Selling sex is 'a societal blight,' Crown argues in prostitution charter challenge

The judge who will decide if the country's new prostitution laws violate the Charter of Rights and Freedoms must weigh the public good with the individual rights of sex trade workers, the Crown said during closing arguments in a Kitchener, Ont., courtroom Thursday.

Michael Carnegie is making the final arguments in the first charter challenge to Canada's new prostitution laws. 

"The court is compelled to consider the greater good or the public good," Carnegie said.

"The victims of prostitution are not just the sellers, but also children exposed to prostitution. Society itself is harmed by the commodification of sexual services."

The case involves a London, Ont., couple who ran Fantasy World Escorts, which was raided by police and shut down in 2015.

Tiffany Harvey and Hamad Anwar were charged with procuring, advertising and materially benefiting from the sale of someone else's sexual services, all of which are illegal under revisions to Canada's prostitution laws, which came into force in 2014. 

But the couple's lawyers say the law puts sex workers at risk by forcing them to do their work underground, therefore violating the workers' charter right to security of the person.

The lawyers, James Lockyer and Jack Gemmell, say Canada's prostitution laws are based on the flawed belief that sex work is inherently exploitative and harmful. 

Defence focuses on safety

The Crown is arguing that sex work is exploitative, but that the new laws take that into consideration and don't punish sex workers, but rather the buyers of sex or, as in this case, those who profit from the sex work of others.

"The legislative goal is profound. It's an attack on the institution of prostitution," Carnegie said. "Sometimes it's necessary to deprive people of their rights to protect the vulnerable, the less powerful. … The commodification of sex is a societal blight."

Much of the defence argument was centred around the inability of sex workers to advertise their services.

The defence doesn't deny that Harvey and Anwar ran the escort agency, but they say their business kept sex trade workers safer than they could have been without the business. If they can't advertise, they can't screen clients, which makes the work more dangerous, Lockyer has said.

But Carnegie said there's nothing in the new laws that prevent sex trade workers from screening clients, they just can't do so the way they've traditionally done so — on websites which also sell their services.

"The tools for safety are present. They're not ideal, they might be more inconvenient, but they are there. There's nothing preventing the use of email or text messages to screen clients," Carnegie said.

"The loss of advertising is only a loss of profit. Let's not conflate advertising with safety planning. It doesn't have to be that way, it's just convenient that way, and convenience isn't the bar here."

Judge to review MMIWG report

Allowing the advertisement of the sale of sex would be "surreal" because the purchase of sex isn't legal, Carnegie argued.

"Would we allow traffickers of Schedule 1 substances to advertise, because drug traffickers need to be safe, and not allowing them to advertise online infringes on their safety? It's a surreal scenario."

Before making his decision, the judge agreed to review the recently released report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, as requested by Lockyer.  

The arguments are being heard in Kitchener, Ont., because the judge who was initially assigned the case was transferred there. 

Justice Thomas McKay is expected to take several months before rendering his decision.