people to work together. They’re fictitious—they’re not actually real context.”

In the cases before them, the courts struggle with the nature of what sex work is and rely on “unicorn” contexts that don’t exist in real life, even if you have a collective of sex workers who have banded together to share a website or in-call spaces.

“They can’t use those in-call spaces because they are considered illegal,” Clamen says.

“The piece that everyone is missing is that you’re not actually allowed to do crime. You can’t say a sex worker is able to hire a third party in any context because she’s still committing a crime, her money is still illegal, and she can’t live in a society in a normal way. This idea that she could work is a farce.”