Reasons for Decision

COURT FILE NO.: CR-18-0980 DATE: 2023 01 13

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Plaintiffs

• and -

MR. WILLIAMS Defendants

COUNSEL: G. Hendry for the Respondent, Crown A Romain & P. Kott for the Applicant

HEARD: 22 February, 12 April, 3 & 4 August, and 19 October 2022

REASONS FOR DECISION IN THE APPLICANT’S APPLICATION CHALLENGE TO S. 286.1(1) OF THE CRIMINAL CODE AS VIOLATING S. 7 AND S. 2(B) OF THE CHARTER.

Introduction

1 After 11 days of trial, the jury convicted Mr. Williams of:

a) holding, concealing, or harboring SB, or exercising control direction or influence over her under s. 286.3(1) of the Criminal Code of Canada , and

b) receiving material benefit from the sale of SB’s sexual services under s. 286.1 (1) , contrary to s. 286.2 (1) of the Criminal Code of Canada .

2 Mr. Williams brought an application before trial challenging the constitutionality of s.s 286.1, 282.2, 286.3, and 286.4 of the Criminal Code . Those applications were postponed pending the jury’s verdict and postponed further pending the Court of Appeal’s release of its decision in R. v. NS, now reported at 2022 ONCA 160 .

3 Since the Court of Appeal in NS held that s. 286.2, 286.3, and 286.4, were constitutional, the only issue pursued on this Application was whether s. 286.1(1) was constitutional under s. 7 and 2(b) of the Charter .

4 S. 286.1(1) provides that everyone who obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person is guilty of an offence. S. 286.5 says that the seller of sexual services is immune from prosecution with respect to communication with respect to the sale of his or her sexual services.

The Parties’ Positions

Mr. Williams

5 Mr. Williams argued that the criminalization of communication by anyone with respect to the purchase of sexual services (other than the seller of sexual services) under s. 286.1 (1) violates s. 7 of the Charter in that it is overbroad and disproportionate. Further, Mr. Williams argued that s. 286.1 it violated his Charter s. 2(b) right of freedom of expression, which was not saved by s. 1.

6 Mr. Williams argued that none of the issues outlined in Bedford with respect to the safety of sellers of sexual services have been resolved by s. 286.1 (1) . They have been exacerbated. The effect of criminalizing communication by the potential purchaser of sexual services is that a seller of sexual service’s ability to engage in communications with a prospective client that would permit them to reduce the risk of violence is impaired, just as it was pre- Bedford . The effect of criminalizing the prospective client’s communications is that those communications are displaced to more isolated and secluded areas, and are carried on in vague, coded language, or not held at all, thereby placing the seller in more vulnerable situations. By inhibiting communications over the sale of sexual services by one party to the discussion impairs the seller’s ability to assess the risk of violence or disease at the hands of the purchaser, and thereby impairing the seller’s ability to decide whether to sell her services to that perspective prospective purchaser.

7 Mr. Williams argued that s. 286.1, by deliberately shielding the sellers of sexual services from liability, does not encourage sellers of sexual services to avail themselves of safety enhancing measures identified in Bedford such as offering services from a fixed indoor location, hiring persons who may enhance safety, and the ability to negotiate conditions for the sale of sexual services in a public place. Therefore, it is overbroad. The prohibition goes too far and actively inhibits the conduct that s. 286.1 was designed to protect.

8 Further, Mr. Williams argued that s. 286.1 is grossly disproportionate. It contemplates that sellers of sexual services will continue to engage in the sale of sexual services but the effect of s. 286.is that they sell their services with high levels of risk in terms of exposure to situational and predatory violence, and the heightened risk of disease, all brought about by the inability to negotiate terms, conditions, and boundaries with respect to the sale of sexual services. This effect is entirely disproportionate to any discernible purpose that can be attributed to s. 286.1.

9 With respect to s. 2(b) of the Charter , the communication prohibited by s. 286.1, by others with respect to the purchase of sexual services (other than those of the seller) is a form of expression protected by s. 2(b) and is not negated by any inherent limitation. The effect of the legislation is to inhibit communication between sellers of sexual services and prospective clients or other third parties. S. 2(b) protects not only the right a person to express him or herself, but also the concomitant right of another to receive information that information. This breach is not saved by S. 1 of the Charter.

The Crown

10 The Crown argued that the application should be dismissed for several reasons. First the hypothetical proffered must be grounded in experience and common sense. The one provided in this case is hypothetical.

11 Second, the Crown argued that s. 7 is not engaged. To engage the security of person protections, the applicant must demonstrate that there is a real and nonspeculative link between the impugned government action and the prejudice the individual has suffered. In this case no such link can be established based on the hypothetical put forward.

12 Third, s. 286.1 is not overly broad or grossly disproportionate. This question has been answered by the Court of Appeal in NS. The applicant’s case is based on the assumption that the safety related purposes of PCEPA are primary considerations. The Court of Appeal has indicated that they are secondary purposes. The law is not overbroad insofar as it does not include conduct bears no connection to the objectives of the legislation. Further gross disproportionality applies only to extreme cases, for instance where the seriousness of the deprivation is totally out of line with the objective of the measure. This is not the case in this case.

13 Finally, the crown argued that no one’s s. 2(b) right is infringed, and if it is, it is saved by s. 1.

Conclusion

14 I find that s. 286.1 does not offend s. 7 of the Charter. S. 286.1 offends s. 2(b) of the Charter, but it is saved by s. 1.

The Hypothetical

15 Mr. Williams proffered the following hypothetical on this application:

A female sex worker provides sexual services for consideration in various outdoor settings. Lacking the wherewithal to communicate her characteristics, boundaries, or rates through advertisements, to hire staff to assist with screening and security or to secure a fixed indoor location to work out of, she works from various outdoor locations, offering her services to passersby. As potential clients are unable to engage in meaningful communications regarding the purchase of sexual services in public, she is forced to work in remote, secluded locations, and cannot engage in any meaningful communication with their clients prior to accompanying them to their vehicles where the sexual services are to be provided .

Evidence on the Application

16 As in R. v. NS , the Applicant called an expert, Chris Atchison, whose qualifications and evidence the Crown did not contest. The Crown led no evidence.

17 On consent, Mr. Achison was qualified to provide an opinion to the court on criminology including the structure, operation and composition of the commercial sex trade, and the effects that the legal regime governing the sex trade has had on the sex trade. It was conceded that he would not be giving legal opinions.

18 In support of his application, Mr. Achison filed affidavits sworn on 14 June 2021 and 12 April 2022, which are marked as exhibits two and three respectively, and the contents of both of which he adopted as part of his viva voce evidence. His CV was also placed before the court.

19 Mr. Acheson has studied the sex trade for 27 years and given evidence in six criminal proceedings excluding the proceeding for this Court. He was also a witness before the Parliamentary Committee studying bill C 36 which became the Protection of Communities and Exploited Persons Act (PCEPA).

20 With respect to communication between sellers of sexual services and their potential clients, pre-bill 36, he said the following, based on his research:

a) sellers of sexual services sell a wide range of sexual services and provide those services on the street, out of a commercial establishment such as a bar or massage parlor, as escorts for an agency, or out of a brothel or bathhouse. Some work independently, and others through a manager or “pimp”.

b) While sexual services usually involve physical contact between the seller and purchaser, they also include telephone sex work, appearing on a web broadcast or as an actor in a pornographic movie or video

c) While the consideration paid is usually money, it can also be drugs or other things by way of barter.

d) 80-90% of sex work is off street venues. 75-76% of sellers of sexual services are women, 17-18% are men and 7% are transgender or other. The majority of purchasers are men, approximately 30% of which are bisexual or gay men seeking sexual services from bisexual or gay sellers.

e) Most of those responding to Mr. Achison’s questionnaires or surveys, or whom he interviewed, work independently or are self-employed. The majority indicated that at some point they were employed by a third party.

f) The risk of violence for sellers of sexual services depends on the type of services sold and where the service is provided. Street-based sale and/or provision of sexual services carries the highest risk of violence. Such violence is either predatory (the purchaser is looking for a victim) or situational (the violence arises in the circumstances). Street- based sellers of sexual services are a fraction of the commercial sex industry.

g) Sellers of sexual services who work from an indoor location have a lower risk of situational violence because they can speak to their clients privately, negotiate fees and services, set boundaries with respect to services (thereby controlling expectations), and take advantage of the benefits of indoor work such as security.

h) Many sellers of sexual services entered the sex trade voluntarily for social, economic, and personal reasons. Many reported feeling exploited in the sex trade. Some reported specifically that they were exploited by third parties, although third parties did not play large part in street based or off street based commercial sex work.

i) Selling sexual services carries a social stigma causing sellers to hide their activities from society, friends, and family, thereby causing damage to the seller’s emotional, psychological and physical health.

j) Sellers of sexual services tend to not report incidences of violence, and they fear arrest.

k) The fear of arrest influences how sellers and purchasers communicate, whether in person or online, or through newspapers or other media. Online or media ads are usually the first contact between the seller and purchaser. Communication often proceeds through chat rooms or other electronic means, which permits a private space to negotiate the services to be provided, the cost of those services, and the terms and conditions under which the services will be provided.

l) With street-based sellers of sexual services, however, the communications tend to take place in remote locations and only involve the seller and purchaser. The language used is imprecise, involving innuendo or coded language. The result is often a misunderstanding of the services to be provided and the terms and conditions surrounding their provision. When purchaser expectations are not met, violence may ensue.

m) While research from shows that when the sale of sexual services is criminalized, the health and safety of sellers of sexual services suffers, violence increases, and the violence is usually is not reported. There is no research concerning on the effectiveness of criminalizing sex work, or its effect on public health and safety.

n) Technology became more important in advertising the sale of sexual services, and the terms and conditions of the sale of such services.

21 Mr. Achison testified that after Bill 36, for street-based sellers, little has changed. Criminalizing communication by the prospective purchaser increases the purchaser’s fear of detection and arrest. Therefore, the purchaser tends to force discussions between sellers and prospective purchasers into remote and isolated locations, using language that is vague or coded.

22 Mr. Achison conceded that his research in Canada has involved small numbers of participants, and those participants comprise more community organizations that assist sellers of sexual services, social and academic organizations, or the government than individual sellers. Because research samples in Canada are small, purely statistical data is limited. Consequently, Mr Achison uses other research techniques and modalities that allow him to apply his research done on a small group to general population, while controlling for bias and trustworthiness of the results.

23 Mr. Achison opined that the sex industry is a very adaptive industry. The PCEPA amendments introduced uncertainty into the law. Accordingly, in face of the uncertainty of the new changes to the law, the following occurred:

a) There was a general migration from visible to invisible communication.

b) Online communications moved to less visible forms. Many Internet or online spaces moved off shared provider formats. Online policies changed, restricting the sort of content used by those in the sex trade, to avoid liability by the internet provider.

c) There was a change in person-to-person interactions. Potential purchasers of sexual services were more reluctant to give information and communicate openly for fear of legal liability. The more risk averse the potential purchaser the less free the communication.

d) Communications became more antagonistic between potential purchasers and sellers.

e) The new law had a chilling effect upon relationships that made them more amenable to conflict. Because of the criminalization of communication by purchasers, a potential purchaser and a seller of sexual services could not negotiate openly with respect expectations price, use of alcohol and drugs, and other terms. The uncertainty of the parameters of the relationships, along with the physical space of the interaction made violence more likely because of differences in expectations that are not met in the actual transaction.

f) As the relationship between the potential purchaser and seller of sexual services became more uncertain, they become more antagonistic, leading to a further deterioration in the quality of communication.

g) Because of the changes in the law, the participants in the transactions potentially see each other as possible risks because of the inability to communicate. The participants must look at every interaction to assess the risk of the transaction based on their experiences. The seller looks for “red flags” to assess risk in the transaction. Any restriction on communication makes this risk assessment more difficult and more flawed. The potential purchaser also looks for red flags with respect to risk action and this includes the risk of a robbery by the provider or arrest.

h) The effect of the criminalization of communication by others than the seller with respect to the purchase of sexual serviced by s. 286.1 allows the seller to relay information to the buyer but does not allow the buyer to question the seller, or to advise the seller of acceptance or rejection of the terms offered. Any communication by the potential purchaser exposes the potential purchaser to arrest. The effect of this is that the seller cannot screen potential purchasers with respect to the risks of violence or disease.

i) The language of the transaction continues to be vague, and in various forms of code. Therefore, it is impossible to be clear with respect to the parameters of the provision of the service, the price, or the risks of the transaction with the potential purchaser.

j) The potential for situational violence has increased. In the absence of clear, unambiguous communication, the likelihood increases that there is a difference in expectations between the potential purchaser and seller. When the expectations of the potential purchaser are not met, the potential for situational violence increases.

k) With the changes in communication, especially because of the Internet, there is a general migration of sellers of sexual services from the street to the Internet, leaving only the most vulnerable sellers working on the street. These sellers tend to be gay, transsexual, and aboriginal sellers, the highest risk of populations. For these populations, violence and victimization remain a higher risk because of their vulnerability based on their physical, social, and ethnic situations. They become easy targets for opportunistic or predatory abusers. They are forced into remote and secluded areas by their clients who seek to avoid detection and arrest under the new legislation.

l) Street-based sellers of sexual services suffer significant social stigma. They are seen as disposable victims. They are the most economic leave vulnerable people. Because of the inability to communicate openly with potential purchasers, they have difficulty mitigating risks, by insisting on condoms, or by managing exposures to physical dangers.

m) Mr. Atchison conceded that his studies did not specifically address the question of whether s. 286.1 increased or reduced the risk of violence or disease. Instead, he looked at “collective influence of law on relational dynamics”. He conceded that he concludes that a change in client willingness to be open in communication was probably affected by the PCEPA amendments but cannot say which amendments drove this. He cannot draw a causal link between any specific amendment, the safety and health concerns, and the effects on those concerns of the amendment.

n) Mr. Atchison conceded that communication was restricted by the pre- Bedford legislation, but only to the extent that took place in a public place. Insofar as street-based sellers of sexual services are concerned, the legislation criminalized any discussion with respect to the purchase of sexual services.

o) He has done no research that says whether sex industry is safer or that it has shrunk since the PCEPA amendments. Nevertheless, he concludes that any restriction on conditions in which a seller interacts with potential purchaser or criminalizes discussions by the potential purchaser, shifts the legal landscape in that the potential purchaser wishes to avoid detection and becomes less open. The relationship becomes more antagonistic morning. In order to have more open conversations, the seller is forced to move into more isolated and remote areas thereby increasing the risk of violence. Further, they cannot negotiate the parameters of the provision of services. Much of his opinion is based on anecdotal evidence from discussions with sellers of sexual services.

24 Generally, I found Mr. Atchison’s evidence prolix, imprecise, circumambulatory, and laden with unnecessary jargon. His evidence consumed almost 2 days because of his repetitiveness. It ought to have taken one day.

25 Notwithstanding my concerns about Mr. Atchison’s evidence, his was the only evidence available to the court. He conceded that his findings and those of the studies on which he relied provide only qualitative evidence, for the most part because of the small sample sizes in Canada. Accordingly, it is not possible to have statistically accurate, quantitative findings. It is implicit in his evidence, and he concedes that his view is that the sale of sexual services is not immoral and should not be criminalized, and that arrangements between purchasers and sellers of sexual services are simple commercial transactions. I do not conclude that his views mean that his evidence should be rejected as biased. Rather, his evidence must be accepted in light of his opinion.

The Legal Framework

Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 SCR 1101

26 Until the Supreme Court of Canada’s decision in Bedford , the applicable Criminal Code provision that addressed communication with respect to the purchase or sale of sexual service was s. 213 (1) , which read:

(1) Every person who in a public place or in any place open to public view

(c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person

for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction.

27 In Bedford , the three accused were current or former prostitutes who brought an application seeking declarations that three provisions of the Criminal Code which criminalize various activities related to prostitution, infringed their rights under s. 7 of the Charter . One of these was s. 213.

28 The Supreme Court held that the three impugned provisions, primarily concerned with preventing public nuisance as well as the exploitation of prostitutes, infringed the s. 7 rights of prostitutes by depriving them of security of the person in a manner that is not in accordance with the principles of fundamental justice. Since the Supreme Court upheld the finding of a violation of the accused’s s. 7 rights, it did not go on to consider the possible violation of any rights under s. 2 of the Charter .

29 The Court held that prostitution was a legal activity. The impugned Criminal Code provisions, however, imposed dangerous conditions on prostitution, and prevented people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks.

30 The Court agreed with the judge at first instance that face-to-face communication is an essential tool in enhancing street prostitutes’ safety. Such communication, which the law prohibited, allowed prostitutes to screen prospective clients for intoxication or propensity to violence, which can reduce the risks they faced. Accordingly, the accused’s’ s. 7 rights were engaged.

31 The Court agreed with the application judge who found that s. 213 had the effect of displacing prostitutes from familiar areas, where they may be supported by friends and regular customers, to more isolated areas, thereby making them more vulnerable. S. 213 prohibited communication that would allow street prostitutes to increase their safety by screening clients and setting terms for the use of condoms or safe houses. In these ways, it significantly increases the risks they faced.

32 The Court held that the purpose of the communication prohibition in s. 213(1)(c) was not to eliminate street prostitution for its own sake, but to take prostitution off the streets and out of public view to prevent the nuisance that street prostitution caused. The provision’s negative impact on the safety and lives of street prostitutes, who were prevented by s. 213 from screening potential clients for intoxication and propensity to violence, was a grossly disproportionate response to the possibility of nuisance caused by street prostitution.

33 The Supreme Court accepted Dickson, C.J.’s discussion of s. 213, from Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 (“Prostitution Reference”):

Like Wilson J., I would characterize the legislative objective of s. 195.1(1)(c) [now s. 213(1)(c)] in the following manner: the provision is meant to address solicitation in public places and, to that end, seeks to eradicate the various forms of social nuisance arising from the public display of the sale of sex. My colleague Lamer J. finds that s. 195.1(1)(c) is truly directed towards curbing the exposure of prostitution and related violence, drugs and crime to potentially vulnerable young people, and towards eliminating the victimization and economic disadvantage that prostitution, and especially street soliciting, represents for women. I do not share the view that the legislative objective can be characterized so broadly. In prohibiting sales of sexual services in public, the legislation does not attempt, at least in any direct manner, to address the exploitation, degradation and subordination of women that are part of the contemporary reality of prostitution. Rather, in my view, the legislation is aimed at taking solicitation for the purposes of prostitution off the streets and out of public view.

The Criminal Code provision subject to attack in these proceedings clearly responds to the concerns of home-owners, businesses, and the residents of urban neighbourhoods. Public solicitation for the purposes of prostitution is closely associated with street congestion and noise, oral harassment of non-participants and general detrimental effects on passers-by or bystanders, especially children. [pp. 1134-35]

R. v. N.S. and the Purpose of the PCEPA

34 NS is the first appellate consideration of the PCEPA amendments to the Criminal Code. In NS , the court addressed s.s 286.2, 286.3, and 286.4 of the PCEPA amendments to the Criminal Code . It did not deal with s. 286.1, saying specifically that it was left to another day. Notwithstanding this fact, the court’s decision in NS is instructive and binds this court.

35 The significant findings and statements in NS , for present purposes, are as follows:

a) the PCEPA amendments are in specific response to the Supreme Court of Canada’s decision in Bedford and followed a considerable period of broad consultations (para. 1).

b) Whereas in Bedford prostitution was not illegal, under the PCEPA prostitution is illegal. Parliament rejected the view that the sellers of sexual services were merely “workers” and that the purchase and sale of sexual services were simply commercial transactions. Parliament, in adopting the so-called “Nordic Model” viewed the sex trade as a form of sexual exploitation, and decriminalization and legalization of prostitution led to increased human trafficking for the purposes of sexual exploitation. Therefore, the PCEPA amendments targeted those who create the demand for prostitution and those who capitalize on it. (para. 21, 22, 59, 62).

c) The Court commented that s. 286.1 (1) criminalized the purchase of sexual services but immunize from prosecution those who sold their own sexual services. S. 286.1 was an expression of the view that those who sell sexual services are exploited persons.

d) The Court held (para. 59) that the PCEPA amendments had three purposes:

a. to reduce the demand for prostitution with a view to discouraging entry into it, deterring participation in it and ultimately abolishing it to the greatest extent possible, in order to protect communities, human dignity and equality;

b. to prohibit the promotion of the prostitution of others, the development of economic interests in the exploitation of the prostitution of others, and the institutionalization of prostitution through commercial enterprises in order to protect communities, human dignity and equality; and,

c. to mitigate some of the dangers associated with the continued, unlawful sale of sexual services. In this respect, Parliament’s objective was to ensure that, as much as possible, people who continue to sell their sexual services, contrary to law, can avail themselves of the safety-enhancing measures identified in Bedford and report incidents of violence, without fear of prosecution.

e) The third purpose, which the Court of Appeal characterized as the safety related purpose, is a secondary or ancillary purpose to the first two purposes. It is limited to ensuring that the sellers of sexual services can avail themselves of the safety enhancing measures identified in Bedford and can report incidents of violence. The safety enhancing measures identified in Bedford were working from a fixed indoor location, hiring persons who may enhance safety, and the ability to negotiate conditions of sale of sexual services in a public place (para. 60 to 63).

f) S. 286.1 criminalizes obtaining for consideration or communicating with anyone for the purpose of obtaining for consideration the sexual services of another. This is often referred to as the purchase offence upon which the offences in s.s 286.2, 286.2, 286.3 and 286.4 are predicated. Providing sexual services for consideration is not criminalized. The criminalization of the activities is intentionally asymmetrical. The criminal law is familiar with asymmetrical offences (paragraph 108, 114).

g) Many of the court’s views expressed under its analysis of the advertising offence under s. 286.4, are relevant to this case, including that the 286.1 was in direct response to the ruling in Bedford that s. 213 (1)(c) was unconstitutional. The PCEPA amendments provided that the communications by the sex worker were immune from prosecution (para. 144 and 145). Further, the finding of the judge at first instance in NS was that the changes in the advertising prohibition by s. 286.4 meant that the parties continued to advertise but employed vaguer language, depriving the hypothetical seller of sexual services of the ability to freely communicate and assess risk, thereby infringing his or her s. 7 rights (para. 147). This reflects the evidence before this court.

Section 7 of the Charter and the Purpose of S. 286.1

The Approach Under Section 7

36 S. 7 of the Charter provides:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

37 As set out in paragraph 43 to 46 of NS , determining a law’s compliance with s. 7 of the Charter involves a two-step analysis. First, the Court must determine the proper assessment of the law’s overall objective. When an impugned provision engages s. 7, its purpose must be identified to determine whether the impairment of the right in s. 7 is in accordance with the principles of fundamental justice, and respects basic values against arbitrariness, overbreadth, and gross disproportionality. Second, the Court must determine the objectives of the specific provision in terms of arbitrariness, overbreadth and disproportionality against the purposes of the amendments as a whole.

38 As indicated, the Court of Appeal in NS determined the purposes of the PCEPA amendments to be:

a) to reduce the demand for prostitution with a view to discouraging entry into it, deterring participation in it, and ultimately abolishing it to the greatest extent possible, in order to protect communities, human dignity, and equality;

b) to prohibit the promotion of the prostitution of others, the development of economic interests in the exploitation of the prostitution of others, and the institutionalization of prostitution through commercial enterprises in order to protect communities, human dignity and equality; and,

c) to mitigate some of the dangers associated with the continued, unlawful provision of sexual services for consideration. In this respect, Parliament’s objective is to ensure that, as much as possible, persons who continue to provide their sexual services for consideration, contrary to law, can avail themselves of the safety-enhancing measures identified in Bedford and report incidents of violence, without fear of prosecution.

39 The Court of Appeal held that the third purpose, the safety related purpose, is a secondary or ancillary purpose to the first two purposes.

40 With these purposes in mind I now turn to the specific analysis of s. 286.1. Is it overbroad or grossly disproportionate as Mr. Williams alleges?

Is Section 7 Engaged?

41 Following the Court of Appeal in NS , I agree that the criminalization of communications by anyone other than the seller of sexual services with respect to the purchase of those services affects the security of the sellers of sexual services and the others communication in respect of those services. It may have an effect on their ability to negotiate the terms under which the seller could provide sexual services for consideration, such as defining the nature of the services, where they would be provided, under what circumstances they would provide be provided, and what safety measures might be taken such as the use of condoms, drugs, or alcohol.

Overbreadth

42 In NS , at paragraph 44, the Court defined overbreadth as follows:

The Supreme Court explained in Bedford that the basic values against arbitrariness and overbreadth target the absence of connection between the impugned law’s purpose and the s. 7 deprivation. A law is arbitrary if there is no connection between the effect and object of the law. A provision suffers from overbreadth when it is so broad in scope that it includes some conduct that bears no connection to its objective: i.e., the law is rational in some cases, but overreaches in its effect in others. The overbreadth analysis does not evaluate the appropriateness of the objective: R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485, at paras. 30-31 .

43 In Bedford , the Supreme Court said that a law is overbroad when its scope is so broad that it includes some conduct that bears no relation to its purpose or objective. As an example, the Court pointed to R. v. Heywood, [1994] 3 S.C.R. 761 , in which it held that a vagrancy law that prohibited offenders convicted of listed offences from “loitering” in public parks was unconstitutional because the law, whose purpose was to protect children from sexual predators, applied to offenders who did not constitute a danger to children and to parks where children were unlikely to be present.

44 Overbreadth is distinct from arbitrariness. A law is arbitrary where it has no connection whatsoever between the effects of the law and its objective. Overbreadth recognizes that a law may have effects some of which meet the law’s objectives and some of which exceed it, are on consistent with that, or unnecessary for it (para. 101, 117, 118).

45 I find that s. 286.1 is not overbroad.

46 The purpose of s. 286.1 is the same as the first two purposes identified by the Court of Appeal of the PCEPA amendments. Criminalizing the purchase of sexual services and communication by a potential purchaser for the purpose of purchasing sexual services is a specific step taken to reduce the demand for prostitution with a view to discouraging entry into it, participation in it, and ultimately, abolishing it to the extent possible in order to protect communities, human dignity, and equality. Criminalizing the communication by others (except the seller of the sexual services) with respect to the purchase of sexual services discourages the involvement of those third parties who seek to profit or benefit by the sale of another person’s sexual services. The prohibitions in s. 286.1 is focused. It does not affect people other than prospective purchasers of sexual services, or third parties wish to benefit from the sale of sexual services.

47 Mr. Williams argued that the communication prohibition in s. 286.1 is overbroad in that the criminalization of prostitution is sufficient to meet the three purposes identified by the Court of Appeal. By going further and banning communications by others than the seller of sexual services s. 286.1 exceeds the purposes identified by the Court of Appeal.

48 I disagree. Banning the purchase of sexual services meets the first purpose identified by the Court of Appeal. It does not, however, address the second purpose identified by the Court of Appeal. The communications ban addresses the second purpose.

49 The communications ban is a logical, measured, and reasonable tool to give effect to the first two purposes of the PCEPA amendments. Further, if the PCEPA amendments’ purpose is to prohibit the demand side of the supply and demand equation with a view to discouraging prostitution, criminalizing communication by purchasers with respect to the purchase of sexual services does just that.

50 Mr. Williams also argued that the communications prohibition is overbroad in that, by banning communications by a person other than the seller of sexual services with respect to the purchase of those sexual services, the purchasers and street-based sellers of sexual services are forced to conduct their negotiations in isolated locations thereby increasing the seller’s exposure to violence, and forces them into using abbreviated, vague, and coded language that leads to differences in expectations between buyer and seller with respect to services to be provided, and the terms and conditions under which they will be provided. This exposes the seller to increased situational violence, as well as sickness and disease, among other things. In other words, the PCEPA amendments have done nothing to address the safety related concerns raised in Bedford .

51 I do not accept this argument for two reasons. First, the submission is contrary to the Court of Appeal’s decision that the third purpose, the safety related purpose of the PCEPA amendments, is a secondary or ancillary purpose to the first two purposes. Mr. William’s submission elevates the safety related purpose to the same plane as the first two purposes. Further, as the Court of Appeal pointed out, Parliament specifically addressed the safety related issues identified in Bedford : working from a fixed indoor location, hiring persons who may enhance safety, and the ability to negotiate conditions for the sale of sexual services in a public place, while at the same time criminalizing prostitution by prohibiting the demand and reinforcing the prohibition on exploitation of sellers by third parties (NS , para. 62 and 63).

52 Second, from the evidence of Mr. Atchison, and on a plain reading the s. 286.1, a seller of sexual services is in a better position with respect to the safety concerns under s 286.1 than under the previous s. 213. Bedford indicated that the s. 213 ban on communications in a public place drove the parties into remote locations. The effect of the PCEPA amendments is the same. What has changed under 286.1 is that the seller is immune from prosecution. Under s. 213, all communications were illegal. Now, the seller of sexual services can state the terms and conditions under which he or she will provide sexual services. For instance, the seller can say what services he or she will not provide, whether condoms are required, and whether he or she will provide services to someone who is intoxicated. What is unclear on the evidence is the actual extent that the criminalization of communication by people other than the seller has created a situation for the sellers and purchasers of sexual services that is any different than that which existed under the former s. 213.

Is Section 286.1 Grossly Disproportionate?

53 At paragraph 45 of NS , the Court of Appeal defined gross disproportionality as follows:

A law offends the value against gross disproportionality when it deprives a person of life, liberty or security of the person in a manner that is grossly disproportionate to the law’s objective. The rule against gross disproportionality only applies in extreme cases, where the seriousness of the deprivation is totally out of sync with the objective of the measure: e.g., a law intended to keep streets clean that imposes life imprisonment for spitting on the sidewalk; see Bedford, at para. 120 .

54 In Bedford , Supreme Court of Canada said that s. 7 is violated when the effect of the law is grossly disproportionate to the stated objective of the legislation in such a way that it would violate basic societal norms. It used the example of a law which refused to exempt safe injection sites from drug possession laws as being grossly disproportionate because it denied health services intravenous drug users and increased the risk of death and disease for them. Accordingly, the effect of the law was grossly disproportionate the objective of the drug possession laws of public health and safety (para. 103 and 104)

55 Gross disproportionality is different from arbitrariness and overbreadth. It targets a law’s effect on the life, liberty, and security of the person where it is so disproportionate to the purpose of the law that it cannot be rationally supported.

56 Further, the rule against gross disproportionality only applies in extreme cases where the seriousness of the deprivation is totally “out of sync” with the objective of the law such as where, for example, a law with the purpose of keeping the streets clean imposes a sentence of life imprisonment for spitting on the sidewalk. The draconian impact of such a law is outside the norms expected in our free and democratic society.

57 Gross proportionality under s. 7 does not consider the beneficial effects of the law. It balances the negative effect on the individual against the purpose of the law, not against the societal benefit of the law. It is also not concerned with the number of people who experience the grossly disproportionate effects. A grossly disproportionate effect on one person is sufficient (Bedford , para. 120 to 122 ).

58 I do not find that effect of s. 286.1 is so grossly disproportionate to its purpose that s. 286.1 cannot be supported.

59 Mr. Williams argued that the gross disproportionality of s. 286.1 arises from the fact that since the sale of sexual services is legal, the activity will continue, yet the effect of s. 286.1 is that those who continue to offer sexual services for consideration continue to be exposed to high levels of risk including a higher risk of exposure to situational and predatory violence and of disease, all brought out by the inability to freely negotiate boundaries with respect to an terms and conditions of the provision of sexual services for consideration.

60 I disagree. Parliament has stated that it considers the sex trade to be inherently exploitative, and, through the PCEPA amendments, Parliament sought to denounce prostitution, deter entry into it, abolish it altogether ultimately, and to deter and punish third parties who profit or materially gain by the sexual sale of sexual services of others. Criminalizing communications by others with respect to the purchase of sexual services (other than the communications of the seller) is a logical step to meet the first two purposes for the PCEPA amendments. S. 286.1’s effects are not grossly disproportionate to the PCEPA amendments’ purposes. They are measured and reasonable.

Section 2 of the Charter – Freedom of Expression

61 S. 2(b) reads:

Everyone has the following fundamental freedoms:

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

62 Mr. Williams argued that s. 286.1 infringes on s. 2(b) Charter rights of the seller and prospective purchaser of sexual services. The legislation prohibits communication by anyone other than the seller with respect to the purchase of sexual services. The right of the receiver to receive the expression of another is also part of the right of freedom of expression of the originator of the expression. The right of freedom of expression is clearly breached. The onus is on the Crown to show that the law is justified under s. 1 of the Charter. It has not done so. The application must succeed on this basis.

63 The Crown argued that freedom of expression is not engaged. The freedom at issue is the freedom of the seller to communicate. The seller is free to express him or herself in any way he or she wishes. In any event, the question of freedom of expression is addressed by the Court of Appeal in NS when it addresses s. 2(b) with respect to the advertising prohibition under 286.4.

64 In oral submissions, the Crown expanded on its brief written submissions arguing that the cases that Mr. Williams relied upon all deal with statements published in the media and not with statements in private commercial conversations. It argued that Mr. Williams provided no jurisprudence to support the proposition that where the s. 2(b) rights of one party in a private conversation are infringed the s. 2(b) rights of the other person are also infringed. In the case at bar, the seller’s rights are not infringed because communication is fully allowed. She could make decisions on whatever response she received from another person, even if the response is silence. In any event, if there is a breach of s. 2(b), then it is saved by s. 1. The behaviour regulated by the law is serious and dangerous. The way that behaviour is regulated by s. 286.1 is reasonable and the PCEPA amendments are comprehensive way of addressing the rational objectives of the legislation. Further, it minimally impairs the rights affected.

65 I disagree with the Crown’s 2(b) analysis. The issue on this application is not only whether the seller of sexual service’s freedom of expression is limited by s. 286.1, but also whether a prospective purchaser’s freedom of expression is limited by s. 286.1.

66 Freedom of expression includes all forms of expression (Re Ont. Film & Video Appreciation Soc. and Ont. Bd. of Censors (1983), 41 O.R. (2d) 583 (ON SC), 34 C.R. (3d) 73, 147 D.L.R. (3d) 58, 5 C.R.R. 373, affirmed Re Ont. Film & Video Appreciation Soc. and Ont. Bd. of Censors (1984), 45 O.R. (2d) 80 (ON CA), 38 C.R. (3d) 271, 5 D.L.R. (4th) 766, 7 C.R.R. 129, 2 O.A.C. 388 (C.A.); R. v. Metro News Ltd., [1986] 56 O.R. (2d) 321 at para 50 ).

67 In a case of publication in the media, the author’s freedom of expression extends to all phases of publication between the originator of the statement and the ultimate recipient, including the supplier, distributor, retailer, renter, or exhibitor. The ultimate recipient’s right to receive the information or expression is included in the originator’s right of expression (R. v. Videoflicks Ltd. (1984), 48 O.R. (2d) 395 at 431, 34 R.P.R. 97, 15 C.C.C. (3d) 353, 14 D.L.R. (4th) 10, 9 C.R.R. 193, 5 O.A.C. 1 (C.A.).

68 There is no logical difference between the rights of the communicator and the recipient of the communication in a private conversation and a publication to a broad audience. S 286.1 violates both the seller’s and prospective purchaser’s freedom of expression. Therefore, the question is whether the breach of s. 2(b) is saved by s. 1 of the Charter.

Section 1 of the Charter

69 Section 1 provides:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

70 I find that s. 286.1 is saved by s. 1 of the Charter .

71 In NS , the Court of Appeal had this to say about s. 1 of the Charter as it pertains to the breach of s. 2(b) by s. 286.4 (the advertising ban):

[159] Reasonable limits on rights will be demonstrably justified when (a) they have a pressing and substantial objective and (b) the means chosen to advance the objective do not disproportionately limit the right. Proportionality requires that the means be rationally connected to the objective, be minimally impairing, and have benefits that outweigh their negative effects: Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 94 .

[160] The legislative objective of the prohibition on communicating in public accepted by Dickson C.J. in the Prostitution Reference and upheld in Bedford was to take “solicitation for the purposes of prostitution off the streets and out of public view”. The objective of s. 286.4 is more pressing and substantial. Obtaining sexual services for consideration is now unlawful. The purpose of s. 286.4 is to reduce the demand for an unlawful activity.

[161] Section 286.4 addresses itself precisely to that objective by prohibiting advertising, which increases demand. It is therefore rationally connected to its objective.

[162] The prohibition on advertising is reasonably tailored to the provision’s objective of reducing the demand for the provision of sexual services for consideration in order to protect communities, human dignity and equality. It does not prevent providers of sexual services from communicating with prospective clients before an in-person encounter by text, email or phone. It cannot be said that the prohibition on advertising is unduly intrusive.

[163] Finally, the provision’s harms are not disproportionate to its benefits. As in the Prostitution Reference , the prohibited expression is directed at an economic interest. As Dickson C.J. stated in the Prostitution Reference , “It can hardly be said that communications regarding an economic transaction of sex for money lie at, or even near, the core of the guarantee of freedom of expression.” And the record does not establish serious harms: providers of sexual services for consideration continue to advertise and communicate with clients, and are protected by the immunity provisions. Meanwhile, Parliament has identified an array of serious social harms caused by prostitution, including harms to the community and exposure to children, which s. 286.4 aims to curb. There is no disproportionality here.

72 As I have already indicated, the legislative purpose of s. 286.1, is the same as the first two legislative purposes or objectives of the PCEPA amendments as identified by the Court of Appeal in NS . Criminalizing the purchase of sexual services and communication by a potential purchaser for the purpose of purchasing sexual services is a specific step taken to reduce the demand for prostitution with a view to discouraging entry into it, participation in it, and ultimately, abolishing it to the extent possible in order to protect communities, human dignity, and equality. Criminalizing the communication by others (except the seller of the sexual services) with respect to the purchase of sexual services discourages the involvement of those third parties who seek to profit or benefit by the sale of another’s sexual services.

73 These are pressing and substantial objectives. Prostitution is an unlawful activity which s. 286.1 attempts to reduce.

74 S. 286.1 is focused and rationally connected to its objectives and those of the PCEPA amendments. By prohibiting communications by a purchaser of sexual services of others, s. 286.1 attacks ‘demand’ side of the supply and demand equation of the purchase of sexual services of another (an illegal activity). In doing so, attempts to protect communities, human dignity and equality.

75 I do not find that the prohibition against purchasers communicating with respect to the purchase office to be unduly intrusive or disproportionate to its benefits.

76 It is not unduly intrusive as it is tailored specifically to the purchase offence. Sellers ‘communications are unrestricted. Since prostitution is illegal and the legislation is aimed at reducing prostitution by making the purchase of services illegal, it is rational to prohibit those activities ancillary to the purchase offence, such as purchasers’ discussions with respect to the purchase, or advertising the services of others, as the Court of Appeal found in NS . Sellers can still report violence and avail themselves of the safety mechanisms identified in Bedford (see: NS at para.62 and 63).

77 S. 286.1’s infringement of s. 2(b) of the Charter are not disproportionate to its benefits. I agree with the Court of Appeal, when it cited with approval, Dickson, CJ in the Prostitution Reference when he said, “It can hardly be said that communications regarding an economic transaction of sex for money lie at, or even near, the core of the guarantee of freedom of expression.”

78 The evidence of Mr. Achinson is that sellers of sexual services face an increased risk of harm (violence, disease, etc.) that arise because of the criminalization of communication by both sides of the transaction or even only the purchaser. This evidence is almost identical to that given in Bedford and in NS . That evidence speaks to the increase in the risk of harm that comes with banning communication for the purchase of sexual services, compared to there being no impairment of the ability to communicate. In other words, the risks of violence, disease, etc., attendant in the sale of sexual services exist, regardless. The restriction on the ability to communicate merely increases the risks of these harms by reducing the seller of sexual services’ ability to assess those risks following a full and free discussion the terms and conditions under which his or her services will be provided.

79 On the other hand, Parliament has identified many serious social harms caused by prostitution to the community and human dignity. The sale of sexual services is an inherently degrading and dangerous activity. It attracts dangerous people that prey on those who sell their sexual services. It promotes human trafficking and exploitation. Its effects are disproportionately greater on young people and society’s most marginalized and vulnerable people, whom prostitution degrades and exploits more than others.

80 By prohibiting the purchase offence and communication by purchasers aimed at the purchase of sexual services by others, Parliament has attacked the demand portion of the supply and demand equation. By exempting the seller of sexual services from prosecution under s. 281.1 to 286.4, Parliament has attempted to “create the climate in which prostitutes can take certain specific measures, steps to further protect themselves or insulate themselves from violence.” (NS , at para. 62). It is also clear that Parliament was of the view that that the best way to protect sellers of sexual services was to reduce prostitution itself. (NS , at para. 62). S. 286.1 is not disproportionate.

Result

81 The Application is dismissed.

Trimble, J. Released: January 13, 2023