Ontario Court judge rules parts of Canada's prostitution laws are unconstitutional

An Ontario Court judge has ruled that three parts of Canada's prostitution laws violate the Charter of Rights and Freedoms. 

Justice Thomas McKay ruled that the laws, which prohibit procuring, advertising and materially benefiting from someone else's sexual services, are unconstitutional.

That means the charges against London, Ont., couple Tiffany Harvey and Hamad Anwar are stayed. 

They ran Fantasy World Escorts until it was shut down by police in 2015.  

In his ruling, McKay said the law against advertising violates the Charter right to freedom of expression, and the laws against procuring and materially benefiting violate the Charter guarantee of "security of the person." 

Anwar cried as the verdict was read and put his arm around Harvey. 

"We won. We won them all," Harvey told someone on the phone outside court. 

The couple's family members, who came to all of the court hearings in the last four years, also wept and hugged each other. 

Appeal likely, experts say

But those who work with victims of sex trafficking say the decision is "astounding."

"We're protecting pimps. Their Charter rights apparently supersede the rights of vulnerable girls and women," said John Cassells, an anti-human-trafficking specialist with the Christian mission organization SIM Canada. "This has to be appealed." 

The Ontario court decision applies only to this particular case, but does set an important precedent, said James Lockyer, a lawyer for Anwar and Harvey. 

"It's a very important precedent for other judges to consider when the same issue comes up, but it doesn't amount to a declaration across the country that these sections (of the Criminal Code) are void and of no effect," Lockyer said outside court. 

"Right now, it's a provincial court decision."

The Ontario Court of Appeal would have to uphold the ruling in order for laws to be nullified. The Crown has not said whether it will appeal the judgment. 

"On the one hand, this ruling was for my clients, because it means their charges are dismissed," Lockyer said. "But on the other hand, this judgment is very important for sex workers. It enables sex workers to have proper protection in their profession, they can set up their own co-operatives to protect each other, they can hire expert managers to make sure their business is run properly, and it allows them to get off the street, which is the most important thing, because that's where sex work is most dangerous." 

Lockyer and Jack Gemmell, the couple's other lawyer, argued that Canada's 2014 prostitution laws drive sex work underground, making it more dangerous because clients can't be screened, and women can't legally hire protection or managers to help them run their business. 

Canada's laws follow what's called the Nordic Model, which criminalize the purchase of sex but not the sale of sex. In other words, those who buy sex can be charged, but those who sell themselves cannot. 

However, Gemmell said after the ruling he hopes today's judgment is the first step to dismantling that framework. 

"It really is overdue. I hope this decision gets the process of looking at these laws going," he said, adding that sex workers should be allowed to work in co-ops, and regulations could oversee the industry. 

'Increased risk of serious injury or death'

In his written ruling, McKay said the law against profiting off the sale of someone else's sexual services goes too far. 

"The provisions are drafted so broadly that they expose sex workers who desire to work co-operatively with other sex workers to the risk of criminal liability, and employees in non-coercive, non-exploitative relationships with sex workers to criminal liability," he wrote. 

"Legislation for which the stated purposes include eliminating exploitation and reducing the risk of violence to sex workers actually has the effect of exposing sex workers to an increased risk of exploitation by discouraging all third parties other than the criminal element from becoming involved in the sex industry. The provisions also increase the risk of violence by preventing or restricting the way in which many effective safety measures can be implemented by sex workers." 

Advertising, McKay wrote, allows sex workers to screen their clients before meeting them face-to-face, and helps create social networks to reduce isolation and stigma. 

"The evidence, which I have accepted, suggests that sex workers view the ability to advertise as a communication tool which is more important to security and safety concerns than it is to promoting their economic interests," he wrote.

"Limiting the ability of sex workers to clearly communicate terms and conditions for their services and to effectively screen potential clientele will result in a significantly increased risk of serious injury or death." 

McKay also said the section of the Criminal Code that prohibits procuring the sexual services of others is overly broad. 

"Marginalized or inexperienced sex workers are effectively prevented from approaching established sex workers or individuals involved in management employment situations in order to obtain advice and support," he wrote.

"This provision criminalizes individuals who offer advice related to health and safety and tangible efforts or advice at enhancing the safety of a sex worker without coercion.... It criminalizes individuals who give shelter to a sex worker for the purpose of selling sex, even in a non-exploitative, non-coercive scenario."