CLF has been granted leave to intervene by the Supreme Court of Canada to defend Canada’s laws combatting sexual exploitation.
CASE BACKGROUND
In 2021, two men were convicted as parties of the following prostitution-related offences: obtaining a material benefit from sexual services and procuring a person to offer or provide sexual services (ss. 286.2(1) and 286.3(1) of the Criminal Code). However, the trial judge subsequently determined that those provisions infringed s. 7 Charter rights, and struck down the provisions. The Alberta Court of Appeal disagreed, set aside the declarations of invalidity, and entered convictions against the men.
Those men have now appealed, as of right, to the Supreme Court of Canada, asking the court to find these sections unconstitutional. They also are asking the apex court to find that Parliament’s objective of eliminating sex work is illegitimate because, they argue, Parliament should have based their response to harms associated with the commercial exchange of sex on a different understanding of that activity, as a form of “work” rather than “exploitation”.
A central question in this appeal is whether a law can be invalidated because a court disagrees with the normative and ethical foundations for it. Christian Legal Fellowship is intervening in the case and respectfully submits that the answer to this question must be “no”.
In effect, the appellants are asking the Court to decide that Parliament must understand and treat the activity of exchanging sex for money in one specific way and not another. This would require the Court to take on the role of policymaker and to find that Canada cannot pursue a policy approach to prostitution currently in force in Sweden, Norway, Republic of Iceland, Ireland, France, Northern Ireland, and Israel, and endorsed by the European Parliament, the Council of Europe, and the UN Committee on the Elimination of Discrimination against Women.
This approach, known as the Nordic Model, prohibits the purchase of sex but does not penalize the seller, recognizing that prostitution is inherently harmful and highly gendered, as “male customers of generally higher wealth, status, and power exploit (mostly) female sellers of lower status, wealth, and power.” This model was recently affirmed by the UN Special Rapporteur on violence against women and girls and upheld by the European Court of Human Rights, as well as the Alberta Court of Appeal, which described it as follows:
“This model considers the sex trade to be a form of sexual exploitation and targets those who create the demand for prostitution and those who capitalize on it. Prostitution is no longer viewed as a nuisance, but as something inherently exploitative that must be denounced and discouraged.”
CLF’s Intervention
Christian Legal Fellowship recently filed its intervention factum in this case (R. v. Kloubakov) at the Supreme Court of Canada. CLF argues that three Canadian legal doctrines are particularly relevant to assessing whether the Nordic Model is constitutionally sound: the principle of parliamentary sovereignty, the separation of powers, and constitutional dialogue between the legislature and the courts. Together, these three principles, as interpreted by the courts, preclude “judicial second-guessing” of normative judgments within the legislature’s institutional jurisdiction. Provided those judgments are reasonable, and within the bounds of the Constitution, the courts will respect the legislature’s findings. As the Supreme Court recently affirmed:
…courts cannot declare a statute unconstitutional simply because they disagree with legislative policy, or think a better policy may be available; courts are “not fitted” to undertake the inquiries that a proper policy review entails.
These constitutional concepts are particularly important when dealing with legislation on complex social policy issues enacted by Parliament in response to a Court ruling (in this case, Parliament’s 2014 prostitution law, the Protection of Communities and Exploited Persons Act or “PCEPA”) in response to the Supreme Court of Canada’s Bedford decision which struck down Canada’s former prostitution law). The preamble to the PCEPA makes Parliament’s purpose clear with straightforward language. The preamble outlines Parliament’s “grave concerns about the exploitation that is inherent in prostitution” and “the social harm caused by the objectification of the human body and the commodification of sexual activity”. It emphasizes the importance of protecting “human dignity and the equality of all Canadians by discouraging prostitution, which has a disproportionate impact on women and children” and that an important step to take is “to denounce and prohibit the purchase of sexual services because it creates a demand for prostitution”.
Other Canadian courts have upheld PCEPA’s provisions, including the Ontario Court of Appeal. In a recent decision, the Ontario Superior Court also concluded that PCEPA is constitutional. After an extensive review of the evidence, the court found ample support for Parliament’s conclusion that prostitution is inherently harmful, particularly in light of the ways that it has been found to exploit conditions of inequality along intersecting axes of age, race/Indigeneity, economic status, and – especially – sex/gender. The court made the following findings:
““where a customer purchases sex, there is a significant possibility that the sex worker has been trafficked, manipulated, lured, forced, and/or coerced into providing sexual services, and in continuing to provide sexual services…there is also a significant possibility that an exploiter or trafficker has used manipulation and/or violence to control that sex worker, take her earnings, and impose a “price” on her to leave the sex trade.”
“A significant number of women and girls lured or coerced into sex work are Indigenous or from other vulnerable racialized or sexual minorities”
“For the most part, female sex workers have less education, less economic power, and lower socio-economic status than their male customers”
“sex workers are overwhelmingly female. Customers are overwhelmingly male”
“there is a very strong link between sex work and human trafficking… violence and the threat of violence are present in the everyday lives of sex workers”
“A significant number of women and girls lured or coerced into sex work have pre-existing vulnerabilities, including contact with the child protection and foster care system; mental health or cognitive challenges; substance abuse challenges; or a combination of all of these things.””
For all of these reasons, CLF maintains that PCEPA’s policy goals are legitimate ones for Parliament to advance and courts should be cautious in too quickly striking down such legislation.
All factums filed in the case, which will be heard by the Supreme Court on November 12-13, 2024, can be accessed here.
Read more about CLF’s work to combat sexual exploitation and trafficking:
CLF’s review of the Justice Committee’s Report on the Protection of Communities and Exploited Persons Act
CLF’s submissions to the Standing Committee on Justice and Human Rights re PCEPA (English, French)
CLF’s participation in the International Centre for Criminal Law Reform & Criminal Justice Policy’s consultations re the Palermo Protocol
CLF’s submissions to the Standing Committee on Access to Information, Privacy and Ethics re online exploitation
CLF’s submissions to the Standing Committee on Justice and Human Rights’ National Consultation on Justice and Human Rights (English and French).