BCCLA disappointed by Ontario Superior Court of Justice decision setting back the rights of Canadian sex workers
September 19, 2023
Toronto, ON – The BC Civil Liberties Association (BCCLA) is disappointed by the Ontario Superior Court of Justice (ONSC) decision in Canadian Alliance for Sex Work Law Reform v. Canada, 2023 ONSC 5197, released on September 18, 2023. The ONSC found that the criminal offences related to sex work enacted under the Protection of Communities and Exploited Persons Act (PCEPA) are constitutionally valid. PCEPA was brought into force in 2014 following the Supreme Court of Canada’s decision Bedford, where the previous laws criminalizing sex work were found to be unconstitutional.
The ONSC found that PCEPA did not violate sex workers’ Charter rights to life, liberty, and security of the person under section 7, freedom of association and expression under s. 2, or equality under s. 15. In its decision the ONSC held that the collateral harms caused to sex workers by PCEPA were justified by the goals of reducing demand, preventing exploitation, and enhancing safety.
The BCCLA intervened at the ONSC to address and protect sex workers’ section 7 Charter rights to life, liberty, and security of the person. The BCCLA submitted that the principle of substantive equality required the Court to consider the intersectional harms faced by the most vulnerable sex workers, including those who are Indigenous, trans, non-binary, racialized, living with disabilities, and/or living in poverty. This means the Court should assess s. 7 rights in the context of the “on the ground” experience of sex workers, as affected by the complex intersection of individual identity and circumstance.
The BCCLA is saddened that the ONSC failed to give serious weight to the evidence provided directly by sex workers harmed by the criminalization of their work. Rather than taking the substantive equality approach urged by the BCCLA, the ONSC focused on a lack of quantitative data showing that PCEPA has caused enough harm to warrant being struck down. Sadly, this approach further marginalizes the voices of the very people the law is meant to protect.
Vibert Jack, BCCLA Litigation Director for the BCCLA: “This decision represents a major setback in the fight for sex workers’ rights, but it is certainly not the end of the battle. The BCCLA will continue to stand in solidarity with sex workers as they continue to fight for their rights to be recognized and protected.”
The BCCLA is represented by Emily Lam, Akosua Matthews and Ruth Wellen of Kastner Lam LLP.