Post-Bedford: Judicial Variance in Applying Canada's New Sex Work Regime.

• Author: Carbonaro, Elisa

Introduction

1. The Evolution of Sex Work Laws in Canada

   1. Section 286.1: Prohibition on Purchase of Sexual Services

   2. Section 286.2: Material Benefit Prohibition

   3. Section 286.3: Prohibition on Procuring Sexual Services

   4. Section 286.4: Advertising Sexual Services

   5. Section 286.5: Immunity

2. Reception of New Sex Work Regime

   1. Safety First? Remedying the Safety Concerns of Bedford

   2. Is the New Regime Constitutional?

   3. Morality: Opposing Feminist Fronts

3. Methodology

4. Results & Discussion

   1. Sections 286.1-286.4

      (i) Section 286.1: Communication and Purchase

      i. Sting Operations

      ii. Entrapment

      iii. Summary

      (ii) Section 286.2: Material Benefit

      i. Statutory Exceptions

      (iii) Section 286.3: Procuring

      i. Is Introduction to Sex Work a Necessary Condition?

      (iv) Section 276: Prior Sexual Activity

      (v) Section 286.4: Advertising

   2. Constitutional Validity

      (i) Sections 7 and 2(b)

      Conclusion

      Introduction

      In Canada (Attorney General) v Bedford, the Supreme Court of Canada struck down three prostitution-related Criminal Code offences for violating the Canadian Charter of Rights and Freedoms, leaving Parliament to develop a new regime. (1) Parliament enacted the Protection of Communities and Exploited Persons Act (PCEPA) (2) in response to the declaration of invalidity, and for the first time in Canada's history it became illegal to exchange sexual services for consideration. The new scheme has been referred to as an asymmetrical criminalization. (3) It prohibits the obtaining or third party facilitation of exchanging sexual services for consideration while immunizing sellers from prosecution. (4) The laws came into effect December 2014 and have now been applied in courts across Canada. This paper seeks to answer the question: how are the new sex work laws being interpreted and applied by the courts? Within this broad question, the paper attempts to ask what conduct is captured by the new criminal provisions, how courts understand and apply the laws, and some of the new spaces where PCEPA intersects with existing laws.

      In answering this question, a sample of case law was collected and analyzed. The sample aggregates seventy-seven written decisions over a seven-year period that either applied or substantively discussed the new laws. Case law regarding each discrete criminal offence of the new regime was analyzed specifically for the conduct being captured, how the laws were interpreted, and how the court characterized their legislative purpose.

      The case law sample indicates the new regime captures a broad array of conduct and, in turn, is being applied in an uneven manner. In particular, the provisions of material benefit, procurement, and the overlap between the two resulted in diverse interpretation and application by judges. Parliament purposefully designed a legal regime criminalizing all conduct related to sex work, adopting the view that sex workers are inherently exploited; however, there lacks judicial consensus on what amounts to exploitative conduct in practice. The case law demonstrates that judges may differ in their interpretation of criminally culpable behaviour and perhaps sex work itself. When a legal regime casts a broad net, it may be more difficult to ascertain a cohesive application or statutory objective. Perspectives on sex worker agency likely play a role in what cases come before the court, how the court applies the laws, and whether the court views the legal scheme as constitutional or not.

      The remainder of this paper is broken into five sections. Part II explores the legislative evolution of sex work up to the current legal scheme, sections 286.1-286.5 of the Criminal Code. This section provides an overview of how Parliament's objectives in criminalizing sex work have shifted over time to reflect contemporary circumstances and social values. Part III examines three core criticisms of the new laws: failure to remedy safety concerns; constitutional validity; and the ideological framework of the new scheme. Part III outlines the methodology and Part IV analyzes and discusses the results. The first result was the striking lack of section 286.1 cases, the new statutory provision which prohibits the purchase of sexual services, within the case law sample. Several reasons--including police practice and alternative measures--may point to why the controversial centerpiece of the legal scheme is markedly absent. The following PCEPA provisions capture third party conduct such as material benefit, procurement, and advertising. Difficulty arose in interpreting and applying these provisions in a consistent manner. The uneven application may stem from the legislation's broad scope, designed to capture all conduct related to sex work. But in practice the judges vary in finding sex work-related conduct exploitative or parasitic. Perspectives on sex work, safety, and agency may impact how the judiciary grounds an understanding of exploitative conduct. Variance in how judges interpret and apply the new sex work laws points to greater uncertainty around the scheme's legislative objective. In light of the broad statutory language and interpretation, the constitutional stability of the regime is left on uncertain grounds.

1. The Evolution of Sex Work Laws in Canada

   Sex work (5) has long been tied to concepts of morality, victimization, and criminality. The public and judicial perception of it has undergone a metamorphosis. Historically in Canada the sale of sex has not been criminalized, but instead sex work-related activity has been shrouded with criminal prohibitions that target its incidental and consequential effects (i.e., communicating, vagrancy, profiting). In the late 1860s the federal government briefly toyed with the idea of regulating sex work after accepting abolishment was futile. (6) Judges during this period considered "prostitution an immoral" but "necessary social evil" because it provided the essential service of alleviating male sexual needs. (7)

   Between Confederation and the early 1970s, sex work regulation shifted from being grounded on public health concerns (8) to a vagrancy-based offence that also sought to protect women from pimps and brothel owners. (9) Under the vagrancy model, the act of prostitution was initially considered a "status offence" that required neither act nor omission, merely a state of being. (10) In 1953, Parliament amended the definition of vagrancy in the Criminal Code to require some form of action and therefore greater due process. (11) However, "being a common prostitute or night walker" remained a pure status offence. (12) This exception was due to the perceived immorality of sex workers and highlights the gendered nature of the vagrancy laws. (13) The vagrancy law was repealed in 1972 and replaced with the ambiguous and ineffective "soliciting" offence, which focused on behaviour and prohibited soliciting in a public place for prostitution. (14)

   Throughout the 1970s and early 1980s Parliament passed laws criminalizing more and more sex work-related activity such as keeping or occupying a bawdy-house, living on the avails of prostitution, and procuring. Police lobbied for legal reform to address what had become an "unmanageable" street prostitution problem. (15) The government formed the Fraser Commission to determine where Canadians stood on sex-for-sale issues. But consensus was nowhere to be found; groups advocated for everything from harsher penalties to decriminalization. (16) The final Fraser Report advanced a liberal position, noting that prostitution was unlikely to ever disappear and government efforts should flow towards permitting or regulating prostitution while addressing underlying causes. (17) However, in 1985 the federal government replaced soliciting with the "communication for the purpose of prostitution in a public place" offence. (18) Notably, both the seller and the buyer were captured by this provision. (19) The change towards prohibiting communication led to a drastic increase in charges as police cracked down on indoor and street-level sex work. (20)

   The communicating offence and the bawdy-house provisions were put before the Supreme Court of Canada to answer constitutional questions in the Prostitution Reference. (21) The question was whether the laws violated Charter sections 2(b) (freedom of expression) and section 7 (right to life, liberty, and security of the person). For the majority, Dickson CJ found both offences valid, with only the communicating offence in breach of section 2(b) but ultimately justified under section 1. (22) Chief Justice Dickson held the purpose of the communicating offence was to supress the social nuisance caused by public solicitation. (23) Justice Lamer (concurring) found the purpose of the communication offence went beyond nuisance abatement. He held there is an additional "objective of minimizing the public exposure of an activity that is degrading to women" in an effort to reduce forms of violence associated with soliciting. (24)

   In dissent, Wilson J adopted the same objective as Dickson CJ, finding the law was directed solely at public and social nuisance resulting from sex service transactions. (25) However, she held the communicating offence was inconsistent with Charter sections 2(b) and 7 and could not be justified under section 1. (26) The offence was found contrary to the principles of fundamental justice because the deprivation of liberty was disproportionate to the nuisance abatement objective. (27)

   The notion that sex work degraded women was weaved throughout the judgment. Justices Lamer and Wilson found selling sex to be inherently demeaning and that the true "victims" were the sex workers themselves. (28) The Supreme Court of Canada implicitly aligned with a more conservative feminist perspective, while at the same time liberal feminists advanced an opposing perspective: an individual should have sovereignty over his or her own body. (29) However, the liberty interest considered in the...