BENCHPRESS / Challenges to the Constitution, Canada Labour Code and an insurance policy.

AuthorSteingard, Jessica

Constitutional Challenge: Third parties can profit from sex work

R v Anwar, 2020 ONCJ 103

Hamad Anwar and Tiffany Harvey were charged for running an escort service in London, O.N. They employed several adult women, providing vacation time and benefits. Specifically, they were charged with offences under the following Criminal Code provisions:

* 286.2(1) (receiving a material benefit from sexual services)

* 286.3(1) (procuring a person to offer or provide sexual services)

* 286.4 (advertising sexual services).

The accused challenged the constitutionality of these provisions. They claimed that:

the effect [of the legal regime created by the provisions] is, at a basic level, to deprive sex workers of those things that are natural, expected and encouraged in all sectors of the economy. As a result, sex workers, who are more likely in need of protection than more workers, are denied the benefits accorded to mainstream labour. (See para 3.) The Ontario Court of Justice (Ontario's lowest court) found that:

* 286.2 and 286.3 violate s. 7 of the Charter (life, liberty and security of person)

* 286.4 violates s. 2(b) of the Charter (freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication).

The Court determined that none of these violations could be saved under s. 1 of the Charter. The Court noted that the effect of s. 286.2 is to make sex work more dangerous "by discouraging all third parties other than the criminal element from becoming involved in the sex industry." The Court also noted that s. 286.3 was arbitrary because it criminalized individuals offering administrative and safety services to sex workers that are provided to people in other industries. Finally, the Court concluded s. 286.4 fails to meet the minimal impairment requirement as it "imposes 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."

What's next? Charges against the two accused are stayed. The Crown has not indicated whether they will appeal the decision. The decision was met with mixed reviews from the public.

Labour Code Challenge: Canada Post need not inspect mail routes

Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67

Canada Post is a federally-regulated employer. It must follow the provisions of the Canada Labour Code. Section 125(1)(z.12) requires...

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