Lawyers argue Canada's prostitution laws violate sex workers' Charter rights

Canada's prostitution laws are based on ideology and the flawed belief that sex work is inherently exploitative and harmful, lawyers challenging the laws' constitutionality argued in a Kitchener, Ont., court on Tuesday. 

The lawyers, James Lockyer and Jack Gemmell, represent two escort agency owners from London, Ont., who were busted in 2015 and charged with procuring, advertising and materially benefiting from the sale of someone else's sexual services.   

In the first test case of its kind, the lawyers argue the laws, enacted in 2014 under Prime Minister Stephen Harper's government, violate the Charter of Rights and Freedoms of sex workers by not ensuring their "security of the person." 

"When you look at this from the perspective of the sex worker, they can barely take a step left or right without being charged with something," said Lockyer in his closing arguments. "They can't make themselves safe and they can't hire third parties to do it for them." 

The case brings into the question whether the laws actually endanger workers in the sex trade.

"We are arguing this case entirely from the perspective of the sex workers," said Lockyer.

He's defending the owners of Fantasy World Escorts, Tiffany Harvey and Hamad Anwar, who were charged in November 2015 after their agency was shut down by police.

Lockyer doesn't deny his clients ran the agency but says they can't be convicted because the charges are unconstitutional.

"This application, from Day 1, has had nothing to do with the economic rights of the applicants. It has to do with whether the charges are unconstitutional because they infringe on the Section 7 rights of the sex workers," Lockyer said Tuesday in court.

"We have to face who we are dealing with here, and that is people who need help to do this work safely. They don't have the personal ability to do that themselves and they don't have the legal ability to get a third party to do it for them." 

The Crown's position is that prostitution laws aren't meant to protect sex-trade workers, but rather criminalize those who buy sexual services and therefore decrease demand for the work.

The Crown will present its closing arguments Wednesday morning. 

Prostitution laws enacted in 2014

Harvey and Anwar were in court Tuesday, along with their family members, as well as representatives from Safe Space, a drop-in and advocacy centre for sex-trade workers in London, Ont.. 

The two accused initially faced a long list of charges, including human trafficking, but those charges were eventually dropped by the Crown.

Harvey now faces one charge of materially benefiting from the sale of someone's sexual services. Anwar faces the same charge and a charge of procuring and advertising someone else's sexual services. 

Those three offences are relatively new, brought in under Canada's 2014 prostitution law, Bill C-36, which criminalizes the purchasing of sex but decriminalizes its sale. 

Laws 'quite problematic'

The case is being closely watched by those who oppose and champion Canada's prostitution laws, some travelling to Kitchener to observe the proceedings.

Advocates for sex-trade workers have been calling for the new prostitution laws to be repealed since they were brought in by the Harper government. 

Opponents say that, by criminalizing people who hire sex-trade workers, the laws put these workers at risk. They argue clients are less likely to give their real names, for example, so sex-trade workers can't screen them before a meeting. 

"I think the laws are quite problematic. They increase vulnerability to violence," said Chris Bruckert, a criminology professor at the University of Ottawa whose work focuses on the rights of people in the sex trade.  

"Third parties (such as escort agencies) are not always excellent, but they provide screening, they ensure that you're in contact with people, quite simply having someone know where you are and that the client knows that someone knows where you are, that reduces risk."

New laws create dangers, lawyer says

The trial for this case was held in London, but due to scheduling conflicts, the judge moved the two-day sentencing hearing to Kitchener.

The defence was expected to take Tuesday for its final arguments, with the Crown making its case Wednesday.

Earlier on Tuesday, Lockyer asked Justice Thomas McKay to look at several new studies, research papers and book chapters that look at the effects of Bill C-36 on sex-trade workers.

"Because prostitution laws are less than five years old, there are new studies coming out about its effects," Lockyer said.

The Crown, led by Michael Carnegie, disagrees, saying it's not right to admit new studies without having experts explain them and opening them up to cross-examination.

"The efforts to have a full evidentiary record is laudable, but the evidentiary part of this hearing ended eight or nine months ago," Carnegie said. 

The judge said he would have to reserve his decision about the new studies until later. 

During the trial, Lockyer called two witnesses, both academics, whose studies he says prove the new laws force the sex trade underground and make it more dangerous. 

The Crown's witnesses argued the sex trade is inherently violent and based on a foundation of inequality, and punishing the purchasing of such services reduces demand. 

Those who are watching the case closely say it could eventually be decided in the Supreme Court of Canada.