TORONTO — Significant parts of Canada's prostitution law that bans advertising in the sex trade or making money from sexual services are unconstitutional, an Ontario court judge ruled on Friday in a case involving a couple who ran an escort agency.
In addition, Judge Thomas McKay said the ban on procuring sexual services also violates the charter.
Because the judgment is from a provincial court, it is not binding, and the law remains in effect unless an appellate court sides with McKay in the event of an appeal.
Nevertheless, a lawyer for one of the accused praised what he called the precedential decision.
"Today is a good day for the safety and protection of sex workers," lawyer James Lockyer said in an interview.
At issue are parts of the law enacted by the former Conservative government under Stephen Harper in November 2014 after the previous law had been struck down. The new law criminalized the purchase of sex, and communication for that purpose. It also outlawed related advertising.
"We argued the new law made it even less safe for (sex workers)," Lockyer said.
In this case, police charged Hamad Anwar and Tiffany Harvey, of London, Ont., for running an escort agency known as Fantasy World Escorts. Their business employed several adult women in the city.
Evidence was that the couple advertised their business and used their website to recruit both new clients and new employees, promising an average salary of $2,500 to $5,000 a week, paid annual vacation, benefits and help with tuition and book payments for students. Anwar set the fee schedule for clients and the business also maintained a code of ethics for clientele.
The couple challenged the constitutionality of the legislation under which they were charged. Among other things, they argued the law prevented sex workers from using third parties for protection, and stopped them from forming their own associations to look out for one another.
They also argued the law violated their freedom of expression and their right to be free from unreasonable government interference.
While the prosecution conceded the law infringes on the rights of those in the sex trade, it argued the violations were justified in a free and democratic society. It maintained the law aims to reduce prostitution while striking a balance for sex worker freedoms.
McKay, who noted the bill treats sellers of their own sexual services as victims, disagreed with the prosecution. After hearing eight days of evidence at the trial in Kitchener, Ont., he found the three provisions did violate the charter and could not otherwise be justified.
The judge found a wide variety of reasons that adults engage in sex work, with money a primary motivator. Many of them are self-employed or work independently much of the time, he found. While some third parties might be abusive partners or predators, most aren't, McKay said. They do administration, offer training and support, and security, he said.
"Canadian research suggests that coercion and control of sex workers by third parties is not pervasive."
The judge found that the rules against procuring further isolates already marginalized or inexperienced sex workers, who are "effectively prevented" from approaching their more experienced peers for advice or support. The third-party ban, McKay said, makes it all but impossible for most sex workers to work co-operatively with others, whether for health and safety reasons or sharing staff.
It was not immediately clear if the prosecution would seek to appeal.
This report by The Canadian Press was first published on Feb. 21, 2020.