Lawyers in charter challenge argue advertising protects sex-trade workers

The first court challenge to Canada's new prostitution law will likely not conclude until the fall, after arguments in a Kitchener, Ont., courtroom ran long on Wednesday. 

Justice Thomas McKay of the Ontario Court of Justice is not expected to return his decision until months after the proceedings finally wrap up on June 13. 

"I expect my decision, when it comes, will be a lengthy one," McKay told the court at the end of the day. 

Toronto lawyer Jack Gemmell and his partner James Lockyer tried to make the case in their closing arguments that the law, specifically the Protection of Communities and Exploited Persons Act, is unconstitutional under the Charter of Rights and Freedoms.

They're defending Tiffany Harvey and Hamad Anwar, who ran Fantasy World Escorts in London, Ont., until it was raided by police and shut down in 2015.

The pair was charged with procuring, advertising and materially benefiting from the sale of someone else's sexual services, all of which are illegal under the law, which was passed in 2014. 

Gemmel and Lockyer raised advertising rules as part of their final arguments on Wednesday. 

The law effectively bans advertising sexual services Gemmell said, and that puts sex-trade workers at risk. Sex workers are allowed to advertise their own sexual services, but third parties such as websites or newspapers that host such advertisements are prohibited from doing so. 

"Advertising in advance reduces the chance of conflict. The client gets to know exactly what services are being provided," Gemmell said.

The defence team argues the charges against their clients put sex-trade workers at risk, because they prevent them from working with third parties such as escort agencies to mitigate risk, therefore violating the sex-trade workers' Section 7 charter right to security of the person.

Crown makes its case

After the defence presented its final arguments, Crown attorneys defended the law.

They say the law was not meant to protect sex-trade workers, but rather discourage people from entering the sex trade, which is inherently risky.

"This case is all about the rights of the prostitutes. It is not about strippers or people in massage parlours, and it is not about which policy model of prostitution legislation is better," said assistant Crown attorney Brian White.

"It was the job of Parliament to determine which policy is better, and it has been decided."  

The law, based on those in other countries, follow what is known as the Nordic Model. It outlaws the purchasing of sexual services, but allow the selling of it, in an effort to criminalize those who buy sexual services and therefore decrease demand. 

The law defines a "material benefit" as one that derives from a commercial enterprise, and the commercial enterprise between a sex-trade worker and an escort-agency owner, for example, is a "parasitic relationship," White said. 

There is no violation of any rights, he argued. 

This is the first constitutional challenge of the four-year-old prostitution laws, and the case is being closely watched around the country by legal experts and those who advocate for and against the new law.

It will be up to McKay to determine if there is a constitutional violation. 

If he rules there is, Harvey and Anwar will be acquitted. If not, the pair will be sentenced. 

It's unclear how much time they might face. The law includes no mandatory minimum sentence, and neither side has made sentencing submissions.