Case Summary and Outcome

The Ontario Court of Justice held that three provisions of Canada’s Criminal Code, prohibiting advertising, procuring, or materially benefitting from sexual services, were unconstitutional. Hamad Anwar and Tiffany Harvey, a common law couple charged under Canada’s prostitution laws for operating an escort service, brought an application before the Court against the aforementioned provisions. Mr. Anwar and Ms. Harvey argued that the three criminal provisions together deprived sex workers of the protections of mainstream labor—such as the ability to rely on third parties for protection—and prevented them from forming their own associations.  The Court agreed that all the provisions were unconstitutional—finding that the prohibition against advertising violated the right to freedom of expression under Section 2(b) of the Canadian Charter of Rights and Freedoms (the Charter), and the prohibitions against procuring and materially benefitting from sexual services violated the rights to liberty and security of the person under Section 7 of the Charter.  It found that none of these violations were justified as “reasonable limits” under Section 1 of the Charter.  Therefore, according to the Court, the provisions were unconstitutional and could not be the basis for the criminal liability of the applicants.

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Facts

Hamad Anwar and Tiffany Harvey ran Fantasy World Escorts, an escort business, from December 6, 2014, to November 7, 2015.  The common law couple arranged for their employees to offer sexual services to clients, in exchange for money, in London, Ontario, as well as Calgary and Edmonton. As part of their business, Mr. Anwar and Ms. Harvey operated a website to promote their employees’ services, inform prospective clients of their terms of service and Code of Ethics (standards for client safety, hygiene, and behavior), and recruit new employees.

Mr. Anwar and Ms. Harvey were charged under three provisions of Canada’s Criminal Code, which prohibited advertising an offer to provide sexual services in exchange for money (Section 286.4), procuring those services (Section 286.3), and receiving a material benefit from them (Section 286.2).  These provisions were brought into the Criminal Code through the Protection of Communities and Exploited Persons Act (the PCEPA), which the Canadian Parliament passed on November 6, 2014. The PCEPA’s passage into law fundamentally changed Canada’s approach to criminalizing prostitution[1].

The PCEPA criminalized the purchase of sexual services and the communications that serve such purpose. It also criminalized the actions of third parties who economically benefit from selling sex. Despite the broad range of actions covered, the PCEPA also granted immunity for those advertising or providing their own sexual services, as well as for those aiding or abetting actions related to offering or providing their own sexual services.

Mr. Anwar and Ms. Harvey faced potential jail sentences after being charged under the mentioned Criminal Code provisions. The couple challenged all three provisions as unconstitutional, claiming that the laws together created a regime that blocked sex workers from lawfully using third parties to protect themselves and prevented them from lawfully creating systems of mutual protection. Furthermore, they alleged that the provisions violated specific rights protected by the Canadian Charter of Rights and Freedoms (the Charter).

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[1] This case summary generally uses the language used in the decision.

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Decision Overview

Justice A. T. McKay delivered the judgment for the Ontario Court of Justice. The main issue before the Court was whether three provisions of Canada’s Criminal Code, prohibiting advertising, procuring, and materially benefitting from someone’s sexual services, were unconstitutional, in light of the protections the Charter afforded to freedom of expression among other rights.

The applicants made several arguments against the constitutionality of the provisions.  First, they argued that the prohibition on advertising sexual services violated the right to freedom of expression, as enshrined in Section 2(b) of the Charter. Next, the applicants argued that the prohibition against procurement violated Section 7 of the Charter (Life, liberty and security of person) because it criminalized an overly broad range of actions. The applicants argued the provision did not draw a line between sex workers who exercise autonomy and those who are exploited—and prohibited sex workers from hiring managers or administrators. Finally, Mr. Anwar and Ms. Harvey argued that the prohibition against materially benefitting from sex violated Section 7 of the Charter and re-enacted and broadened an older, unconstitutional offense: “living [on] the avails” of prostitution.  The Supreme Court of Canada had ruled that this offense was a Section 7 violation in Canada (Attorney General) v. Bedford, 2013 SCC 72—a decision that spurred the passage of the PCEPA.  The applicants argued that “the net effect of the legislative scheme [was] to force sex workers to work in isolation and to proscribe others from assisting or associating with them.” [para. 186]

In addition, the applicants argued that the provisions criminalizing procurement and material benefit violated the right to freedom of association enshrined in Section 2(d) of the Charter but the Court engaged only minimally with these submissions, given its findings on the applicants’ other claims.

For its part, the Crown argued that the provisions were constitutional. It conceded that the advertising prohibition infringed Section 2(b) of the Charter, but argued that the infringement was justified as a “reasonable limit” because the provision was part of a regime of offenses aimed at reducing the harms of prostitution. Among other arguments, the Crown submitted that the infringement was proportional to the objectives of the PCEPA since it could allegedly deter the commodification of sexual services and prevent the exploitation of vulnerable persons. Next, in defense of the procurement offense, the Crown argued that the correct interpretation of the provision was much narrower than the applicants’ interpretation and that Parliament was entitled to a presumption that the legislation was enacted in conformity with the Charter. Finally, it argued that the material benefit prohibition was limited to criminalizing exploitative circumstances, and that “exemptions for liability for receiving a material benefit … protect third parties” who are not exploiting sex workers. [para. 187]

Advertising Offence (Section 286.4)

As noted by the Court, under Section 286.4 of the Criminal Code, “[e]veryone who knowingly advertises an offer to provide sexual services for consideration is guilty of (a) an indictable offense and liable to imprisonment for a term of not more than five years; or (b) an offense punishable on summary conviction and liable to imprisonment for a term of not more than 18 months.” [underlining added; paras. 91-92] As the Crown had conceded that the advertising prohibition breached the right to freedom of expression, as laid out in Section 2(b) of the Charter, the Court first examined whether the infringement was justified under Section 1 of the Charter—which allows restricting rights and freedoms under certain conditions.

According to the Court, to justify a Charter infringement, or “limit”, under Section 1, the Crown had the burden to establish that (1) the objective that the limit aims to achieve is sufficiently important to warrant overriding the constitutionally protected right or freedom; and (2) the measure chosen to achieve the objective is proportional, meaning the measure must be rationally connected to the objective, must be minimally impairing of the infringed right, and the salutary effects of the measure must outweigh any deleterious ones.

The Court found that the infringement of Section 2(b) was not justified under Section 1 of the Charter. It noted that Section 286.4 was a “penal provision that undermine[d] the liberty interest” by punishing those violating the law by “up to five years imprisonment.” [para. 121] The Court also observed that the law operate[d] as a “complete ban” on a form of expression, prohibiting “any content which constitute[d] an offer to provide sexual services for consideration” with “no limitations on its scope including place, means of communication or intended audience.” [para. 122]  The Court focused its analysis on the broad scope of the law, noting that it created liability for third parties if the Crown proved “knowledge of the existence of the ad” and “the fact that the ad related to the sale of sexual services,” even if “the assistance [provided by third parties was] minimal.” [para. 124]

The Court reasoned that advertising provided an important and effective gateway to many other important objectives favorable to the interests of sex workers, such as opening safe channels of communication with clients before meeting them—enabling them to clearly communicate the terms and conditions of their services (minimizing the risk of situational violence), allowing them to work independently, and facilitating the creation of social networks that could enhance their ability to take additional safety precautions.  The Court found 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.” [para. 128]  Hence, it considered that the advertising prohibition was not a justified reasonable limit on the right to freedom of expression.

Procurement Offence (Section 286.3)

Under Section 286.3(1) of the Criminal Code, “Everyone who procures a person to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(1), recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.” [underlining added; para. 91]

The Court examined whether the procurement provision infringed Section 7 of the Charter and whether that infringement was justified under Section 1. It rejected the Crown’s argument that the provision could be read narrowly and reasoned that the principles of statutory interpretation required an interpretation that recognized the provision prohibited a wide range of actions. The Court considered that Section 286.3 “clearly criminalize[d] any employee or owner of a managed business who might have any persuasive effect on an individual’s decision to engage in sex work.” [para. 167]  In light of this, it concluded that the procurement provision “denie[d] the Charter guarantees of liberty and security of the person” in an arbitrary, overbroad, and grossly disproportionate manner. [paras. 170-174]  Thus, the Court held that the procurement provision could not be saved by Section 1 of the Charter as a reasonable limit on the impacted rights. [paras. 177-178]

Since the Court found that the procurement provision violated Section 7 of the Charter, it did not address whether the provision also violated the right to freedom of association under Section 2(d) of the Charter.

Material Benefit Offence (Section 286.2)

Under Section 286.2(1) of the Criminal Code, “Everyone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(1), is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.” [underlining added; para. 91] Furthermore, Section 286.2(6) considers that “If a person is convicted of an offence under this section, the court that imposes the sentence shall consider as an aggravating factor the fact that that person received the benefit in the context of a commercial enterprise that offers sexual services for consideration.” [para. 91]

Addressing the final claim, the Court examined whether the material benefit provision unjustifiably infringed the liberty and security of the person interests protected by Section 7 of the Charter. As noted by the Court, the law effectively replaced former Section 212(j) of the Criminal Code, which provided that everyone who lived on the “avails of prostitution of another person” was guilty of an indictable offense. [para. 180]  It explained that in Canada (Attorney General) v. Bedford, the Supreme Court of Canada ruled that this provision was unconstitutional because it prevented sex workers from “hiring bodyguards, drivers and receptionists[…] By denying [sex workers] access to those security-enhancing safeguards, the law[…] negatively impacted their security of person.” [para. 180]

For the Court, a plain reading of the provision showed that it was a broad prohibition, covering financial or other material benefits, obtained by or derived directly or indirectly from the sale of sexual services.  Although the Court said that it was not persuaded by the applicants’ reading of the statute—which suggested that the term “commercial enterprises” would capture “any two people who work together to generate revenue” [para. 197]—it acknowledged that the provision could be a “minefield” for sex workers to successfully navigate while working cooperatively with other individuals.

Moreover, the Court held that the overall effect of the prohibition on receiving material benefits from the sex industry—notwithstanding its exceptions—was to prohibit sex workers from working with third-party managers and make it extremely difficult for them to pool their resources together in ways that minimize risk to their physical and emotional health.  The material benefits provision, therefore, impacted both the liberty and security of the person in ways contrary to the principles of fundamental justice, the Court opined. Since the aforementioned criminalization actually made sex work more dangerous in some ways, the Court concluded that the provision could not be upheld as a reasonable limit under Section 1 of the Charter.

Taking into account that the Court found that the material benefits provision violated Section 7 of the Charter, it did not address whether the provision also violated the right to freedom of association under Section 2(d) of the Charter.

In conclusion, the Court determined that the prohibitions challenged by the applicants violated the Charter and that none of them were justified as a reasonable limit. Therefore, the Court declared that the provisions were unconstitutional and could not serve as the basis for the criminal liability of the applicants.

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