2023 ONSC 5197

COURT FILE NO.: CV-21-659594

DATE: 20230918

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CANADIAN ALLIANCE FOR SEX WORK LAW REFORM, MONICA FORRESTER, VALERIE SCOTT, LANNA MOON PERRIN, JANE X, ALESSA MASON and TIFFANY ANWAR

Applicants

AND:

ATTORNEY GENERAL OF CANADA

Respondent

AND:

ATTORNEY GENERAL OF ONTARIO

Intervenor

AND:

AMNESTY INTERNATIONAL CANADIAN SECTION (ENGLISH SPEAKING), ASSOCIATION FOR REFORMED POLITICAL ACTION, AWCEP ASIAN WOMEN FOR EQUALITY SOCIETY, BLACK LEGAL ACTION CENTRE, VRIDGENORTH WOMEN’S MENTORSHIP & ADVOCACY SERVICES, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION, CANADIAN ASSOCIATION OF REFUGEE LAWYERS, CANADIAN CIVIL LIBERTIES ASSOCIATION, PARENTS AGAINST CHILD TRAFFICKING COALITION, DEFEND DIGNITY, EGALE CANADA AND THE EXCHANTE NETWORK, EVANGELICAL FELLOWSHIP OF CANADA, MIGRANT WORKERS ALLIANCE FOR CANADA, ONTARIO COALITION OF RAPE CRISIS CENTRES, SEXUAL HEALTH COLAITION, WOMEN’S EQUALITY COALITION and WOMEN’S LEGAL EDUCATION AND ACTION FUND (LEAF)

Intervenors

H. Michael Rosenberg, Alana Robert, Holly Kallmeyer, Tara Santini, James Lockyer, for the Applicants

Michael H. Morris, Gail Sinclair, Joseph Cheng & Andrea Bourke, for the Respondent, Attorney General of Canada

Deborah Krick, Meaghan Cunningham, for the Intervenor Attorney General of Ontario

Gerald Chipeaur & Tory Hibbitt, for the Intervenor Defend Dignity

John Sikkema, for the Intervenor, The Evangelical Fellowship of Canada

Cara Zwibel, for the Intervenor, Canadian Civil Liberties Association

Jamie Liew & Molly Joeck, for the Intervenor, Canadian Association of Refugee Lawyers (CARL)

Jacqueline L. King & Matilda Lici, for the Intervenor, BridgeNorth Women’s Mentorship & Advocacy Services

Alexi N. Wood & Laura MacLean, for the Intervenor, Amnesty International, Canadian Section (English Speaking)

Andre Schutten & Tabitha Ewert, for the Intervenor, The Association for Reformed Political Action (ARPA) Canada

Nerissa Yan & Jennifer Flood, for the Intervenor, Asian Equality for Women

Nana Yanful, Saneliso Moyo & Geetha Philipupillai, for the Intervenor, The Black Legal Action Centre

Danny Kastner, Akosua Matthews & Ruth Wellen, for the Intervenor, The British Columbia Civil Liberties Association

Adriel Weaver & Dan Sheppard, for the Intervenors, Egale Canada and the Enchante Network

Angela Chiasson & Marcus McCann, for the Intervenor, Ontario Coalition of Rape Crisis Centres

David Elmaleh, for the Intervenors, Parents Against Child Trafficking Coalition

Vincent Wan Shun Wong, for the Intervenor, Migrant Workers Alliance for Change

Janine Benedet & Gwendoline Allison, for the Intervenor, Women’s Equality Coalition

Robin Nobleman, Ryan Peck & Lea Pelletier-Marcotte, for the Intervenor, Sexual Health Coalition

Pam Hrick, Jihyun Rosel Kim & Dragana Rakic, for the Intervenor. Women’s Legal Education and Action Fund

HEARD: October 3, 4,6 ,7, 2022

R.F. GOLDSTEIN J.

REASONS FOR DECISION

I. Introduction. 1

II. Background. 4

A. Language and Definitions. 4

B. A Brief History of Canada’s Prostitution Laws. 7

C. The Supreme Court Strikes Down Prostitution-Related Legislation in Bedford. 9

D. The Government Responds To Bedford. 11

E. This Application Mirrors The Policy Debate. 13

F. Whether Sex Work Is Inherently Exploitive Is Not Relevant To The Analysis. 13

G. The N.S. Decision. 14

i. Summary of N.S. 14

ii. N.S. is binding on this court 17

III. The Scheme Of PCEPA.. 19

A. The Objectives Of PCEPA.. 19

B. The Purchasing Offence. 21

C. The Material Benefit Offence. 22

D. The Procuring Offence. 25

E. The Advertising Offence. 27

F. The Stopping Traffic Offence. 27

G. The Communication Offence. 28

IV. Facts. 29

A. My Approach To The Evidence As Trier Of Fact 29

i. Expert evidence. 29

ii. Are the experts in this case biased?. 32

iii. Fact witnesses. 35

iv. Conclusions regarding the weight to be given the factual witnesses. 37

B. The Sex Industry In Canada. 39

i. The different views of the parties and the intervenors. 39

ii. What are the problems research sex workers and sex work?. 41

iii. Is there agreement about the nature of the sex industry in Canada?. 48

iv. Do sex workers enter the industry by choice?. 49

v. Is there a link between sex work, exploitation, and human trafficking?. 54

vi. What is the role of third parties in the sex industry?. 59

vii. What is the role of violence in the sex industry?. 63

viii. Conclusions regarding the sex industry. 68

V. Does PCEPA Violate Section 7 Of The Charter?. 68

A. The S. 7 Framework. 68

B. Is Sex Work Now Legal?. 70

C. Most Of The Harms Complained Of Are The Collateral Consequences Of Prohibition. 73

D. The Applicants Misinterpret The Challenged Offences. 74

E. Does PCEPA Result In A Deprivation Of Life, Liberty, Or Security Of The Person?. 77

i. Does the prohibition on commercial enterprises under s. 286.2(5)(e) prevent sex workers from accessing safety measures or third party services, working in association, or operating from fixed indoor locations?. 79

a. Is there a sufficient causal connection between the prohibition on commercial enterprises and the inability of sex workers to access safety measures?. 81

b. Is there a sufficient causal connection between the prohibition on third parties under the material benefit and procuring provisions, and the inability of sex workers to make use of third parties who would improve their safety and security?. 85

c. Is there a sufficient causal connection between the prohibition on commercial enterprises and the inability of sex workers to work in association?. 86

d. Is there a sufficient causal connection between the prohibition on commercial enterprises and the inability of sex workers to operate from fixed indoor locations?. 87

ii. Do the challenged offences impede the ability of sex workers to screen clients?. 88

iii. Does the advertising offence jeopardize the health and safety of sex workers?. 94

iv. Does the prohibition against sex work result in the denial of labour standards, occupational health and safety standards, and income-related government programs to sex workers?. 95

v. Does PCEPA increase discrimination and violence due to stigmatization?. 97

vi. Does PCEPA discourage reporting of violence to the police by sex workers?. 102

a. Is the fraught relationship between police and some sex workers the result of PCEPA? 104

b. If so, does the relationship discourage the reporting of violence to the police?. 105

vii. Does PCEPA infringe the right to security of the person by compromising sex worker’s right to personal and bodily autonomy?. 105

viii. Does PCEPA engage the liberty interests of third parties?. 108

ix. Do the communications and stopping traffic offences engage the liberty interests of sex workers? 109

x. Conclusions with respect to life, liberty, and security of the person. 109

F. Does PCEPA Violate The Principles Of Fundamental Justice?. 109

i. Is the purchasing offence arbitrary, overbroad, or grossly disproportionate?. 111

ii. Are the material benefit, procuring, and advertising offences arbitrary, overbroad, or grossly disproportionate?. 115

iii. Are the stopping traffic and communications offences arbitrary, overbroad, or grossly disproportionate?. 116

G. Conclusions Regarding S. 7 Of The Charter 118

VI. Does PCEPA Violate S. 2(d) Of The Charter?. 118

VII. Do The Marterial Benefit And Procuring Offences Violate S. 2(b) Of The Charter?. 123

VIII. Does PCEPA Violate S. 15 Of The Charter?. 125

A. The Section 15 Framework. 125

B. Is Sex Work An Analogous Ground For The Purpose of Section 15 Analysis?. 126

C. Does PCEPA Impose Burdens Or Deny A Benefit In A Manner That Reinforces, Perpetuates, Or Exacerbates The Disadvantage?. 132

IX. Are The Offences Saved By S. 1 Of The Charter?. 132

A. The Section 1 Framework. 132

B. Is The Prostitution Reference Binding In Relation To The Stopping Traffic And Communications Offences?. 134

C. Other Free And Democratic Societies Have Adopted The Nordic Model 135

D. Is The Purpose Of PCEPA Pressing And Substantial?. 136

E. Is The Means Chosen By Parliament Proportionate To The Object Of PCEPA?. 137

i. Is the limit rationally connected to the purpose of PCEPA?. 137

ii. Does the limit minimally impair the right?. 139

iii. Is PCEPA proportionate in its effects?. 140

F. Conclusions With Respect To Section 1. 141

X. Disposition. 141

“The regulation of prostitution is a complex and delicate matter.”

• Chief Justice McLachlin, R. v. Bedford, 2010.

I. Introduction

[1] For many years the status of prostitution in Canada, or sex work as I will call it in these reasons, was somewhat ambiguous. The sale or purchase of sex was not a criminal offence. Everything surrounding it was. In her decision in Bedford striking down several sex-work related sections of the Criminal Code as unconstitutional, Justice Himel of this court observed:

Prostitution per se is not illegal in Canada, although many prostitution-related activities are prohibited by provisions in the Criminal Code. The applicants' case is based on the proposition that the impugned provisions prevent prostitutes from conducting their lawful business in a safe environment.[^1]

[2] Bedford made its way to the Supreme Court of Canada. That Court agreed with Himel J.: the Criminal Code sections relating to keeping a common bawdy house, living off the avails of prostitution, and communication for the purpose of prostitution were unconstitutional.[^2] The Court suspended the declaration of invalidity for one year. The government considered and Parliament debated the response. Parliament ultimately adopted a Canadian variation of the “Nordic Model”. The Nordic Model treats sex work as an inherently harmful activity that harms women and girls, negatively impacts marginalized groups (especially racialized and Indigenous women and girls) and harms the communities in which it takes place. The result was the Protection of Communities and Exploited Persons Act, which passed the House and Senate and received Royal Assent in November 2014 (which I will refer to either as “the challenged offences” or, collectively, “PCEPA”, depending on the context).[^3]

[3] The legal status of sex work is no longer ambiguous. The purchase of sex is prohibited. Sex work is no longer legal, but sellers of their own sexual services are immune from prosecution. Parliament also prohibited other activities around sex work, such as procuring, advertising, stopping traffic, and communicating for the purposes of sex work near a school, a daycare centre, or a playground. Although advertising is prohibited, sex workers are immune from prosecution for advertising their own sexual services. Parliament also created an offence of receiving a material benefit from sex work but created exceptions for non-exploitive third-party relationships.

[4] The Applicants say that all the challenged offences are unconstitutional. They argue that, individually and collectively, the challenged offences violate s. 7, s. 2(b), s. 2(d), and s. 15 of the Charter and cannot be saved by s. 1. The heart of their argument is that PCEPA replicates the harms in the original, pre-Bedford laws, thus engaging the s. 7 interests of sex workers and third parties who work with sex workers.

[5] The Applicants consist of five current or former sex workers (Monica Forrester, Valerie Scott, Lana Moon Perrin, Jane X, Alessa Mason), one former escort service manager (Tiffany Anwar), and one organization (The Canadian Alliance for Sex Work Law Reform, which I will refer to as “CASWLR”). The Attorneys General have not challenged the standing of any of the Applicants. The Court granted intervenor status to several organizations. The intervenors filed facta and made submissions. The Court did not permit the intervenors to file evidence.

[6] The Applicants challenge the following offences:

• s. 213(1): stopping or attempting to stop motor vehicle traffic in a public place or impeding the free flow of pedestrian or vehicular traffic in a public place, for the purpose of offering or providing or obtaining sexual services for consideration (the “stopping traffic offence”);

• s. 213(1.1): communicating with anyone in a public place next to a schoolground, playground, or daycare centre for the purpose of offering or providing sexual services for consideration (the “communication offence”);

• s. 286.1(1): purchasing, or communicating with anyone for the purpose of purchasing sexual services (the “purchasing offence”);

• s. 286.2(1): receiving a material or financial benefit knowing that it is obtained from the purchase of sexual services (the “material benefit offence”);

• s. 286.3(1): procuring, recruiting, holding, concealing, or harbouring a person who provides sexual services for consideration (the “procuring offence”); and,

• s. 286.4(1): advertising an offer to provide sexual services (the “advertising offence”).

[7] The Applicants do not challenge the constitutionality of provisions of the Criminal Code dealing with sex work by persons under 18. They also do not challenge the human trafficking provisions.

[8] My duty on this Application is not to decide whether, as a matter of policy, Parliament was right to adopt the Nordic Model, or should have opted for decriminalization and regulation, or should have simply not legislated at all. My duty is solely to determine whether the legislative scheme is Charter-compliant.[^4] The Applicants may or may not be right that decriminalization and regulation of sex work are better policy choices. But that is a decision for Parliament, not this court.

[9] The Supreme Court in Bedford (SCC) explicitly indicated that Parliament may regulate sex work. In doing so, Chief Justice McLachlin, writing for a unanimous Supreme Court, recognized that the issue is very complicated:

I have concluded that each of the challenged provisions, considered independently, suffers from constitutional infirmities that violate the Charter. That does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted. Prohibitions on keeping a bawdy-house, living on the avails of prostitution and communication related to prostitution are intertwined. They impact on each other. Greater latitude in one measure — for example, permitting prostitutes to obtain the assistance of security personnel — might impact on the constitutionality of another measure — for example, forbidding the nuisances associated with keeping a bawdy-house. The regulation of prostitution is a complex and delicate matter. It will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime.[^5]

[10] PCEPA was an explicit response to the Supreme Court’s decision in Bedford (SCC). I find that it is constitutional. I make the following specific findings:

• None of the challenged offences violate s. 7 of the Charter.

• As conceded by the Attorney General of Canada, the stopping traffic, communications, and advertising offences, as well as the communications aspect of the purchasing offences violate s. 2(b) of the Charter. They are saved by s. 1.

• The procuring and material benefit offences do not violate s. 2(b) of the Charter.

• None of the challenged sections violate s. 2(d) of the Charter.

• None of the challenged sections violate s. 15 of the Charter.

[11] I also make four observations that are critical to the disposition of this Application:

• First, there is no constitutional “right” to engage in sex work. Parliament has the power to prohibit it. It is contrary to law to exchange sexual services for consideration; but sex workers are immune from prosecution for selling or advertising their own sexual services.

• Second, the Applicants’ evidence, especially the expert evidence, betrays a basic misunderstanding and misreading of the challenged offences.

• Third, sex workers should understand that PCEPA, properly interpreted, does not prohibit them from accessing safety measures, working in association with each other, and accessing the services of non-exploitive third parties. Sex workers can engage the services of third parties who do not exploit them, including security guards, drivers, and receptionists. Sex workers should also understand that when PCEPA is properly interpreted, they can seek police assistance without fear that they will be charged for selling their sexual services, receiving a material benefit from the own sexual services, communicating with customers in relation to their own sexual services, or advertising in relation to their own sexual services. Sex workers should also understand that they cannot be prosecuted for communicating with customers in public, except where they do it under certain specific geographical circumstances, such as near a place where children are regularly found, or by stopping traffic on public roads.

• Fourth, many people who work with sex workers filed affidavits on behalf of both the Applicants and the Respondent. They are employed by or volunteer with community organizations that provide valuable services. They work with some of the most disadvantaged populations in this country. They labour, often for years, on behalf of marginalized people. As I will point out at other places in these reasons, they receive little in the way of recognition or respect from our society. They deserve plenty of both. One of the functions of a court’s reasons is to educate the public. I hope that these reasons will convey this court’s respect for and recognition of the work they do.

[12] What follows are my reasons for dismissing the application.

II. Background

A. Language and Definitions

[13] The language around this issue reflects the issue itself: it is charged and contentious. I will try to use neutral terms wherever possible.

[14] Sex work and sex worker: For the purposes of simplicity and neutrality I will refer to the commercial sale of sex as “sex work” and those engaged in it as “sex workers”. The terms “prostitute” or prostitution” should generally be avoided in sexual assault cases, as the terms feed into the “twin myths” prohibited by s. 276 of the Criminal Code.[^6] This is obviously not a sexual assault case, but the language of “sex work” and “sex worker” is more neutral. Let me be very clear that by using this language, I do not mean to convey that I agree with the Applicants (and some of the intervenors) that sex work is no different from any other type of work. I will only use the term “prostitution” or “prostitute” where I am quoting evidence or cases, or as the context specifically requires.

[15] In this case, I define sex work to mean providing sexual services for consideration. I do not mean sex work to include other forms of adult entertainment such as stripping and massages except where strip clubs or massage parlours or other adult entertainment establishments provide sexual services for consideration. I also do not include the production or sale of pornography.

[16] Pimp and pimping: Some of the Applicants’ experts have criticized the use of the term “pimp”. For example, in her expert report Professor Roots states:

Those who profit from the sexual labour of others are typically misconstrued as parasitic, exploitative, and misogynistic. The construction taps into a deeply rooted stereotype of the third party manager as ‘the pimp’ – an often racialized image of a predatory male who exploits women in the sex trade.[^7]

[17] I accept that there are non-exploitive third-party relationships in the sex trade. As will become clear in these reasons, however, there is a large amount of evidence that there are many involved in the sex trade – mostly men – who exploit and profit from the sexual labour of others – mostly women. That exploitation is not only parasitic and misogynistic; it is also frequently violent and manipulative. “Pimp” and “pimping” are ugly words that describe ugly behaviour – and with all due respect to Professor Roots, the evidence demonstrates (as will also be seen in these reasons) that pimps and pimping are common in the sex industry. “Pimp” is a term that is used by people in the sex trade themselves, often including the pimps.[^8] It is also a term used in the government’s Technical Paper. However, I agree with Professor Roots that there is a danger of racial stereotyping. I further agree that racial stereotyping can feed into a “pimp” narrative that includes significant tropes and elements of anti-Black racism.[^9] I will use the word “exploiter” instead to avoid the danger of racial stereotyping. By “exploiter” I mean those who engage in exploitive behaviour to profit from the sexual labour of others. I use the term primarily to differentiate between those third parties who engage in violence, manipulation, and exploitation, and those who do not. I will continue to use the term “pimp” when it appears in a quote, or where the context requires.

[18] Trafficker: I also use the term “trafficker”. I often use it in the same sentence as the term “exploiter”. A trafficker is one who commits an offence under s. 279.01(1) of the Criminal Code or one of the related sections. Section 279.01(1) of the Criminal Code states:

279.01 (1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence…

(2) No consent to the activity that forms the subject-matter of a charge under subsection (1) is valid.[^10]

[19] Although trafficking and procuring or receiving a material benefit are different criminal offences, a trafficker and an exploiter can be, and often are, the same person. Hence I frequently use the terms exploiter and trafficker together.

[20] Criminalization, prohibition, and asymmetric prohibition: There has been frequent use of the term “criminalization” in this Application. The government’s Technical Paper employs the term. The Honourable Peter McKay, the Minister of Justice, used the term when he introduced Bill C-36 in the House of Commons. The Applicants in their affidavits (including their experts) frequently employ the term “criminalization”. It appears to mean different things to different experts and different lay witnesses at different times. The term appears to encompass a very broad range of governmental action. As a result, I have avoided the term. Instead, I try to speak of specific prohibitions and sanctions to be more precise. When I do use the term “criminalization”, it is usually in the context of a quote or a reference to material in an affidavit or study or factum that uses the term. I also make frequent use of the term “asymmetric prohibition”. I use this term to describe the offence in s. 286.1(1) of the Criminal Code. The offence is asymmetric because criminal liability attaches to the purchaser of sexual services, but not the seller.

[21] Safety measures: I have also used the term “safety measures” in these reasons. The term “safety support” is sometimes used in the materials, but the term “safety measure” was used by both Justice Himel and the Supreme Court in Bedford. By “safety measures” I mean a good, service, or individual that is engaged in preventing violence by customers. This could be, for example, an alarm system, security cameras, a security guard, or a driver.

[22] Outdoor sex workers and indoor sex workers: Sex workers may work from both indoor and outdoor locations. Outdoor sex workers are sometimes referred to as working on the street. They are distinguished from indoor sex workers. Outdoor sex workers usually do not have a fixed location and may have sex in cars, or parks, or other outdoor places. Indoor and outdoor sex work are not watertight compartments. There may be overlap. Some sex workers work both indoors and outdoors.

B. A Brief History of Canada’s Prostitution Laws

[23] Prior to PCEPA, the sale and purchase of sex for consideration by adults was not a crime in Canada. As Himel J. pointed out in Bedford (SCJ), “prostitution laws... have developed in a rather ad hoc manner, reflecting differing concerns of legislators over the years.”[^11] Justice Himel quoted the Fraser Report, briefly summarizing the history of prostitution-related laws in Canada:

The earliest provisions in Canadian criminal law relating specifically to prostitution dealt with bawdy-houses and street walking. The bawdy-house provisions which were 'received' from England made it an offence to 'keep' a bawdy-house (typically a brothel). However, unlike the parallel English law, they also embraced both being an inmate of or one 'found in' (a customer in) a bawdy-house. The law on streetwalkers which developed from more general provisions on vagrancy made it an offence to be a prostitute or streetwalker 'not giving a satisfactory account of [herself]'.

In the 1860s, in the wake of concern in official circles in Britain about the supposed connection between prostitutes, venereal disease and demoralization in the armed forces, Canada, following the British lead, introduced a regulatory regime which made it possible for prostitutes to be subjected to medical inspection and, if found to be diseased, detained for compulsory treatment in a certified hospital. However, in Canada the legislation was rarely enforced and was soon allowed to lapse.

In all of this early legislation, with the partial exception of the bawdy-house provisions, the emphasis of the law was on penalizing the prostitute. The philosophy seems to have been that the male population was entitled, without sanction, to seek the services of prostitutes, but insofar as the morality or health of the community might be compromised by such activity, the target of the law was properly the purveyors and not the customers of the business.

In the late 19th and early 20th century, the emergence of a more paternalistic concern on the part of the legislators with the protection of girls and young women from the ravages of vice, often associated with the alleged scourge of 'white slavery', led to the addition of a series of provisions which had the protection of 'virtuous womanhood' as their objective. These included a litany of offences proscribing procuring, and 'living on the avails' of prostitutes. Together with the earlier streetwalker and bawdy-house offences, they were included in the Canadian Criminal Code.

Largely as a result of the efforts of women involved in the so-called 'social purity movement', legislation designed both to rehabilitate prostitutes and to prevent children opting for that way of life was also enacted across the country at the provincial level. These regimes, which allowed for special detention orders for prostitutes and the removal of female adolescents from their own homes, were often as repressive in application as the streetwalking provisions.

The dual elements in the thinking of lawmakers of the prostitute as both moral and legal outcast, and the need to protect respectable women from the wiles of perverse males, has continued to influence the law and its enforcement through the 20th century. The bawdy-house provisions, with their uniquely Canadian focus on keeper, prostitute and customer, remain in the Criminal Code in sections 193 and 194. The purely status offence of streetwalking was retained in the Code until 1972 when it was replaced by the present soliciting provision, section 195.1.

The list of procuring offences continues to exist in section 195(1) of the Code, subject to recent changes which extend their application to both males and females. Although the special regulatory regimes designed to deal with the public health or morals problems caused by prostitution are now historic memories, more general legislation on public health and child welfare exists which provides the possibility of regulatory control over prostitution and its side effects.[^12]

[24] In the early 2000s, the applicants in Bedford (Terry Jean Bedford, Amy Lebovitch, and Valerie Scott) brought a constitutional challenge to three of the main prostitution-related offences in the Criminal Code: s. 210, the bawdy house provisions; s. 212(1)(j), living on the avails of prostitution; and s. 213(1)(c), communicating for the purpose of prostitution.[^13] All three applicants were current or former sex workers. Justice Himel considered the history, objectives, and judicial interpretations of these sections. Justice Himel found that all three provisions of the Criminal Code violated s. 7 of the Charter and could not be saved by s. 1. She found that each of the three provisions of the Criminal Code deprived the applicants of liberty and security of the person. The deprivation was not in accordance with the principles of fundamental justice. The three provisions increased the risk of imprisonment or violence by preventing sex workers from taking steps to reduce the risk of violence while carrying on a legal activity.

[25] The Court of Appeal for Ontario agreed with Himel J. that the bawdy house and living on the avails provisions of the Criminal Code were unconstitutional. The majority overruled Himel J. on the communicating provision. The majority found that it was constitutional. Justice MacPherson, in dissent, agreed with Himel J. on the communicating provision. He would have struck it down as unconstitutional.[^14]

C. The Supreme Court Strikes Down Prostitution-Related Legislation in Bedford

[26] Justice Himel’s decision was upheld by the Supreme Court of Canada in 2013: Bedford (SCC). The Court struck down all three provisions and suspended the declaration of invalidity for one year. The Supreme Court disagreed with the majority of the Court of Appeal that the communicating provision was constitutional.

[27] Chief Justice McLachlin, writing for a unanimous Supreme Court, started her decision by succinctly summarizing the issue:

It is not a crime in Canada to sell sex for money. However, it is a crime to keep a bawdy-house, to live on the avails of prostitution or to communicate in public with respect to a proposed act of prostitution. It is argued that these restrictions on prostitution put the safety and lives of prostitutes at risk, and are therefore unconstitutional.[^15]

[28] The Chief Justice agreed with Himel J. and the Court of Appeal that the security of the person of the applicants was engaged. As she put it at paras. 60 and 87:

The prohibitions at issue do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks.

The causal question is whether the impugned laws make this lawful activity more dangerous. An analogy could be drawn to a law preventing a cyclist from wearing a helmet. That the cyclist chooses to ride her bike does not diminish the causal role of the law in making that activity riskier. The challenged laws relating to prostitution are no different.

[29] McLachlin C.J.C. adopted Himel J.’s finding that the practical effect of bawdy house sections was to confine lawful prostitution to street work and out-calls. Street work and out-calls are activities that are more dangerous to sex workers. The Chief Justice also adopted Himel J.’s finding that the living on the avails sections prevented sex workers from taking some basic security measures. Those basic measures included hiring bodyguards, receptionists, and drivers. She further adopted Himel J.’s finding that face-to-face communication by street sex workers is an essential safety tool. Communication permits sex workers to screen clients for violence or intoxication. The communication law displaced sex workers to more isolated areas. This measure made a legal activity more dangerous. There was a causal connection between the laws and the risks faced by sex workers.[^16]

[30] McLachlin C.J.C. then analyzed the provisions in terms of arbitrariness, gross disproportionality, and overbreadth. She agreed with Himel J. and the Court of Appeal that the negative effect of the bawdy house provisions on the security of the person was grossly disproportionate to the objective. The objective of the provision was the deterrence of community nuisance and disruption.[^17] The harm, however, was the displacement of sex workers to street and outcall sex work. Complaints about nuisance, in contrast, were rare.[^18]

[31] The objective of the living on the avails provisions was to target exploiters and parasitic behaviour.[^19] McLachlin C.J.C. agreed with Himel J. and the Court of Appeal that the provisions were overbroad. The law criminalized all behaviour without distinguishing between those who could increase the safety of sex workers, such as bodyguards, and those who exploit sex workers, such as abusive exploiters. Because the law made no distinction, it was overbroad.[^20]

[32] The communicating provision was directed at the social nuisance of solicitation in a public place. The purpose, as described by Dickson C.J.C. in the Prostitution Reference, was to take “prostitution off the streets and out of public view.”[^21] Communication between a sex worker and a potential client – an essential screening tool – was prohibited. Inability to screen increased the danger of harm to a sex worker. That danger deprived outdoor sex workers of security of the person. When measured against the objective, the harm engendered by the provision was grossly disproportionate.[^22]

[33] The Supreme Court suspended the declaration of invalidity for one year. Parliament considered and debated its response.

D. The Government Responds To Bedford

[34] On June 4, 2014, the Honourable Peter McKay, the Minister of Justice, introduced Bill C-36 – the bill that eventually became PCEPA – in the House of Commons for first reading. The Department of Justice released a Technical Paper detailing the government’s response to Bedford (SCC) and the data upon which it relied in choosing what had come to be known as “the Nordic Model”. The Nordic Model is so named because it was first introduced in Sweden in 1999, followed by Norway and Iceland in 2009.[^23]

[35] The key feature of the Nordic Model is that it prohibits the purchase of sex but does not penalize the seller. The theory of the model is that prostitution is a harmful activity. It is highly gendered. Male customers of generally higher wealth, status, and power exploit (mostly) female sellers of lower status, wealth, and power. The intent of the Nordic Model is to reduce the demand for sex work. Bill C-36 as introduced (and ultimately passed) prohibits the purchase of sex but immunizes those who sell their own sexual services. Non-exploitive third parties also do not attract criminal liability. The government stated through the Technical Paper:

The majority of those who sell their own sexual services are women and girls. Marginalized groups, such as Aboriginal women and girls, are disproportionately represented.

Prostitution reinforces gender inequalities in society at large by normalizing the treatment of primarily women’s bodies as commodities to be bought and sold. In this regard, prostitution harms everyone in society by sending the message that sexual acts can be bought by those with money and power. Prostitution allows men, who are primarily the purchasers of sexual services, paid access to female bodies, thereby demeaning and degrading the human dignity of all women and girls by entrenching a clearly gendered practice in Canadian society.[^24]

[36] The government also stated, through the Technical Paper, that “… Prostitution is an extremely dangerous activity that poses a risk of violence and psychological harm to those subjected to it, regardless of the venue or legal framework in which it takes place, both from purchasers of sexual services and from third parties.”[^25] These comments were echoed by Justice Minister McKay when he introduced PCEPA in the House of Commons.[^26]

[37] The House of Commons Standing Committee on Justice and Human Rights heard submissions and evidence for and against PCEPA. So did the Senate Standing Committee on Legal and Constitutional Affairs.

E. This Application Mirrors The Policy Debate

[38] Many of the same arguments made before the Parliamentary committees considering Bill C-36 were also made before Himel J. during the original Bedford application. Many of those arguments were repeated on this Application, modified to deal with the legislative changes and the new evidence. Some of the evidence before the Parliamentary committees was also filed in this Court. Some of the Interveners in this Application also made presentations to the House and Senate committees examining Bill C-36. Current and former sex workers spoke against PCEPA; former sex workers spoke for it. Representatives of social services agencies (some of which intervened in this Application) spoke for and against PCEPA. Many of the people who testified before these committees also played a role in this Application. For example, the Applicant Valerie Scott testified before the House of Commons committee. She also filed an affidavit in this proceeding. Janine Benedet and Gwendoline Allison, who represented Interveners in this Application, also testified before the House of Commons Committee. Professor Bruckert and Professor Atchison, who submitted expert reports on behalf of the Applicants, testified. Diane Redsky, who filed an affidavit on behalf of the Attorney General of Canada also testified. The evidence and submissions on this Application mirrored the debates around Bill C-36.

[39] Another feature of the advocacy before Parliament and this court is that organizations purporting to represent the same groups frequently took diametrically opposed positions. For example, representatives of Indigenous groups were divided, a division that is also mirrored in this Application. Michèle Audette of the Native Women’s Association of Canada advocated for the Nordic Model before the House of Commons committee.[^27] Christa Big Canoe of Toronto Aboriginal Legal Services took the opposite position before the same committee.[^28] Aboriginal Legal Services intervened before this court to support the Applicants. Representatives of social services agencies that assist Indigenous sex workers filed affidavits in support of the Respondent.

F. Whether Sex Work Is Inherently Exploitive Is Not Relevant To The Analysis

[40] Much time and effort in this Application has been spent litigating the question of whether sex work itself is inherently exploitive, stigmatizing, or violent. Violence and stigma have some relevance in one sense: the Applicants argue that PCEPA stigmatizes sex workers, which leads to violence, a proposition I reject for lack of empirical evidence. The question of inherent exploitation is not, however, something that this court can decide. It is simply not a legal or factual question. One’s view of the question of inherent exploitation appears to be dictated by one’s normative perspective. Parliament has chosen a particular normative perspective and it is not for this court to second-guess Parliament in that regard. In other words, it is not this court’s duty to assess whether Parliament was correct to proclaim that sex work is inherently exploitive and then legislate on that basis, except, perhaps, where it may be relevant under s. 1 of the Charter. Rather, this court’s duty is to determine whether resulting legislative scheme is Charter-compliant.[^29] In any event, much of the interpretive work around this question has been done by the Court of Appeal in N.S., as I turn to next.

G. The N.S. Decision

[41] N.S. is critical to this Application. In N.S. the Court of Appeal for Ontario dealt with three of the challenged offences that are at issue in this Application. The Court found them to be constitutional. The Applicants say that I can re-visit the constitutionality of the three sections. I disagree. I will first summarize N.S. and then deal with the question of whether I can revisit the constitutionality of the three sections.

i. Summary of N.S.

[42] N.S. was charged with offences contrary to, among other things, s. 286.1 (the purchasing offence), s. 286.2 (the material benefit offence), s. 286.3 (the procuring offence), and 286.4 (the advertising offence) of the Criminal Code. N.S. challenged the constitutionality of the material benefit offence, the procuring offence, and the advertising offence. He argued that those sections violated s. 2(b), s. 2(d), and s. 7 of the Charter. He did not challenge the constitutionality of the purchasing offence. He did not argue that his Charter rights were violated on the facts of his case. Rather, he challenged those sections based on four “reasonable hypotheticals”. The application judge found that two of the hypotheticals engaged the challenged offences in a manner that infringed s. 7.

[43] The first reasonable hypothetical involved two or more female students deciding to become sex workers to pay university tuition and living expenses. They obtain advice from an experienced sex worker. They rent premises. They hire professionals such as web designers, security guards, and photographers. The second reasonable hypothetical involved a male student. He leases a room in the same premises as the students in the first hypothetical.[^30]

[44] The application judge found, based on these reasonable hypotheticals, that all three sections violated s. 7 of the Charter and could not be saved under s. 1.[^31] He found that the students would be caught by the material benefit and procuring offences, thus engaging their s. 7 liberty interests. The cooperative arrangement, he found, was a commercial enterprise. The students, therefore, could not avail themselves of the immunity provisions in the material benefit offence. The hiring of security guards or taking of other safety measures would engage the material benefit offence, thus also engaging their security of the person interests. The experienced sex worker would be caught by the procuring offence. The trial judge also found that although the students themselves would be immune from prosecution under the advertising offence, their security of the person interest would be engaged because they could not communicate frankly with customers.[^32]

[45] The Crown appealed. The Court of Appeal allowed the appeal. Justice Hoy, for the Court, found that the three sections did not violate ss. 2(d) and 7 of the Charter. The infringement of s. 2(b) was saved by s. 1. The Supreme Court of Canada dismissed an application for leave to appeal.

[46] Justice Hoy reviewed the history accompanying the enactment of PCEPA; the decision of the Supreme Court of Canada in Bedford (SCC); Parliament’s adoption of the “Nordic Model”; as well as the purpose of PCEPA and the proper interpretation of its provisions. She noted that “the overall objective of the PCEPA is 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”.[^33]

[47] Justice Hoy further noted:

The PCEPA, however, was an explicit response to Bedford. While Parliament addressed the specific safety issues which were the focus 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 — it also chose to criminalize prostitution by prohibiting the demand and reinforcing the prohibition on the exploitation of others by third parties. As noted above, Minister MacKay was clear that Parliament sought to "create the climate in which prostitutes can take certain specific measures, steps to further protect themselves or insulate themselves from violence." He was also clear, however, that the best way to protect them was to reduce prostitution itself. This is reflected in the scheme of the PCEPA as a whole.[^34]

[48] Justice Hoy disagreed that the arrangements in the two hypotheticals constituted a commercial enterprise. The purpose of PCEPA was to prohibit the exploitation of sex workers by others. The student sex workers in the hypotheticals were not profiting from the sex work of others. They were not exploiting each other. They were pooling resources. The student sex workers could, therefore, avail themselves of the immunity provisions in the material benefit offence. She found that on the hypotheticals, the material benefit provision did not engage the security of the person.[^35]

[49] Justice Hoy also considered the procuring provision. She found that the two student hypotheticals did not engage s. 7 in relation to the procuring offence either: they were not concealing or harbouring each other, or exercising control, direction, or influence on each other. As well, the experienced sex worker did not exercise control or influence over the students or facilitate the obtaining of sexual services from the students. This advisory behaviour was, therefore, not caught by the procuring offence.[^36]

[50] Justice Hoy then considered the procuring provision on the reasonable hypothetical advanced by the intervener, Deshon Boodhoo. Mr. Boodhoo had been convicted of the material benefit and procuring offences. Mr. Boodhoo’s counsel proposed a reasonable hypothetical involving a person already engaged in sex work. On the hypothetical, the sex worker reaches out to a young, homeless, impecunious friend. The sex worker proposes that they share expenses and an apartment and work together in providing sex work. Justice Hoy did find that on Mr. Boodhoo’s hypothetical, the sex worker who recruited her friend could be found guilty of procuring and thus liable to imprisonment, engaging the liberty interest under s. 7. Justice Hoy found, however, that when the scope of s. 286.3 is properly delineated, the deprivation of the sex worker’s liberty interest was not arbitrary, overbroad, or grossly disproportionate given the objective of the procuring offence to denounce and prohibit the prostitution of others.[^37]

[51] Justice Hoy then considered the advertising offence. The application judge had found that sex workers were more likely to advertise online and communicate with customers prior to meeting. Since advertising was now prohibited, sex workers had to advertise surreptitiously and use coded language. The application judge found that the advertising offence made sex work more dangerous, thus engaging the security of the person interest.[^38] Hoy J.A. reviewed the evidence before the application judge (the evidence of Chris Atchison, who also filed an expert report in this Application). Justice Hoy found that the evidence was not that sex workers were forced to engage in riskier kinds of sex work, such as outdoor sex work. Rather, sex workers could continue to advertise but had to employ vaguer language. The impairment on security of the person from having to use vaguer language was trivial and did not amount to a deprivation of that interest. Nevertheless, Hoy J.A. found that if the advertising offence did deprive the hypothetical sex worker of her security of the person, the deprivation was not overbroad or grossly disproportionate.[^39]

[52] Justice Hoy did find – and the Attorney General conceded, as it does in this case – that the advertising offence violated s. 2(b) of the Charter. She found, however, that it was saved by s. 1. Justice Hoy rejected an argument that the material benefit, procuring, and advertising offences violate the right to freedom of association under s. 2(d) of the Charter.[^40]

ii. N.S. is binding on this court

[53] The Applicants argue that they have presented evidence in this Application that fundamentally shifts the parameters of the debate such that this court can revisit the constitutionality of the three challenged offences that were upheld in N.S. They argue that the Court of Appeal deliberately constrained its decision in N.S. to avoid foreclosing this relief. The Applicants further argue that N.S. was “an incomplete and artificial exercise that arose in the particular circumstances of a criminal prosecution, it does not reflect the true impact of the impugned provisions at issue in this application, and it is readily distinguishable.” The record in that case was thin, consisting of hypothetical scenarios only. They also point out that the Court of Appeal did not consider the constitutionality of the purchasing offence, which is a fundamental part of the legislative scheme. Indeed, the Applicants argue that the Court of Appeal’s analysis did not consider the “true impact” of the challenged offences. The Applicants argue that N.S. did not consider the entire legislative scheme, the other challenged offences, or the realities of the impact of the challenged offences on the lives of sex workers. That evidence is in the record before this court but was not before the Court of Appeal.[^41]

[54] With respect, I disagree with the Applicants.

[55] The principle of vertical stare decisis means that a lower court must apply the decision of a higher court to the facts before it.[^42] There are narrow exceptions to the rule of vertical stare decisis. A trial judge can hear and decide Charter arguments that were not raised in an earlier case, constituting a new legal issue. A trial judge can also revisit an issue if there are “significant developments in the law, or a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.”[^43] This threshold is not an easy one to reach. It is not an invitation to reconsider binding authority simply because there is new evidence. The exception can be engaged when the underlying social context of the earlier decision is profoundly altered.[^44] The Supreme Court of Canada summed up the second exception this way:

To reiterate: departing from vertical stare decisis on the basis of new evidence is not a question of disagreement or interpretation. For a binding precedent from a higher court to be cast aside on the basis of new evidence, the new evidence must “fundamentally shif[t]” how jurists understand the legal question at issue. It is not enough to find that an alternate perspective on existing evidence might change how jurists would answer the same legal question.[^45]

[56] The narrow exceptions to vertical stare decisis do not apply here for several reasons. N.S. was decided in the circumstances of a criminal prosecution. That is the usual way that constitutional challenges to criminal law are dealt with. It is civil applications such as this, and the original application in Bedford, that are unusual.

[57] As well, the evidentiary exception cannot be engaged simply by filing a fuller record. Much of the decision in N.S. is based on statutory interpretation. Virtually all the Applicants’ material was filed prior to the decision in N.S. Many of the factual assertions made in the Applicants’ material were based on interpretations of law that fundamentally differ from the interpretation of the Court of Appeal in N.S. The record in N.S. included one of the Applicants’ own experts. The Applicant CASWLR was granted standing. I appreciate that CASWLR was precluded from filing an evidentiary record before the Court of Appeal, but it was represented at the hearing, and counsel for the Alliance made submissions consistent with their position in this court.

[58] I also respectfully disagree with the Applicants that the Court of Appeal did not consider the legislative scheme as a whole. Justice Hoy very clearly did so. N.S. therefore informs the analysis of ss. 7, 2(b), and 2(d) in relation to the sections that were not challenged in that case. Although s. 15 of the Charter was not in issue in N.S., Hoy J.A.’s interpretation of the objectives of PCEPA is obviously both binding and informative in relation to that issue.

[59] I note that N.S. was released on February 24, 2022. This Application was heard during the first week of October 2022, a little more than six months later. There was obviously no change in the social context of sex work in those six months. The exception cannot be engaged on that basis.

[60] Even if I am wrong in deciding the evidentiary exception is not made out, as the trier of fact, I find the evidentiary record, quite simply, does not demonstrate a basis for finding that PCEPA repeats the harms described in Bedford.

[61] Finally, I have reviewed N.S. in detail, over a lengthy period of time, as I have prepared these reasons. It is, of course, awkward for a superior court judge to pronounce judgment on the Court of Appeal, but in a very real sense that is what the Applicants have asked me to do. I say very respectfully that I agree with N.S. I think it correctly interprets PCEPA. I also think it correctly upholds the constitutionality of the material benefit, procuring, and advertising offences. Even if the exception to vertical stare decisis applied and I could revisit N.S. I would not.

III. The Scheme Of PCEPA

[62] The challenged offences are contained in two Parts of the Criminal Code. The stopping traffic offence and the communication offence are both contained in Part VII: Disorderly Houses, Gaming and Betting. The other provisions are contained in Part VIII: Offences Against The Person And Reputation. I will first summarize the objectives of the legislation; then summarize those sections that fall under Part VIII; and then those that fall under Part VII.

A. The Objectives Of PCEPA

[63] Bill C-36 was specifically designed as a response to Bedford (SCC). The formal title of the legislation is An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts.[^46] When Justice Minister McKay introduced Bill C-36 he noted that the new law signalled “a significant shift” in Parliament’s approach to sex work. The bill shifted criminal law policy from “treatment of prostitution as a nuisance toward treatment of prostitution for what it is: a form of exploitation.” The Minister went on to note that “the impact of the new prohibitions would be borne predominantly by those who purchase sex and persons who exploit others through prostitution. The bill is intended to reduce the demands for prostitution”. The Minister also noted that “an additional objective is to reduce the likelihood of third parties facilitating exploitation through prostitution for their gain, and the key and operative word here is ‘exploitation’”. [^47]

[64] The objectives of PCEPA are set out in the preamble:

Whereas the Parliament of Canada has grave concerns about the exploitation that is inherent in prostitution and the risks of violence posed to those who engage in it;

Whereas the Parliament of Canada recognizes the social harm caused by the objectification of the human body and the commodification of sexual activity;

Whereas it is important to protect human dignity and the equality of all Canadians by discouraging prostitution, which has a disproportionate impact on women and children;

Whereas it is important to denounce and prohibit the purchase of sexual services because it creates a demand for prostitution;

Whereas it is important to continue to denounce and prohibit the procurement of persons for the purpose of prostitution and the development of economic interests in the exploitation of the prostitution of others as well as the commercialization and institutionalization of prostitution;

Whereas the Parliament of Canada wishes to encourage those who engage in prostitution to report incidents of violence and to leave prostitution;

And whereas the Parliament of Canada is committed to protecting communities from the harms associated with prostitution;

[65] The government’s Technical Paper stated that the victims of sex work include individuals who are exploited, and communities, including children, who are exposed to it. The legislation recognizes that “those who capitalize on that demand, i.e., third parties who economically benefit from the sale of those services, both cause and perpetuate prostitution’s harms.”[^48]

[66] As Hoy J.A. noted in N.S. the overall objective of the PCEPA is 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. She stated that PCEPA has three purposes:

First, 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; second, 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, third, to mitigate some of the dangers associated with the continued, unlawful provision of sexual services for consideration.[^49]

[67] Hoy J.A. noted that the third object is to ensure that, as much as possible, sex workers can avail themselves of safety measures and report incidents of violence without fear of prosecution. She noted that the Crown had argued that PCEPA permitted some measures to protect sex workers as an ancillary measure. She also noted that the application judge had described one of the purposes of PCEAP as “to protect sex workers from violence, abuse, and exploitation and protect the health and safety of sex workers.” Hoy J.A. disagreed with that characterization. Rather, Hoy J.A. found that the safety-related purposes of PCEPA was “limited to ensuring that 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.”[^50]

[68] These reasons will refer to the three objectives of PCEPA as interpreted by Hoy J.A. many times. As a matter of shorthand, I will on occasion simply refer to them as:

• The demand reduction objective;

• The exploitation of others objective; and,

• The safety-enhancing objective.

B. The Purchasing Offence

[69] Section 286.1(1) of the Criminal Code states:

286.1 (1) Everyone who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person is guilty of

(a) an indictable offence…; or,

(b) an offence punishable on summary conviction…

[70] Section 286.1(1) is the key section of PCEPA. It represents the most important change from the pre-Bedford regime. The section prohibits the purchase of sex. It also prohibits communications for the purpose of purchasing sex. In other words, a person buying sex – I will call him the customer – can be found criminally liable for buying sex. The customer can also be found criminally liable by communicating with anyone for the purpose of buying sex.

[71] The purpose of the purchasing offence is to reduce the demand for commercial sex with a view to ultimately abolishing sex work, in keeping with the overall objective of PCEPA.[^51] The sale of one’s own sexual services does not attract criminal sanction.[^52] Neither is communicating for the purpose of selling one’s own sexual services. The immunity provisions mean that no person can be prosecuted for selling their own sexual services. The immunity provisions also mean that no person can be prosecuted as a party to the offence of purchasing sexual services.[^53] Section 286.5(1) of the Criminal Code states:

286.5 (2) No person shall be prosecuted for aiding, abetting, conspiring or attempting to commit an offence under any of sections 286.1 to 286.4 or being an accessory after the fact or counselling a person to be a party to such an offence, if the offence relates to the offering or provision of their own sexual services.

[72] The purchasing offence is a hybrid offence. The maximum punishment when prosecuted by indictment is five years imprisonment.

C. The Material Benefit Offence

[73] Section 286.2(1) of the Criminal Code states:

286.2 (1) Every person 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

(a) an indictable offence…; or

(b) an offence punishable on summary conviction.

[74] This section modernizes the unconstitutional “living on the avails” section struck down in Bedford (SCC). The purpose of the section is to denounce and prohibit the development of an economic interest in the sex work of others. The section is also designed to inhibit the institutionalization and commercialization of sex work.[^54]

[75] Parliament immunized from prosecution those who benefit from their own sexual services: s. 286.5(1)(a) of the Criminal Code. Parliament created other exceptions to the material benefit offence. Section 286.2(4) states:

286.2 (4) Subject to subsection (5), subsections (1) and (2) do not apply to a person who receives the benefit

(a) in the context of a legitimate living arrangement with the person from whose sexual services the benefit is derived;

(b) as a result of a legal or moral obligation of the person from whose sexual services the benefit is derived;

(c) in consideration for a service or good that they offer, on the same terms and conditions, to the general public; or

(d) in consideration for a service or good that they do not offer to the general public but that they offered or provided to the person from whose sexual services the benefit is derived, if they did not counsel or encourage that person to provide sexual services and the benefit is proportionate to the value of the service or good.

[76] The purpose of these exceptions is to ensure that there is no criminal liability unless there is an exploitive relationship.[^55] In other words, no person can be convicted under the material benefit offence if they are in a legitimate family or business relationship with the person providing sexual services. The Technical Paper goes on to explain that that the exceptions apply in the following situations:

• in the context of a legitimate living arrangement, for example by a spouse, child or roommate of the person who provides the benefit;

• as a result of a legal or moral obligation, for example by a dependent parent of the person who provides the benefit or where a gift is purchased with the earnings of sex work;

• in consideration for goods or services offered on the same terms and conditions to the public, such as by an accountant, landlord, pharmacist or security company; and,

• in consideration for a good or service that is offered informally, for example by a person who provides protective or administrative services, provided that the benefit received is proportionate to the value of the good or service provided and the person who provided the service did not encourage, counsel or incite the provision of sexual services.[^56]

[77] There are, however, exceptions to the exceptions set out in s. 286.2(4). Section 286.2(5) of the Criminal Code states:

286.2 (5) Subsection (4) does not apply to a person who commits an offence under subsection (1) or (2) if that person

(a) used, threatened to use or attempted to use violence, intimidation or coercion in relation to the person from whose sexual services the benefit is derived;

(b) abused a position of trust, power or authority in relation to the person from whose sexual services the benefit is derived;

(c) provided a drug, alcohol or any other intoxicating substance to the person from whose sexual services the benefit is derived for the purpose of aiding or abetting that person to offer or provide sexual services for consideration;

(d) engaged in conduct, in relation to any person, that would constitute an offence under section 286.3; or

(e) received the benefit in the context of a commercial enterprise that offers sexual services for consideration.

[78] Thus, the immunity afforded to non-exploitive business and familial relationships will not apply if the person receiving the benefit uses violence, abuses a position of trust, provides drugs or alcohol, or procures the sex worker. The immunity also does not apply in the context of a commercial enterprise offering the sale of sexual services, such as a strip club, massage parlour, or escort agency where sex work takes place.[^57] As will be seen later in these reasons, the Court of Appeal interpreted the phrase “commercial enterprise” to involve the exploitation of another’s sexual labour for profit. The Court distinguished between cooperative arrangements where costs are shared between sex workers and commercial enterprises where third parties profit.[^58]

[79] In other words, PCEPA prohibits exploitive relationships relating to the purchase of sex. The exceptions and the exceptions to the exceptions in PCEPA are structured to exempt non-exploitive personal and business relationships from criminal liability. They are also structured to prohibit commercial enterprises from receiving a material benefit from the sexual services of sex workers.

[80] The material benefit offence is a hybrid offence. The maximum punishment when prosecuted by indictment is ten years imprisonment.

D. The Procuring Offence

[81] Section 286.3(1) of the Criminal Code states:

286.3 (1) 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.

[82] This section prohibits the procurement or recruitment of persons for sex work. Specifically, the offence is committed in two different ways. A person can procure another by causing, inducing, or persuading another person to engage in sex work. A person can also recruit, hold, conceal, or harbour a person for the purposes of sex work. A person can exercise control, direction, or influence over the movements of a sex worker. The objective of this section is to denounce and prohibit the procurement of others as part of the overall objective to reduce the demand for sex work.[^59]

[83] The government’s Technical Paper described the difference between the material benefit offence and the procuring offence. The difference hinges on the level of involvement in the sex work of others. Active involvement in the provision of another’s sex work is likely to be caught by both the procuring and the material benefit offence; more passive involvement is likely to be caught only by the material benefit offence. The Technical Paper illustrated the difference by describing a “classic pimp” and a bouncer at a strip club where sexual services are provided. The “classic pimp” generally induces or causes others to offer or provide sexual services. The “classic pimp” also benefits from the sex worker’s sale of sex. The bouncer knows about the sex work and derives a benefit from it but does not actively incite the provision of sexual services. Thus, the bouncer is likely to be caught only by the material benefit offence and not the procuring offence (although the bouncer may benefit from the immunity provisions in the material benefit offence).[^60]

[84] In N.S., Hoy J.A. described the purpose of the procurement section as the denunciation and prohibition of the promotion of the sex work of others to protect communities, human dignity, and equality. The aim is to deter encouraging entry into sex work by criminalizing those who do the encouraging.[^61]

[85] Both the conduct component and the mens rea requirement for the two ways of committing this offence are narrow. The Crown must prove that the accused specifically intended to procure a person to provide sexual services for consideration; or specifically intended to recruit, conceal, or harbour a sex worker or exercise control, direction, or influence over the movements of that sex worker. In other words, there are two ways to commit the offence. Procuring can encompass recruiting or luring a person into sex work. Procuring can also encompass controlling a sex worker. The Crown can prove one method, but need not prove both. A shared cooperative arrangement is not caught by the procuring provision because of the purpose requirement. It is only an offence if the accused intended to exercise influence over the sex worker, as Justice Hoy explained:

The offence in s. 286.1 is obtaining for consideration or communicating with anyone for the purpose of obtaining for consideration the sexual services of a person. The offence is not providing sexual services for consideration. The purpose requirement in s. 286.3 is therefore tied directly to the asymmetrical scheme of the PCEPA. The Crown must prove that the accused intended to assist the principal in the commission of the offence in s. 286.1.[^62]

[86] Justice Hoy also explained that merely giving advice would not be caught be the section due to the high mens rea requirement. It is simply not conduct that is captured by the procuring provision when considering the asymmetrical scheme of the purchasing offence.[^63]

[87] The procuring offence only involves the sexual exploitation of others. There are obviously no immunity provisions. It is clearly the most serious of all the challenged offences in PCEPA. That seriousness is reflected in both the narrow mens rea requirement, as well as the fact that it is a straight indictable offence punishable by up to 14 years imprisonment.

E. The Advertising Offence

[88] Section 286.4 of the Criminal Code states:

286.4 Everyone who knowingly advertises an offer to provide sexual services for consideration is guilty of

(a) an indictable offence…; or

(b) an offence punishable on summary conviction.

[89] This section prohibits advertising the sale of sexual services. Like the material benefit offence, however, Parliament immunized against prosecution those who advertise their own sexual services: Criminal Code s. 286.5 (1).

[90] The reach of this section is broad. It catches, potentially, publishers and website administrators.[^64] The purpose of the section is to reduce the demand for sex work by targeting the promotion of sexual services through advertising.[^65]

[91] The Court of Appeal found in N.S. that the advertising offence violated s. 2(b) of the Charter but found that it was saved by s. 1. The Court therefore upheld the constitutionality of the advertising offence.

[92] The advertising offence is a hybrid offence. The maximum penalty when prosecuted by indictment is five years imprisonment.

F. The Stopping Traffic Offence

[93] Section 213(1) of the Criminal Code states:

213 (1) Everyone is guilty of an offence punishable on summary conviction who, in a public place or in any place open to public view, for the purpose of offering, providing or obtaining sexual services for consideration,

(a) stops or attempts to stop any motor vehicle; or

(b) impedes the free flow of pedestrian or vehicular traffic or ingress to or egress from premises adjacent to that place.

[94] The purpose of this section is to modernize the existing legislation and protect residents of communities from harassment by those who purchase and sell sexual services as set out in the Preamble to PCEPA. The government’s Technical Paper noted that sex work can negatively affect communities through a variety of nuisances: drug-related crime, and dangerous or unsanitary refuse such as used condoms or drug paraphernalia. The predecessor provisions were not at issue in Bedford. [^66]

[95] The stopping traffic offence was upheld in the Prostitution Reference and not challenged in Bedford (SCC) or N.S. The stopping traffic offence is a straight summary conviction offence with a maximum penalty of 6 months imprisonment.

G. The Communication Offence

[96] Section 213(1.1) of the Criminal Code states:

213 (1.1) Everyone is guilty of an offence punishable on summary conviction who communicates with any person — for the purpose of offering or providing sexual services for consideration —  in a public place, or in any place open to public view, that is or is next to a school ground, playground or daycare centre.

[97] Public place is defined as:

213 (2) In this section, public place includes any place to which the public have access as of right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view.

[98] The Technical Paper also noted the problem of the exposure of children to the sale of sex as a commodity and the danger of being drawn into a life of exploitation. The protection of children from these harms, as well as the prevention of luring children for the purpose of sexual exploitation, are also objectives of PCEPA. Thus, the objective of s. 213(1.1) is to protect children from exposure to prostitution, and from harms associated with prostitution, such as drug-related activities or used condoms. As the Technical Paper notes:

Bill C-36 also achieves its goal of protecting communities by criminalizing communicating for the purposes of selling sexual services in specific locations that are designed for use by children… The main objective of the offence, as enacted, remains the same – to protect children from exposure to prostitution, which is viewed as a harm in and of itself, because such exposure risks normalizing a gendered and exploitative practice in the eyes of impressionable youth and could result in vulnerable children being drawn into a life of exploitation. The offence also protects children from additional harms associated with prostitution, including from being exposed to drug-related activities or to used condoms and dangerous paraphernalia. In not criminalizing public communications for the purposes of selling sexual services, except in these narrow circumstances, Bill C-36 recognizes the different interests at play, which include the need to protect from violence those who sell their own sexual services, as well as the need to protect vulnerable children from prostitution’s harms.[^67]

[99] The communications offence is a straight summary conviction offence with a maximum of 6 months imprisonment.

IV. Facts

A. My Approach To The Evidence As Trier Of Fact

i. Expert evidence

[100] Expert evidence may be admitted where it meets the following criteria:

• Relevance;

• Necessity in assisting the trier of fact;

• Lack of an exclusionary rule; and,

• A properly qualified expert.[^68]

[101] In R. v. Abbey, Doherty J.A. suggested a two-step approach to the admissibility of expert evidence. At the first step, the judge determines whether the proposed expert evidence meets the Mohan criteria. At the second step, the judge performs a gate-keeping function. The judge determines whether the benefits of the proposed evidence outweigh the potential harm to the trial process. The benefit side of the process evaluates the probative value of the proposed expert evidence. The probative value includes the methodology used by the expert, the expert’s expertise, and the extent to which the expert is objective and impartial. The costs include the possibility that the jury will abandon its fact-finding role to the expert; the potential for complication as well as distraction from the real issues; and the use of valuable jury time where the evidence does not sufficiently merit it.[^69]

[102] An expert witness has a broad duty to the court. The expert is required to provide independent assistance by way of an objective, unbiased opinion and should never assume the role of an advocate when giving their opinion. There is a threshold admissibility requirement in relation to independence and impartiality. Once that threshold is met, any concerns about the expert’s compliance with their duty to the court should be part of the gatekeeping function. The judge must determine whether the lack of independence renders the expert incapable of giving an impartial opinion. The expert must be aware that their duty to the court overrides their obligation to the party calling them.[^70]

[103] The only reference to expert evidence on an application in the Rules of Civil Procedure is set out in Rules 39.01(7) and 53.03(2.1). Sub-rule 39.01(7) of the Rules of Civil Procedure sets out that expert evidence must include the information set out in sub-rule 53.03(2.1). In addition to tombstone information, that sub-section requires that the expert set out their qualifications, employment, and education, the instructions provided to the expert, and an acknowledgment of the expert’s duty of impartiality. Additionally, the expert must set out:

53.03(2.1) 4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.

5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.

6. The expert’s reasons for his or her opinion, including,

i. a description of the factual assumptions on which the opinion is based,

ii. a description of any research conducted by the expert that led him or her to form the opinion, and iii. a list of every document, if any, relied on by the expert in forming the opinion.

[104] As in Bedford (SCJ), the parties in this case filed large amounts of expert evidence. The Applicants relied on seven expert witnesses. The Respondents relied on five expert witnesses (four engaged by the Attorney General of Canada, and one by the Attorney General of Ontario). The expert opinions also included very large amounts of source material. All the experts filed reports; some filed additional reply reports. All were cross-examined, generating thousands of pages of transcripts. Numerous exhibits were appended to the cross-examinations.

[105] As Himel J. observed in Bedford (SCJ), the Mohan/Abbey approach is well suited to trials but not well suited to civil applications. She observed that parties may be more concerned with placing every potentially important piece of evidence in the record than with conducting an admissibility analysis. And yet, the application judge cannot abandon the gatekeeper role.[^71]

[106] In a jury trial the trial judge conducts a voir dire to determine threshold admissibility. The jury has the benefit of seeing and hearing the proposed expert. A trial is also self-regulating in the sense that 11 expert witnesses would be an unusually large number in either a civil or criminal trial. A trial is also self-regulating in that counsel are much more likely to take a more focussed approach during cross-examination before a jury than they might during cross-examination on an affidavit.

[107] Bearing those observations in mind, I adopt the approach taken by Himel J. in Bedford (SCJ), and for the same reasons:

In the case before me, it is not practicable to engage in an admissibility analysis for each piece of evidence contained in the record. Furthermore, the parties did not object to the opinion evidence tendered by the opposing side. I am aware that in Charter cases, judges are also the triers of fact. Judges are expected to disabuse themselves of irrelevant and inflammatory evidence: see Masters' Assn. of Ontario v. Ontario (Attorney General), [2001] O.J. No. 1444 (Ont. Div. Ct.). While the evidence may be received at the hearing, it may not meet the strict rules of admissibility outlined in the Mohan and Abbey cases. Rather than engage in a time-consuming analysis of each piece of evidence, I have chosen to exercise the gatekeeper function by assigning little or no weight to evidence which does not meet the Mohan and Abbey requirements. This is the most practical method to address the concerns raised about the legal relevance and reliability of certain expert opinions in the circumstances of this case.[^72]

[108] The Court of Appeal found that Himel J. was well aware of the admissibility principles and risks governing expert evidence.[^73] Neither that Court nor the Supreme Court of Canada disapproved of her approach. I am aware that White Burgess post-dates Bedford (SCC). Nonetheless, there is no reason to doubt that the approach set out by Himel J. remains valid. If it were otherwise, on a large application the trial judge would spend as much time and energy on admissibility as on all other issues.

ii. Are the experts in this case biased?

[109] Several of the Applicants’ expert witnesses have been heavily involved in advocacy for the rights of sex workers. Several of them have taken very public positions in favour of the decriminalization and regulation of sex work. Professors Bruckert and Atchison testified before both the House and Senate Committees in opposition to PCEPA.

[110] An expert can be an advocate.[^74] It would be unrealistic, and unfair, to expect that persons who have expertise in a controversial field would simply keep their expertise to themselves. It is in no way inappropriate for a party to call an expert where that expert has also engaged in advocacy in their field. The expert must, however, abandon advocacy when giving their opinion. The question of advocacy is generally one of weight for the jury. An expert can become so identified with a particular position that they become partial, and their evidence inadmissible.

[111] There are times when some of the Applicants’ experts veered into advocacy. Regrettably, some of the research appears to conform with the policy positions, normative views, and pre-conceived notions of the researcher. Virtually all the Applicants’ experts (and the Applicants themselves) adamantly take the normative position that sex work is work, that sex work is not inherently exploitive or dangerous, and that sex workers have agency. As a result, the Applicants’ experts simply reject Parliament’s position, as reflected in the Preamble to PCEPA, that sex work is inherently harmful and exploitive. With respect – and I appreciate that all the experts filed their initial reports prior to the Court of Appeal’s decision in N.S. – the question of inherent exploitation has been answered, at least from the point of view of constitutional analysis, and, as I have mentioned, is largely irrelevant to the task this court must perform. Parliament’s view is that sex work is inherently exploitive even if an individual sex worker has made a conscious choice to sell sexual services.[^75]

[112] Moreover, some of the experts in their academic papers are somewhat less adamant about agency than they are in the reports themselves. For example, even in an article calling for the recognition of sex work as valuable work for Canadian sex workers (given their personal circumstances), Professor Benoit and her fellow authors state:

Recent research on sex workers’ working conditions is mixed. Some studies have found sex work to be satisfying for workers due to its flexibility, significant earnings and wide control over client relations, especially for those whose work is organized through digital technologies that aid in increasing workers’ decision-making power (Abel, 2011; Sanders et al., 2016). Other studies have found unpredictable income and substandard working conditions (Orchiston, 2016; Phrasisombath et al., 2012)…[^76]

[113] I also found that there was some denigration of opposing views. For example, Professor Krusi stated:

Overwhelmingly, scholars who have made categorical claims that all sex work is coercive and exploitative have been criticized and discredited for the methodological shortcomings of their research that impair validity of analyses and research results.[^77]

[114] Ironically, this is the mirror image of the Respondents’ experts in Bedford (SCJ) (although in fairness to Professor Krusi, I found in reading the cross-examination on her affidavit that she answered questions forthrightly). In the case before Himel J., the Respondents’ experts largely maintained that sex work is inherently harmful and a form of violence against women. Justice Himel found that evidence to be problematic, as some of the experts had veered into advocacy and used inflammatory language that detracted from their conclusions.

[115] As a result, Himel J. assigned less weight to the evidence of some of the Respondents’ experts in Bedford.[^78] The Applicants have tried to bootstrap Himel J.’s position into a finding that this Court ought to reject Parliament’s policy choice as explained by the government’s Technical Paper. The Applicants have criticized the government’s Technical Paper as essentially recycling the evidence of experts rejected by Himel J. in Bedford (SCJ). The Applicants stated in their Reply Factum:

… both Canada and Ontario suggest that it is outside of the Court’s proper role to question Parliament’s conclusion that sex work is inherently exploitative. However, this is a shell game. The Technical Paper merely repeats the views of prohibitionist activists that were considered and rejected in Bedford. Canada and Ontario embrace the Technical Paper without acknowledging that it is the government of Prime Minister Stephen Harper’s effort to rewrite the facts that this Court found in Bedford. Considered in this light, it is clear that the claims of inherent exploitation are rotten at their core.

[116] With respect, the Applicants significantly overstate what Justice Himel said in Bedford (SCJ). Justice Himel not expressly reject empirical evidence that the Technical Paper embraced. Justice Himel also did not specifically reject the proposition that sex work is “inherently exploitive”. She did something different: she assigned less weight to those experts who took a dogmatic view of the question because it coloured the rest of their evidence.[^79]

[117] In contrast, I found that advocacy was less of an issue with the Respondent’s experts, although some of those experts have also been advocates. It is also obviously true that some of the Respondent’s experts take a normative position that is opposed to that of the Applicants. For example, Professor Haak, who conducted a literature review for the Attorney General of Canada, takes a position that is opposed to the normalization and decriminalization of sex work.[^80] She has written at least one op-ed in The Globe And Mail criticizing Amnesty International for supporting decriminalization and regulation.[^81] I take her position into account, as I do with the Respondent’s experts.

[118] After my review of the expert reports in this case, and careful review of Bedford (SCJ), I find that what separates the researchers are less disagreements about research methods, or disagreements about the validity of results, or even about the results themselves. What really separates them are their normative judgments about the nature of sex work.

[119] One caution: there are many opinions and assertions of fact set out by the experts in this case. Because of the volume, I obviously cannot comment on all of them. I have tried to limit my comments to those opinions and facts that are most pertinent to the analysis. If I have not responded to a particular opinion or assertion of fact it should not be taken as agreement.

iii. Fact witnesses

[120] Some of the non-expert witnesses in this case also have their preconceived notions. Non-expert witnesses do not have the same duty to the court as expert witnesses. Several of the Applicants’ witnesses expressed strongly negative views about PCEPA and believe that the decriminalization (and possibly regulation) of sex work will make their lives better. I do not doubt that these are sincerely held beliefs. I also do not doubt the empirical observations they have made with their own eyes or what they have been told by sex workers or former sex workers. I find, however, that their point of view has coloured their evidence.

[121] I note that eight individuals affiliated with social services agencies or non-profit organizations filed affidavits on behalf of the Applicants. All but one of these agencies or non-profit organizations is part of the Canadian Alliance For Sex Work Law Reform (which I will refer to as “CASWLR”). CASWLR is, obviously, an Applicant in this proceeding. CASWLR is an umbrella organization. No group can become a member unless it supports the full decriminalization of sex work. These affiants were the following people:

• Jenn Clamen is the national coordinator of CASWLR.

• Sandra Wesley is the Executive Director of Stella, a non-profit organization in Montreal run by and for sex workers. Stella is a member of CASWLR.

• Nora Butler-Burke engages in sex worker support for Action Santé Travesti(e)s et Transsexuel(le)s du Québec (“ASTT(e)Q”), a non-profit organization in Montreal that serves low-income trans people. ASTT(e)Q is a member of CASWLR.

• Elene Lam is the Executive Director and founder of Butterfly, an Asian and Migrant Sex Workers Support Group. Butterfly is a member of CASWLR.

• Ellie Ade-Kur is Vice Chair of Maggie’s Toronto Sex Workers Action Project. Maggie’s is a member of CASWLR.

• Danielle Cooley is a co-facilitator of SACRED, a program for Indigenous sex workers at Peers Victoria Resource Centre. Peers is a member of CASWLR.

• Jessica Quijano is coordinator of Iskweu Project, a project of the Native Women’s Shelter of Montreal. Prior to that she was a street outreach worker for REZO, a social services agency for male and trans sex workers. REZO is a member of CASWLR.

• Laurel Cassels is the Community Programs Coordinator at Daniel McIntyre/St. Matthews Community Association (DMSMCA). DMSMCA is not a member of CASWLR.

[122] As an example, Ms. Clamen herself has been an advocate for decriminalization since 2002.[^82] She testified before the Parliamentary committee opposing the enactment of PCEPA. Obviously Ms. Clamen and the other affiants have honestly held beliefs. They have every right to advocate for this or any other cause. Let me be very clear that I make no suggestion of impropriety or bad faith whatsoever on their part. As well, I do not single them out to be condemned, but rather to applaud their commitment and dedication, even where I find myself in respectful disagreement. As well, the affiants are not under the same obligations and duties as the experts. None of this makes their evidence disqualifying. Indeed, much of it is valuable, but these affiants have a point of view and as a trier of fact I must bear that in mind.

[123] The other affiants, such as the Applicants’ social services agency workers, tended to blame at least some of the ills associated with sex work (and in some cases all of the ills) on the asymmetrical prohibition scheme of PCEPA. As I will explain later in these reasons, at least part of that blame is based on fundamentally mistaken interpretations of PCEPA. These social services agency workers – not only those who filed affidavits for the Applicants but also those who filed evidence for the Respondents – are people who work with some of the most marginalized and vulnerable, and unfortunate populations in our country. They deserve praise, respect, and recognition from society. Unfortunately, they receive very little. Again, I applaud them even where I find myself in respectful disagreement. I do not doubt their honesty and commitment but their approach – to disproportionately blame asymmetric prohibition – minimizes the complexity of the issues and only targets one factor. That also causes me to approach their evidence with some caution.

[124] The individual Applicants filed affidavits outlining their experiences and setting out what they believe are the harms that are caused by or perpetuated by PCEPA. They all have a point of view, and they are entitled to it. Again, I applaud their bravery and commitment in coming forward – it takes real courage to come forward as they have. That point of view has caused them to over-reach or over-state the case. For example, in her affidavit Alessa Mason states:

Our lives are shaped by the PCEPA. It determines everything we do – the way that we conduct our work, how we interact with clients, and the social stigma and its consequences that we are subjected to everyday. The PCEPA has institutionally and systemically victimized sex workers through creating the conditions that put our lives, well-being, and prosperity at risk.[^83]

[125] I do not doubt Ms. Mason’s sincerity and dedication, but as will become clear in these reasons, there is little evidence to support this very adamant statement. Most of the other Applicants made similar statements. No doubt Ms. Mason and the other Applicants very sincerely holds these firm views, their evidence also appears to be coloured as a result.

[126] The affidavits of the individual Applicants (like the reports of the expert witnesses) also betrayed a misunderstanding of the interpretation and reach of the challenged offences, as I will explain.

[127] What about the Respondents’ witnesses? There is no doubt that many of these witnesses also hold strong views of the issues. Some of them have also been involved in advocacy. Diane Redsky is the Executive Director of Ma Mawi We Chi Itata Centre Inc. Ma Mawi is an Indigenous-led social services agency in Winnipeg. Ms. Redsky testified in favour of Bill C-36 in the House Standing Committee. Megan Walker is the former Executive Director of the London Abused Woman’s Centre. Ms. Walker also testified in favour of Bill C-36 in the House Standing Committee. As with the Applicants’ affiants, I applaud their commitment and dedication in dealing with some of this country’s most vulnerable and marginalized people. And, as with the Applicants’ affiants, none of this makes the evidence disqualifying – again, much of their evidence is valuable – but as a trier of fact I must bear in mind the fact that these witnesses have also been advocates.

[128] Although none of the police officers who filed affidavits testified before either the House or Senate committees, the president of the Canadian Police Association (an organization representing front-line police officers) testified and endorsed Bill C-36, as it then was. Rick Hanson, the Chief of the Calgary Police Service, and Eric Jolliffe, the Chief of the York Regional Police Service, also testified before the House committee and endorsed Bill C-36.[^84] There is no doubt that law enforcement generally was in favour of legislation that increased their ability to police the sex trade. There is a genuine debate about the appropriateness of that policy, but there is no doubt that the police officers who provided affidavits saw it as a good thing. They may well be right, but as trier of fact, I must also keep it in mind that they also have a point of view.

iv. Conclusions regarding the weight to be given the factual witnesses

[129] As I keep noting, an important theme in this judgment is the argument over whether sex work is simply a form of work or is a highly gendered form of exploitation. Obviously PCEPA takes the latter view. The evidence of the witnesses for each side reflects this argument. Overall, I found that expert and lay affiants submitted by the Applicants were often (although not universally) unwilling to acknowledge the reality that exploitation and trafficking play a significant, and not just a marginal role, in the sex industry. They consistently downplayed the phenomenon of exploitation, and consistently extrapolated from qualitative studies with limited numbers of selected sex workers. They continued to filter their experiences and their conclusions through the normative lens of sex-work as regular work. These problems detract from the weight that I can give to their evidence.

[130] The social services workers and police officers who filed affidavits for the Respondents tended to view the sex trade through the opposite end of the normative lens. In contrast to the Applicants, however, I found that many of these individual affiants were more willing to acknowledge that there might have been perspectives other than their own. For example, even though social services agency workers and police officers largely worked with victims of trafficking and exploitation, they tended to acknowledge that there were sex workers who worked independently as a matter of choice. For example, Cora-Lee McGuire, executive director of the Ontario Native Women’s Association stated:

ONWA recognizes and appreciates that some women freely choose to partake in the sex trade as consenting adults, however, this is not the reality of many Indigenous women.[^85]

[131] As another example, Andrea Rittenhouse stated:

I do not doubt that there are individuals who have voluntarily chosen to become involved in the sex industry, and who work independently or with other individuals who identify as sex workers.[^86]

[132] Detective Brian McGuigan of the Edmonton Police stated that most sex workers will initially claim to have entered the sex trade voluntarily and be working independently, but most will eventually admit that they work under the control of an exploiter. Detective McGuigan has, however, encountered sex workers who were involved in the sex industry of their own free will. He has also encountered sex workers who worked collaboratively. He noted that such sex workers usually had control over advertisements, services offered, movements and money.[^87] Staff Sgt. Colin Organ of the York Regional Police deposed to much the same thing.[^88]

[133] Thus, the social services workers and police officers appeared more willing to acknowledge a perspective that left room for another point of view. This willingness adds to the weight that I can give this evidence.

B. The Sex Industry In Canada

i. The different views of the parties and the intervenors

[134] Studying the commercial sex industry is difficult and complicated. The sex industry is also difficult to characterize – as noted by the ways in which the parties part issue. Is sex work a form of labour like any other? Or is it highly gendered and exploitive? Do people choose sex work or are they trafficked into it? Do they choose sex work and then encounter traffickers and exploiters and are then intimidated or coerced into working for someone else? Or does the opposite happen – are they trafficked into sex work and then eventually make a free and voluntary decision to choose to continue? Or is there a spectrum of experience?

[135] The Applicants, and some of the intervenors who support them, take the position that sex workers exercise agency and decision-making even where their options are constrained. The Respondents agree that there are sex workers who enter the sex industry voluntarily and exercise agency. The Respondents also take the position that large numbers of sex workers – frequently the most marginalized and vulnerable – are coerced, lured, or trafficked into the sex industry.

[136] As the Applicants put it in their factum, the Application “does not challenge the criminalization of forcing sex without consent.”[^89] That is well and good that the Applicants do not challenge the constitutionality of laws prohibiting sexual assault and human trafficking, but the coercive aspects of sex work cannot simply be assumed away for the purposes of Charter analysis.

[137] At least one intervenor, the Sexual Health Coalition, took the position that the fundamental question is one of personal autonomy, rather than agency or choice of occupation:

All persons have the right to place conditions on the sexual activity in which they will engage. The impugned provisions place limits on sex workers’ ability to negotiate those conditions. Contrary to the Respondent’s assertion, the personal choice at issue is not the choice of occupation. Neither is the dispute about an affirmative right to engage in commercial sexual transactions, as the Attorney General of Ontario asserts. At issue is the fundamental personal choice of who to have sex with and under what conditions.[^90]

[138] In passing PCEPA, Parliament took a starkly different view, as expressed in the preamble. Some intervenors agree with the assertions in the preamble. For example, the Women’s Equality Coalition puts it quite directly in its factum:

The prostitution industry, in Canada and around the world, is sexist, racist, classist and colonialist. It legitimizes male violence against women and other forms of inequality in the pursuit of economic profit.

The Charter does not compel the Government to accept the Applicants’ promotion of prostitution as a solution to the economic difficulties faced by poor women...

Section 7 of the Canadian Charter of Rights and Freedoms does not protect the right of men to buy sex or to have their sexual demands satisfied. It does not protect a right to pimp, procure or profit from the prostitution of another person. Yet the Applicants seek to create such rights through the smokescreen of the asserted liberty and security interests of women almost entirely immunized from prosecution by the impugned scheme. If the Applicants’ arguments are accepted, the Charter will prevent Parliament from ever criminalizing sex purchase. This amounts to a constitutional right to buy sex, however it is packaged...[^91]

[139] The factum of the intervenor Asian Women for Equality Coalition also states in its factum:

The Applicants’ assertion that prostitution should be considered an “occupation” has no merit and does not assist the Court in deciding this Application. First, the dangers of violence, sexual assault and even murder at the hands of men who pay for sexual access to women clearly distinguish prostitution from any other occupation. Second, there is no way to reconcile the Applicants’ position with laws against sexual harassment that protect women from enduring sexual propositions or being fired from their jobs for refusing sex.[^92]

[140] Whether sex work is simply a form of labour where workers exercise agency or is inherently exploitive and a source of social harm is not a legal question. Parliament, in enacting PCEPA, explicitly chose the latter interpretation. This court is bound to defer to the Charter-compliant decisions of Parliament.

[141] It is more productive to describe the sex industry in Canada. I will start with the problems associated with researching the sex industry.

ii. What are the problems research sex workers and sex work?

[142] Almost the only thing the Applicants and Respondents agree on is that sex workers are a very difficult group to study.[^93] Sex work is a large and diverse phenomenon, and individual research cannot present a complete picture.[^94] There are many methodological challenges. The two key problems are accessing the population of sex workers and drawing a representative sample of sex workers. These challenges were also identified by Justice Himel in Bedford (SCJ). As Professor Atchison, who provided an expert report for the Applicants, stated:

The principal methodological challenge that researchers studying the industry face is accessing the people, places and things that will provide the information necessary to find the best answers to our various research problems and questions. Because the sex industry is so multifaceted and complex, it is impossible to accurately determine its exact size or to derive a comprehensive list of all of the people and things involved in the various aspects of its operation. This inability to estimate the parameters of the population makes it impossible to draw a single sample that is statistically representative of the wider population of people or things that make up the industry. As a result, researchers must rely on various scientific techniques to select samples that 'best represent' the particular individuals, groups or are looking at.[^95]

[143] In her cross-examination on her affidavit, Professor Skilbrei had the following exchange:

Q. Right. So, you would agree that sex workers are generally a hard to reach research population, right?

A. Yes. That's why they are difficult to count.

Q. And we have already discussed that one variable that affects the ability to draw conclusions between a law and its effects, is the stigmatization of sex work, right? Because that can be independent of the law, right?

A. It can be independent of the law, and makes it difficult to contact the population.

Q. Right, so stigma makes it hard to access research participants is what you just said, right ?

A. And it also can affect what people say, of course.

Q. Because a sex worker might not be willing to speak to a researcher they don't know, right?

A. Yes.

Q. Or they might be willing to speak to you, but they might not be totally open, right?

A. Definitely.[^96]

[144] Professor Krusi stated that it is impossible to obtain a random sample of sex workers. As well, it can be difficult to gain access to and cooperation from sex workers. As a result, she agreed that researchers must be careful about drawing general conclusions applying beyond the specific participants of the study.[^97] Professor Benoit noted that it is difficult or impossible to obtain a representative sample due to several factors, including acknowledgment that being a sex worker could make one an object of hate or scorn; sex workers distrust non-members, may refuse to cooperate with outsiders, avoid revealing their identities, and may give unreliable answers to questions about themselves and their networks.[^98]

[145] Because of the difficulties studying the population of sex workers, most of the research is qualitative, rather than quantitative. While such research can be valuable, it must also be approached with some caution.[^99] The following comment made by Himel J. in Bedford (SCJ) equally applies here:

Due to the relatively hard-to-reach and fluid nature of prostitution, research on the subject has some limitations. This was acknowledged by both parties. Much of the research presented by the parties' experts has been designed as qualitative, as opposed to quantitative research. In Research Decisions: Quantitative and Qualitative Perspectives, 3 rd ed. (Scarborough: Thomson, 2003) at p. 313, Professor Ted Palys describes qualitative research as follows:

...typically inductive..., places a high value on preliminary exploration..., extols the virtues of target or purposive sampling..., and emphasizes that one should maintain flexibility and reap the advantages of more open-ended research instruments.

The method and degree to which qualitative researchers can make causal inferences was debated amongst the experts in this case. Random sampling methods, which minimize sampling error, are generally not possible in prostitution research because the overall population size (or "sampling frame") is typically not known. It is, therefore, important for researchers to limit their conclusions to the discrete sample studied and avoid making generalizations.[^100]

[146] In this application several experts agreed that qualitative research cannot be used to show causation or is not intended to show causation.[^101] In his expert report, Professor Atchison stated the following about quantitative and qualitative research:

Quantitative approaches are often associated with the view that there is a reality about any given phenomenon that exists – independent of the researcher – that can be understood and awaits our discovery. Accordingly, this approach rests on the belief that the world is made up of causes (or predictors) and effects (or outcomes) and the object or goal of science is to find causal explanations (theories) for the phenomenon or phenomena we study…

Qualitative approaches, on the other hand, follow a different set of logic. They often start from the belief that in order to study human behaviour we have to take into account that humans are thinking beings who actively perceive and make sense of the world around us, we have the capacity to abstract from our experience, ascribe meaning to our behavior and the world around us and are affected by those meanings. Consequently, qualitative approaches focus on employing methods that allow for the acquisition of deeper understandings of the human-centred processes underlying the phenomena we study…[^102]

[147] Most of the studies referenced by the Applicants’ experts used respondent-driven sampling. That is a method used by the AESHA project.[^103] The AESHA project is one that recurs often in the record. Professor Krusi stated that to her knowledge the study “is the largest, and longest standing, ongoing, longitudinal study focused on sex workers health safety and working conditions in North America.”[^104]

[148] In this context, respondent-driven sampling means that a sex worker responds to a contact. For example, the researcher sees a sex worker’s advertisement online, posts an invitation, and the sex worker responds by contacting the researcher. The sex worker then comes in for an interview.[^105] Random sampling would be preferable and would obtain a more representative group, but it is almost impossible to conduct random sampling, as noted by Dr. Benoit.[^106] Researchers who use respondent-driven sampling also conduct studies by partnering with community organizations that assist sex workers to obtain access to them. It is understandable that researchers would use this method, but it can obviously lead to skewed results. Very often those community organizations are in favour of the decriminalization and/or regulation of sex work. While there may be valuable information in these studies, a trier of fact must be aware that these studies have limits and may well reflect a bias.[^107] Indeed, there is almost certainly a problem with confirmation bias: virtually all the experts using the respondent-survey method had results that conformed to their view of sex work.

[149] After my review of the evidence, I agree with this statement by May-Len Skilbrei:

Which picture the research presents depends on the sample strategy applied when recruiting participants. If recruitment is solely among the most marginalized of sex workers, it should come as no surprise that their marginalization is linked to vulnerabilities already present before they took up sex work…

And, similarly, if one only recruits research participants among organized and privileged sex workers, one will often find that sex work for them does not stem from marginalization, trauma and poverty.[^108]

[150] Deborah Haak conducted a review of the literature for the Attorney General of Canada. She noted that that much research is conducted through the normative lens that sex work is a type of labour. Professor Haak further noted:

All or almost all of the scholars conducting empirical research about the exchange of sexual services for consideration in Canada since PCEPA came into force appear to conduct their research through a shared normative lens reflecting a value judgment that sex work is, and should be treated as, an occupation and that sex work is, and should be treated as, different and distinct from human trafficking.

… all or almost all of the authors approach their research through a normative lens that views the commercial exchange of sexual services for consideration as a job or occupation.[^109]

[151] Professor Haak noted that none of the researchers she examined had identified an important limitation: the research appeared to exclude the experiences of people trafficked or coerced. Some of the articles she examined made specific reference to only including sex workers who provide their services consensually. As well, there appears to be no scholarly empirical consideration of the experiences of people supporting those exiting sex work or surviving trafficking – and in some cases those people have been excluded from study.[^110]

[152] Professor Abel in New Zealand conducted a qualitative study very similar in method to those conducted by the Applicants’ Canadian experts. The study purported to show that sex workers were better off after decriminalization and regulation. The methodology of that study was criticized by Professor Pratt, a criminologist and expert in research methods, for reasons similar to those cited by Professor Haak.[^111]

[153] Professor Haak’s comments were the subject of criticism from the experts put forward the by the Applicants.[^112] Having reviewed her evidence, and reviewed those critical reports, I agree with two of Professor Haak’s findings:

• First, it is abundantly clear that virtually all the Applicants’ experts, including Professor Abel, view sex work through the normative lens that sex work is labour and not exploitation. As a result, they take the position that many sex workers have agency and choice. Many of the researchers are also strong advocates for decriminalization and/or regulation.

• Second, and more importantly, I find that Professor Haak’s observation that the research lacks participation by sex workers who have been trafficked or coerced is valid. Most of the Applicants’ experts acknowledged that exploitation, coercion and trafficking exist, but also downplayed it. There is little mention in the Applicants’ expert reports of sex workers who have been trafficked or coerced into sex work, or who have entered sex work voluntarily but become subject to coercion and trafficking later. There was an effort by the Applicants and their witnesses to separate sex work from coercion and human trafficking. Many of the Applicant’s experts criticized the Respondents for conflating sex work and human trafficking. I find that the attempt by the Applicants to separate sex work and human trafficking is artificial and unrealistic considering the strong evidence to support Parliament’s view that they often go together, as I will explain.

[154] The Applicants’ experts have applied research methods that are standard and approved in their field. At the end of the day, however, qualitative studies are essentially structured interviews of sex workers who are identified through partner agencies and willing to be interviewed. I am not criticizing that methodology or denigrating that work, but it has two obvious limitations. The chief limitation is that it cannot be used to extrapolate to the entire population of sex workers; another limitation is the opportunity for confirmation bias.

[155] Much of the evidence filed by the Respondents also has limitations. Many of the affidavits relied on are from social services agency workers and police officers. These witnesses report based on their experiences and their interactions with sex workers. The social services agencies deal with sex workers who are suffering abuse or exploitation or looking for a way to exit the sex industry. That may skew the experiences of social services workers and police officers in a way that is opposite to the Applicants’ experts: they may have little or no contact with sex workers who enter the sex trade willingly, do not encounter exploitation, and exit when they choose. Those sex workers are less likely to require such services.

[156] For example, Andrea Rittenhouse, an intervention support worker at the Crime Victims Assistance Centre in Montreal (“CAVAC”), indicated that CAVAC only works with victims of crime. The clients have all been victimized by a procurer, a customer, or an employer. She stated in her affidavit that there were individuals who chose to work in the sex industry and worked independently, but she had no experience working with them.[^113]

[157] Police officers use various methods to investigate the sex industry. Some of these methods may include undercover work – pretending to be a customer in order to access a sex worker and investigate if she is being exploited. While no doubt for some sex workers such contact comes as a relief, for others it can be frightening – and this may also skew the perspectives of police officers. Police officers may also have an incomplete view of the sex industry because it is their job to find and investigate exploiters and traffickers. Because exploiters and traffickers exist, the police will always be able to find some.

[158] While I do not doubt that the experiences relayed to social services agency workers and police officers by sex workers are accurate, and that they are faithfully reported, as with the Applicants it is impossible to gauge numbers.

[159] To conclude, I find that much sex work is conducted by populations that are transient or marginalized (or both). This hard-to-reach population cannot or chooses not to engage with researchers. That makes it difficult for researchers to find and engage with sex workers. Thus, key parts of the population, such as those who are the subject of trafficking or coercion, are often left out of qualitative studies of the sex trade.

[160] I also find that the evidence from social services agency workers and police officers who regularly interact with sex workers is important and valuable. I recognize that the affidavits from these groups have been criticized by the Applicants’ experts. I find, however, that these are generally reliable and useful. They are based on sex wokers’ personal experiences as conveyed to these service providers and police officers. These are social services workers and police officers who have vast experience of dealing with sex workers over many years. They reflect the experiences of marginalized or hard-to-reach groups that qualitative researchers may miss. I find that their evidence is no less valid or valuable than the results from respondent-driven surveys and qualitative studies generally.

iii. Is there agreement about the nature of the sex industry in Canada?

[161] The Applicants and Attorneys General agree on some basic points:

• Sex workers are diverse population in terms of racial, gender, and cultural identity,

• Sex workers are also diverse in terms of socio-economic background, education, and employment background;

• Sex workers provide services in a variety of venues and ways of working;

• Women are the majority of sex workers;

• Women from marginalized populations, and especially Indigenous women, are over-represented in the sex industry.

• Indigenous women are especially over-represented in the street-based commercial sex industry.

• Trans and non-Indigenous racialized populations are also over-represented in the sex industry.

• Sex workers provide sexual services for multiple reasons, including the opportunity to generate income.

[162] There is also agreement that sex workers work in a large variety of locations and circumstances – both indoor and outdoor, and through different means of contact. These include street-based sex workers who may provide services in vehicles or other outdoor locations. These also include sex workers who work out of in-call locations such as hotels, homes, or Airbnbs. There is often overlap between and among these groups. Sex workers may work through escort agencies, strip clubs, or massage parlours.

[163] There is evidence that sex work is highly gendered – the overwhelming majority of sex workers are female, and the overwhelming majority of customers are male.[^114] There is also evidence that racialized groups – particularly Indigenous girls and women – are over-represented in the sex industry.[^115] There is disagreement about the average age of sex workers, and the average age at which women and girls enter the sex industry. I turn to some specific topics.

iv. Do sex workers enter the industry by choice?

[164] The Applicants argue that sex work is a choice (even if, in some cases, a constrained choice), that sex workers have agency, and that sex work is simply a form of labour.[^116] Professor Benoit notes that people engage in sex work for the same reasons that other people engage in other kinds of work: financial need combined with less favourable employment options. Sex work is a livelihood strategy, and sex workers exercise agency, even if that agency is constrained by economic factors. Professor Benoit states that sex workers mention four favourable themes when discussing sex work – job satisfaction, money, and control/independence; sex workers only mention one unfavourable theme: stigma, reproduced by criminalization.[^117]

[165] Professor Krusi in her report states that most of the empirical research suggests that most sex workers engage in sex work as a form of employment, rather than due to coercion and exploitation.[^118] The Applicants who have engaged in sex work, such as Llana Moon Perrin, state that they did so to earn money. They engaged in sex work so that they could have food to eat and money to pay the rent. They say that they made a choice to engage in sex work.[^119] Some of the intervenors support this position.[^120]

[166] The question of exploitation, coercion, manipulation, and human trafficking versus choice and agency is potentially important on a s. 7 and s. 1 Charter analysis. Unlike the question of the inherent nature of sex work, empirical evidence may shed light on this issue. Recall that in N.S. Hoy J.A. stated that PCEPA has three purposes:

first, 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; second, 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 third, to mitigate some of the dangers associated with the continued, unlawful provision of sexual services for consideration.[^121]

[167] The question of exploitation, coercion, manipulation, and human trafficking versus choice and agency is relevant to all three purposes.

[168] Respectfully, I do not accept the factual claim that the majority of sex workers do not engage in sex work through coercion or trafficking. What I do accept is that the majority of respondents to surveys conducted by the Applicants’ experts state that they do not engage in sex work through coercion and trafficking. That is not the same thing as a majority of sex workers. There is evidence, which I accept, that sex workers are frequently counselled by their exploiter or trafficker to claim to the police to be independent when they are not.[^122] It is obviously impossible to say how many sex workers counselled by an exploiter or trafficker – if any – are also respondents to surveys.

[169] Several social services agency workers and police officers submitted affidavits on behalf of the Attorney General of Canada. They found, based on their experiences, and based on the reporting of sex workers that they have contact with, that many have been coerced, trafficked, or manipulated into sex work. Inspector Ramkissoon of the Winnipeg Police, for example, estimates that of the women he has personally encountered, 20% worked in the sex trade willingly, 40% were involved in survival sex, and 40% had been coerced into entering and remaining in the sex trade.[^123] Paul Rubner, formerly of the Calgary Police and now a social services agency coordinator, noted that “the demographic of women at RESET does not include any sex trade workers who were engaged in the sex trade independently.”[^124] Some social services workers have affirmed that they have never met a sex worker who entered the commercial sex industry willingly or have met very few.[^125] Obviously Mr. Rubner, Inspector Ramkisson, and some of the social services agency workers were relying on personal experience rather than a scientific sampling. That does not, however, mean that their experience is invalid. I find that the evidence of police officers and social services agency workers on this point is useful, and I accept their evidence. I also find that, like the evidence in the Applicants’ expert reports, their observations must be confined to the population that they are personally acquainted with. Their numbers cannot be extrapolated any more than the Applicants’ numbers, although, after reviewing all the evidence. That said, I think that it is likely that police officers and especially social services workers are probably familiar with larger numbers than the Applicants’ experts (although likely not larger than the numbers dealt with by the Applicants’ social services workers).

[170] I think it is important to point out that the Applicants also provided affidavits from social services workers. Most of these affidavits are largely silent on the question of choice versus coercion. For example, according to Sandra Wesley, the executive director of Stella in Montreal, Stella has a representative view of sex worker demographics in Montreal. Stella has contacts of between 5000 and 8000 sex workers every year. Her affidavit does not mention this issue.[^126] Neither does Nora Butler-Burke, the director of ASTT(e)Q.[^127] Ellie Ade-Kur, the vice-chair of Maggie’s, indicated that outreach workers logged contacts with sex workers of between 25 and 60 sex workers per week. That number has been increasing, and by 2021, Maggie’s outreach workers logged contacts of about 50-100 sex workers per week. She is particularly engaged with Black sex workers in her role at Maggie’s. Ms. Ade-Kur stated that sex workers reported reasons for engaging in sex work ranging from financial to job satisfaction. Her affidavit is silent on the question of how many sex workers are coerced or manipulated into sex work versus the number who enter as a matter of choice.[^128]

[171] Two affidavits submitted by social services agency workers on behalf of the Applicants did deal with the issue. Elaine Lam of Butterfly (an organization representing Asian migrant sex workers) and Diane Cooley of SACRED (a program supporting indigenous Sex workers in Victoria) filed affidavits and were cross-examined. In her affidavit Ms. Lam asserted that none of the sex workers who were members of her organization were trafficked or exploited.[^129] I carefully reviewed the transcript of Ms. Lam’s cross-examination. It was impossible to understand her shifting explanations for the many contradictions in her testimony.[^130] Ms. Lam also indicated that, in essence, she discourages Butterfly participants from reporting crimes to the police as the police may report them to the immigration authorities. It was clear from her cross-examination that she gives that advice because of something she was told by a single police officer in a single situation.[^131] I find that this was improper. It was also contrary to the evidence before this court. Staff Sgt Correa of the Toronto Police Human Trafficking Enforcement Team was the only police officer to address this issue in his affidavit. His team does not notify immigration authorities when they come across those without status.[^132] Staff Sgt Organ of the York Regional Police indicated during his cross-examination that immigration status is not a factor in his human trafficking investigations.[^133] Ms. Lam’s statements undermine her credibility. I give her evidence no weight.

[172] In contrast, I give weight to Ms. Cooley’s evidence. Ms. Cooley indicated that many Indigenous sex workers have told her that it is a job that they decided to do. Many of them indicated that they have good and bad days at their work. She further stated that categorizing Indigenous sex workers as victims “is not reflective of the experiences that Indigenous sex workers share with us.”[^134] In contrast to Ms. Lam, Ms. Cooley did not overstate her case and was careful to limit her observations to what she was told.

[173] Professor Krusi, drawing on the AESHA study, found that of the migrants among the participants in the study (primarily Asian migrants) none had entered sex work due to trafficking or other forms of coercion. All said that they had entered for financial reasons. Again, I accept that the study participants told the interviewers that. The study, however, was structured in such a way as to limit the participants to certain types of sex workers – primarily those working in massage parlours or micro-brothels. The participants were visited at their work sites by outreach workers. Some participants identified as sex workers, over half as owner/managers, and several worked in both roles. In her cross-examination on her affidavit, however, Professor Krusi was careful to point out the limitations to her research in this area. She agreed that there are challenges involved in reaching hidden populations, such as populations of migrants:

Q. And they also state that:

“Despite our best efforts, our study does not reflect the full diversity of more marginalized im/migrants who do sex work, such as undocumented individuals.” Correct? Would you agree with that statement?...

A. Yes. So this study as you say for the qualitative component no one reported to be trafficked and therefore speaks to people who have not experienced trafficking.

Q. Understood. But would it be accurate to say that the study cannot be taken as an accurate representative sample of all marginalized immigrants who do sex work such as undocumented individuals in Vancouver, can it?

A. I think the qualitative component can’t. For the quantitative component I would like to add that within the AESHA cohort, yes, we do focus on sex work. There is a very small percentage of people who say that they have experienced trafficking. But again, I would say the fact that we have 900 sex workers who work in Meto Vancouver and very few report that they have experienced trafficking, that does tell us something about the phenomenon of trafficking and how frequent it is, but it also does say something about who we’re able to reach.[^135]

[174] The outreach workers visited sex workers in their places of work. There may have been managers or other supervisors present (or, perhaps, more exploitive third parties). These studies do not seem to consider whether some sex workers may well feel constrained about what they can and cannot say under those circumstances.

[175] There is also evidence that some sex workers are pressured or counselled not to cooperate with the police or identify as victims. Staff Sgt Organ stated in his affidavit that in human trafficking investigations many sex workers do not wish to cooperate or identify as victims, although several do. Many sex workers later come forward and indicate that they are or were under the control of an exploiter. According to Staff Sgt Organ these sex workers state that:

… it is a common pimp tactic to prepare a sex trade worker for what to say during a police interaction. This includes reinforcing the mistrust of police by stating "they cannot be trusted", "they will arrest you", or "they will not take you seriously, as you are involved in the sex trade". The sex trade workers are also told to claim they are independent and that they work alone and are not associated with anyone.[^136]

[176] It is very difficult to give a reasonable estimate of the number of sex workers entering the industry through choice. I find, however, that it is likely exaggerated in the Applicants’ expert reports. I make that finding for four reasons:

• The qualitative studies are largely based on responses from respondents who are identified by organizations committed to the decriminalization and regulation of the sex trade. I do not question the good faith of these organizations, but that cannot help but limit the sample group;

• As mentioned, the qualitative studies appear to exclude those who have experienced trafficking or coercion;

• It is likely that the sex workers reached by the qualitative studies are less likely to be highly marginalized and vulnerable;

• The Applicants’ experts largely favour the decriminalization and regulation of prostitution – which may be a valid goal from a policy perspective – and take the normative view that sex work is work, just like any other occupation. Again, I do not question the good faith of the experts, but there is obviously a significant potential for confirmation bias.

[177] There is evidence that some sex workers enter the sex trade by choice – sometimes constrained choice – but later become subject to the control or exploitation of exploiters or traffickers.[^137] It appears that many of the sex workers who enter by choice and are later exploited are also left out of the qualitative studies. I turn next to the question of human trafficking.

v. Is there a link between sex work, exploitation, and human trafficking?

[178] In contrast, are there sex workers who enter the sex industry through trafficking, manipulation, or exploitation? The Applicants argue that the Attorneys General have wrongly conflated sex work with human trafficking or exploitation. Sex work and human trafficking are two different phenomena. There are other sections of the Criminal Code that prohibit human trafficking. The Applicants do not challenge those sections. The Applicants argue that there is no evidence that sex work transitions to human trafficking, or that sex workers are subject to an inherent risk of human trafficking.

[179] With respect, I cannot agree. I find that there is a clear link between sex work and human trafficking. In fact, there is a considerable body of evidence that many sex workers are manipulated or coerced into sex work or trafficked while in it.[^138]

[180] Individuals working in social services agencies provided evidence in that regard. Andrea Rittenhouse of the Montreal Crime Victims Assistance Centre has experience working with young women and girls in the sex industry. She stated in her affidavit that there is a high level of manipulation, coercion and control exercised over young women and girls in the sex industry - psychologically, physically, financially, and sexually.[^139] Ms. Rittenhouse described the recruitment process:

While individual circumstances vary, the young women and girls who I have worked with report several common experiences in the recruitment process. In general, the methods they have described fall into the following categories: Young women and girls have been seduced into the sex industry by their partner ("boyfriending in"); Young women and girls have been lured into the sex industry under the pretext that they will be able to make a lot of money, with promises from a procurer of fast, easy cash; Young women and girls working in the sex industry have been forced to work for a procurer under threats of violence; Young women and girls seeking adventure and autonomy have fallen victim to procurers.

[181] Several of the police officers and social services workers also described how recruitment and coercion often takes place. As well as Andrea Rittenhouse, Diane Redsky, Megan Walker, Cora-Lee McGuire, Inspector Ramkissoon, Detective McGuigan, and Inspector Dominic Monchamp of the Montreal Police also described “the boyfriend method” or manipulation by a “Romeo pimp” - a person that the woman or girl thought cared about them but was in fact only interested in exploitation – or procurement by organized crime or gangs.[^140] That is a method commonly used to recruit young and vulnerable women and girls into the sex industry through romance and intimacy, eventually leading to control, isolation, and violence. It is also sometimes used to lure women and girls who are already working in strip clubs or massage parlours. Police officers and social services workers described other methods as well, usually involving violence by unscrupulous exploiters and other third parties. Exploiters may manipulate a young and vulnerable person into believing that she is entering the sex trade by choice.[^141]

[182] There is also evidence that exploiters and traffickers target young people. Staff Sgt Organ has investigated offences related to the sex trade, including human trafficking. In his experience (and the experience of other police officers and social services workers) there is a high prevalence of sex trade workers who have been involved with the Children’s Aid Society. Many sex workers entered the sex trade when they were younger than age 18. In one project he was involved with, 31 female sex workers were interviewed. Their average age of entry into the sex industry was 14.8 years old.[^142] According to the observations of Sergeant Maria Koniuk of the Winnipeg Police, 80% of sex workers on the street in Winnipeg are Indigenous and range in age from 14-65.[^143] Inspector Monchamp filed evidence from a Quebec provincial survey of victims of procuring in Quebec. The survey found that of 292 cases analyzed in 2018 and 2019 43.5% of victims were minors.[^144]

[183] There is also evidence that exploiters and traffickers target those with pre-existing vulnerabilities. These vulnerabilities include addiction issues; poverty; cognitive ability; mental health issues; immigration issues; and medical conditions. There is also evidence that exploiters and traffickers specifically target youth in foster care, group homes, and youth correctional facilities. Often these are young women and girls who have been in the child protection system or run away from home. Indigenous girls and women are especially vulnerable.[^145] According to Diane Redsky of Ma Mawi We Chi Itata Centre Inc., an Indigenous-led social services agency in Winnipeg, the average age of recruitment has become younger and younger.[^146]

[184] The Applicants have filed evidence from three studies stating that the average age of entry into the sex trade in Canada is between 18 and 24.[^147] Even if that number is correct it obviously still means that many girls under 18 enter the sex trade.

[185] Cora-Lee McGuire of the Ontario Native Women’s Association acknowledged in her affidavit that there are women who enter the sex trade voluntarily, but noted that none of the women involved with the ONWA program self-identified as participating in sex work by choice. She noted that the vulnerability of Indigenous women may lead to them being targeted for exploitation and human trafficking.[^148]

[186] Staff Sgt Organ indicated that there are signs a sex worker is in an exploitive relationship such as bruising, burns, or other injuries; lack of awareness of advertisements; lack of awareness of her location; lack of communications with the customers; frequent moving of location; and lack of access to money. Staff Sgt Organ also noted that violence from an exploiter can make a sex worker more fearful of going to the police. In contrast, an independent sex worker usually has control over her advertisements, communications, and earnings.[^149] Other police officers have made similar observations.

[187] Mr. Rubner of RESET, the Calgary social services agency, was heavily involved in the investigation of offences relating to the sex trade as a police officer, including human trafficking. He observed that most of the sex workers he dealt with would not at first acknowledge that coercion or pressure led them into or kept them in the sex industry.

[188] He observed that even where there were obvious indications to the contrary – bruising, lack of access to bank accounts, no control over advertisements – no current sex workers admitted to coercion. Sex workers usually acknowledged coercion or pressure later, or after they have left the sex industry. He also stated:

Conversely, in speaking with the hundreds of women who have exited the sex trade, not a single one has stated that they enjoyed that lifestyle, stayed in it voluntarily, or would want a friend or loved one to experience it.[^150]

[189] Megan Walker of the London Abused Women’s Centre indicated that the Centre has kept a database of women and girls it supports. Between December 6, 2014 (one month after PCEPA received Royal Assent) and the swearing of her affidavit, her agency recorded provided services to 2,888 women and girls involved in the sex industry. Of these 68 girls reported being underage, with 15 under the age of 15. Only six women and girls reported entering the sex industry by choice. Some reported being lured from streets or youth centres; lured online; lured from schools, universities, and workplaces; or lured from strip clubs or body rub parlours. Many entered through a constrained financial choice; others were coerced by organized crime or gangs. Several reported being lured into the sex trade by a “Romeo” pimp.[^151] She also observed that in her experience sex work and trafficking are difficult to separate. She agreed that women and girls enter the sex trade for a variety of reasons, but noted:

Even if a woman or girl starts out independently, she can quickly be picked up by a trafficker or procurer. During my years working at LAWC, women and girls consistently reported that they experienced a lack of choice when they entered the sex industry and when they were under the control of a trafficker or procurer.[^152]

[190] Even one of the Applicants described being trafficked herself. The Applicant Lana Moon Perrin described the experience:

I have felt some elements of control while working in the sex industry. When I was sixteen and working in Sudbury, a man had promised me a better life working in Toronto. I thought he had my best interests in mind. I had never been to Toronto before. So I willingly took this opportunity. But when I got there, I was being controlled by others. I was locked into a rundown room, where men were brought to me and I was told what to do with them. I was told when to work. And my movement was restricted. I received no money in return. I was being controlled and made to fear touching the doorknob. I remember being so scared. After a few days, I was able to escape. This experience was exploitation. I believe that I was being trafficked.[^153]

[191] I make the following findings of fact in relation to the issues of choice, coercion, and human trafficking:

• To put it at its most basic, 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.

• Where a customer purchases sex, 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.

• Even where a sex worker has entered the sex trade by choice, there is a significant possibility that she has become subject to the control of an exploiter or a trafficker.[^154]

• There are some sex workers who freely choose to become involved in the sex industry, even where that choice is constrained as a result of economic factors or barriers to other occupations. Some of those sex workers remain independent. Some of those sex workers fall prey to traffickers and/or exploiters and become exploited.

• There are likely some sex workers who fall somewhere on the spectrum between coercion and free choice.

• A significant number of women and girls lured or coerced into sex work are Indigenous or from other vulnerable racialized or sexual minorities.

• 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.

• It is not possible to quantify the numbers or percentages of those who engage in sex work voluntarily, involuntarily, or somewhere in between.

• Studies by the Applicants’ experts showing a majority of sex workers enter the sex trade by choice have significant limitations. The evidence fails to establish that the majority of sex workers enter the trade by choice, even constrained choice. I reject that contention.

vi. What is the role of third parties in the sex industry?

[192] Given that the Court of Appeal found the material benefit and procuring offences to be constitutional in N.S., this question is arguably moot. The parties, however, devoted much evidence this issue – evidence that was generated prior to N.S. The Applicants have argued that I can come to a different conclusion based on the fuller record filed in this matter. As noted, I disagree. Even if I were able to come to a different conclusion than the Court of Appeal I would not. I do not agree that the evidence supports the position of the Applicants.

[193] Both the Applicants and the Respondents agree that third parties play an important role in the sex industry. They take very different views of that role. Since a third party can be a trafficker or exploiter, there is overlap between this question and the previous questions.

[194] The Applicants have filed evidence outlining the range of services that third parties provide to sex workers. The key expert evidence comes from Professor Bruckert. Professor Bruckert drew on the Management Project, “an academic-driven project that endeavored to fill a knowledge gap – the lack of rigorous empirical research about individuals who are involved in the sex work exchange who are neither clients nor sex workers (e.g., individuals who perform tasks and labour in the sex industry).” The Management Project drew on surveys of 75 people in Quebec in the sex industry who perform third party tasks and focus groups with 47 sex workers who had worked for or with third parties. Thirty-two third parties had also been sex workers at the same time as they performed third-party tasks. Over 60% of the third parties were women, including two who identified as trans women. The Management Project found that the boundaries between being a sex worker and a third party were porous – people moved back and forth in the roles. The Management Project identified three different roles for third parties: manager, where a sex worker works for an individual or agency; associate, where a sex worker or sex workers collaborate with a third party; contractor, where a sex worker or sex workers contract with a third party to provide services. Professor Bruckert described these different roles in some detail in her report. A key finding is that these relationships are diverse and complex, but do not involve the kind of abuse that is stereotypically associated with exploiters.[^155]

[195] According to Professor Bruckert, agencies typically impose restrictions on their employees, like any employer. She stated, however:

In sharp contrast to the stereotypes, sex workers and third parties told us there is one very significant area that agencies do not impose expectations – the type of sexual services that are provided. Although agencies are, generally, respectful of sex worker’s boundaries regarding the specific sexual services they will (and will not) provide sex workers who will not provide the services offered by the agency will not be able to work for that agency. Agencies also typically insist on safety protocols and mandatory condom use for certain activities.[^156]

[196] Professor Bruckert did note that many managers are interested in their “bottom line” and motivated to generate a profit. Professor Bruckert rejected the stereotype of the archetypical “pimp”. She went on:

Third parties (like any businessperson) have a vested interest in their business. The demonization of that vested interest hinges on the belief that sex work is inherently bad and therefore anyone who profits from it must be immoral (see Question #4 below). The truth is more complex. Third parties are individuals – some considerate, some apathetic, others unpleasant - some third parties are very good at what they do, some do an acceptable job, and some are incompetent.[^157]

[197] There are four obvious problems with the Management Project. The first is that it involved 75 people who agreed to be interviewed in an underground industry involving thousands. As a qualitative survey rather than a quantitative survey, the results simply cannot be extrapolated. The second obvious problem is that it does not include exploiters and traffickers who are also third parties in the sex industry. It is difficult to imagine many exploiters or traffickers sitting down with an academic or outreach worker to answer questions. It is even more difficult to imagine exploiters and traffickers answering the questions honestly. Professor Bruckert did acknowledge that Management Project workers spoke with some street-based sex workers and third parties who described managers who used violence and threats. She stated that this is less common than generally assumed. The basis upon which Professor Bruckert makes this claim is unclear, as it is unfootnoted and unanalyzed.[^158] The bottom line is that there is a large and significant group of third parties – exploiters and traffickers – who are simply left out of these academic surveys. The third problem is related to the second: the Management Project appears to have simply assumed away or denied the presence of exploiters and traffickers, as their existence is simply not acknowledged. The fourth problem, as I have already pointed out, is the normative lens through which sex work is seen. Again, that normative lens appears to have influenced the conclusions of the study. It is not clear to me what steps the researchers took to deal with the normative problem or the problem of confirmation bias.

[198] That said, I accept from the evidence of Professor Bruckert – as well as the evidence of some of the Applicants themselves – that there are sex workers who hire third parties or work for third parties and that those relationships are akin to professional business relationships. I also accept that there are third-party relationships do not have the hallmarks associated with exploitation. I accept the individual statements set out in the expert report of Professor Krusi on that point.[^159]

[199] I do not, however, accept that these relationships are a majority of sex worker/third party relationships. As with the AESHA project, it is not a majority of sex workers and third parties who have non-exploitive relationships with each other. It is a majority of sex workers and third parties responding to the survey. The numbers cannot be extrapolated to a general proposition about all sex workers and third parties. All that can be said is that these non-exploitive relationships exist, that there are a variety of these relationships, and that the relationships can be complex.

[200] There is also compelling evidence that many sex workers experience exploitation, manipulation, control, and/or trafficking at the hands of third parties. These third parties are classic exploiters and/or traffickers. The experiences of sex workers at the hands of exploiters are set out in the affidavits of police officers and social services workers.

[201] For example, there is evidence that some exploiters employ extreme levels of control. Some even brand or tattoo sex workers.[^160] Exploiters have kept sex workers isolated and dependent, moved them regularly, threatened them with blackmail by using photographs, threatened to use violence on family members, controlled them through drug use, or have forced them to become involved in illegal activity. Some have used extreme violence. Sex workers also report that exploiters have forced them to take out loans and credit cards and their own names and then kept the money.[^161]

[202] Exploiters have also controlled sex workers by forcing them to ask permission to eat or use the bathroom, or dictate what to say and wear. Many sex workers reported that they had no control over the content of their advertisements. Many exploiters require sex workers to meet a daily quota. Many report that they have no control over what sexual services to provide.[^162] These can include include unprotected vaginal or anal sex, violence, choking, and fetishes such as “golden showers”. Many sex workers reported contracting sexually transmitted infections as a result.[^163]

[203] Exploiters have also controlled sex workers by isolating and displacing them, using substance dependency, threats of violence against the sex worker or their families, and actual violence. Some third parties have threatened to pull a younger sister or child into the sex trade. Sex workers reported that fear of third parties made them compliant. They would not tell the police, their families, or others the truth about their situation, often claiming to be in the sex trade by choice. Some third parties are “debt-bonded” to exploiters. A debt-bond means that sex workers must meet a daily quota of money to hand over.[^164] It may also mean that they cannot leave the sex trade without paying a fee to their exploiter. There is evidence that in Manitoba sex workers under age 25 cannot operate independently (customers will pay more for an underage girl) because third parties target them, demanding payment or benefit. The targeting can include threats, violence, and manipulation.[^165] Staff Sgt Correa stated that he has encountered situations where third parties have threatened to kill the family members of sex workers.[^166] Indigenous women and girls are particularly vulnerable to exploiters.[^167]

[204] Overall, I find as follows regarding the role of third parties:

• Third parties are a diverse group and can include sex workers who move back and forth between roles;

• Some third parties can provide a legitimate range of services, including security, reception and booking, advertisements, and transportation;

• There is a spectrum: some third parties can work at arms-length in a non-exploitive fashion, or in a non-arms-length, non-exploitive fashion, or somewhere in between;

• Some third parties, are exploiters and/or traffickers;

• Some third parties who are exploiters and/or traffickers use violence, manipulation, drugs, or intimidation (or a combination), to control sex workers;

• Some third parties who are exploiters force sex workers to engage in sexual activities against their will;

• Some third parties who are exploiters take control of the advertising, finances, housing, clothing, and other aspects of sex work;

• Some third parties “debt bond” sex workers; and,

• Some third parties who are exploiters deprive sex workers of their earnings.

vii. What is the role of violence in the sex industry?

[205] The Applicants argued that prostitution itself is not inherently violent or dangerous. As the Applicants put it in their factum:

Clients of the sex industry are typically “average” people who are not predatory nor violent. Expert witnesses confirmed that the “majority of sex workers’ client interactions [are] positive” and “peaceful.” As with any other service industry, sex workers do encounter bad clients, though such encounters are the exception.[^168]

[206] Sandra Wesley stated in her affidavit that sex workers are sometimes subject to violence from neighbours in public spaces. Ms. Wesley reported that neighbourhood residents are sometimes very aggressive and assert the right to have their neighbourhoods free from sex work.[^169] Ms. Forrester, Ms. Mason, and Ms. Scott all described violence at the hands of customers or other sex workers in their affidavits. Ms. Clamen reported that the sex workers with whom she works are also subject to violence. All said that it is rare, but that it happens.

[207] Ms. Clamen, like many of the Applicants, asserted that PCEPA was the cause of unsafe working conditions.[^170] Diane Cooley, for example, stated that:

Members of Peers and SACRED tell me that the criminalization of sex work is the main reason Indigenous and other sex workers experience violence, as it drives sex work into isolated and hidden locations, and forces sex workers to work in ways that compromise their safety. The criminalization of sex work makes sex workers ashamed of what they are doing. Sex workers are scared to tell their loved ones that they are doing sex work, and potentially violent people know this and target sex workers because they are aware that sex workers are much less likely to report violence against them in sex work. Predators target sex workers for physical or sexualized violence. Violent people know that Indigenous sex workers are even less likely to interact with police, so they are more likely to get away with violent behaviour and assaults. The criminalization of sex work contributes to this violence against Indigenous sex workers.[^171]

[208] That assertion is common throughout the Applicant’s materials. Although I accept that many truly believe it, I find, with respect, that it is at best an exaggeration and at worse unture. Violence in the sex trade is obviously not monocausal. Indeed, the causes of violence in the sex trade are multiple and complex. Justice Himel’s summary of the expert evidence in Bedford (SCJ) is apt:

The experts generally agree on the following statements:

a) Street prostitution is a dangerous activity;

b) All prostitution, regardless of venue, carries a risk of violence;

c) Prostitution conducted in indoor venues can be dangerous;

d) There is significant social stigma attached to prostitution; and

e) There are multiple factors responsible for the violence faced by prostitutes.[^172]

[209] There is a significant amount of evidence that sex workers are subject to violence at the hands of third parties, especially exploiters and traffickers. Sex workers are also sometimes subject to violence from customers, although there is evidence that much goes unreported.[^173] Some of the social services workers described horrific acts of violence against sex workers.[^174] So did police officers. The violence employed by exploiters can include aggressive grabbing, open or closed hand strikes, kicks, choking, or burning victims using cigarettes or curling irons. Violence can lead to significant visible injuries. It can also lead to death. Staff Sgt Organ also noted that “violence from a pimp towards a sex trade worker can make them fearful of coming forward to police with a complaint, and it can also serve as a barrier to them trying to exit the sex trade.” In addition to exploiters, violence can come from the owners of escort agencies or body rub parlours. Customers sometimes refuse to respect the decision of sex workers to withdraw consent to sexual activity.[^175] Some women and girls report being victims of torture, gang rape, mutilation, whipping, and waterboarding at the hands of both purchasers and exploiters. One sex worker shared a video with Meghan Walker.[^176]

[210] Professor Roots stated that “research shows that sex workers' biggest safety concern is the police, not their clients or third-party managers.”[^177] One of her sources for this assertion is Ms. Lam of Butterfly. For reasons I have already mentioned, Ms. Lam is not credible. The other source cited is a study by Professor Bruckert and Frederick Chabot from 2018 entitled “To Serve And Protect?”. While the study does not appear to be in the Joint Application Record, another publication with much the same conclusions that is appended to the cross-examination of Professor Bruckert is called “Challenges: Ottawa Area Sex Workers Speak Out”. This publication appears to come to much the same conclusion as “To Serve And Protect?” The publication was written in collaboration with POWER (Prostitutes of Ottawa/Gatineau Work, Educate, and Resist). Power is an organization that advocates for the decriminalization and regulation of sex work. The publication includes sex worker stories of negative interactions with the police in Ottawa. The methodology was to use the type of qualitative research that I have already discussed. As such (and as acknowledged in the publication itself) it is subject to the same limitations as other qualitative research.[^178] When I review Challenges I accept that there are sex workers who have had negative reactions with the police and are genuinely concerned about encounters with the police, but, with respect, I think Professor Roots overstates the conclusions reached in that study. Moreover, the study generally dealt with outdoor sex workers, who were more likely to encounter police. I also note that Challenges was published in 2014, and the research was conducted prior to the enactment of PCEPA, although “To Serve And Protect?” was published in 2018.

[211] I accept that some sex workers are more concerned about police than clients or third-party managers, but it is unclear from the material that I have reviewed whether there was a distinction made between exploitive and non-exploitive third-parties; or whether the fear of police arose because of other criminal activity or outstanding charges; or because exploiters and traffickers encourage this belief – for which there is evidence; or because of the significant number of sex workers who have drug addictions or mental health problems and have encountered police through that avenue; or because they come from a community with a long-standing distrust of police, such as Indigenous or Black Canadians; or because of immigration concerns. As Professor Bruckert points out, there is a long history of perceived police neglect and harassment by some groups.[^179] It may also be that some sex workers are concerned about the police because exploiters and traffickers have involved them in other criminal activity – a phenomenon commented upon by most of the police officers in their affidavits.

[212] After reviewing the evidence in detail, I am very skeptical that the majority of sex workers are more concerned about the police than they are about human traffickers or exploiters or customers. Some sex workers may be more concerned about the police, of course. There can be no doubt that many sex workers are concerned because they fear that any contact with police will bring violent consequences from exploiters – a very realistic fear. There is also evidence that many sex workers do not understand that they are immune from prosecution for selling their own sexual services and fear arrest for something that they cannot be arrested for – as I have already noted, there is a evidence that this belief is encouraged by exploiters and traffickers. Exploiters and traffickers themselves may be ignorant of the immunity provisions, or they may simply be cynical. There is a great deal of evidence filed by all parties that sex workers are often not aware of the laws around sex work and often unaware that they are immune from prosecution for their own sexual services.

[213] Thus, I reject the assertion that a majority of sex workers are more concerned about the police than about human traffickers or exploiters. After reviewing all of the evidence, I find that some sex workers are more afraid of the police than they are of exploiters, traffickers, and/or customers; but I also find that many sex workers are more likely to be afraid of exploiters, traffickers, and/or customers than they are of the police. I also find that many sex workers are likely to be more afraid of the consequences from exploiters and traffickers if they do go to the police than of the police themselves. Based on my review of the evidence, I also find that there is variation in the relationships between sex workers and police services. Some police services have simply done a better job of dealing with sex workers (and with the marginalized communities from which they often come) than other police services.

[214] As noted, many of the Applicants and their experts asserted that there is a causal relationship between the enactment of PCEPA and violence against sex workers. I find that that the evidence simply does not support this blanket assertion, as I will examine in more detail later in these reasons.

[215] Many of the affiants described violent encounters with customers under the pre-Bedford regime and prior to the enactment of PCEPA. Moreover, statements suggesting that PCEPA is responsible for violence are contradicted by some of the Applicants’ own expert evidence. For example, Professor Krusi, one of the Applicants’ experts, provided statistics from the AESHA longitudinal study. The study was designed to look at reported rates of violence before and after the implementation of PCEPA. The study found almost no difference in the rates. I set out excerpts:

… in the 8-month period post-policy implementation, 24.6% (58/236) of sex workers experienced work-related physical and sexual violence (as compared to 23.7% (65/275) interviewed in the 8 months pre-policy in 2012), of whom 22.0% reported physical abuse and 14.0% had been raped post-policy implementation (compared with 19.3% and 15.6% pre-policy, respectively).[^180]

[216] It may be that most customers are not violent, and that encounters rarely lead to violence. But violence is a feature, not a bug of sex work. It comes in various guises and forms and is perpetrated by customers, exploiters, traffickers, and occasionally by other sex workers. Regrettably, sometimes it may also be perpetrated by police officers. Sex workers take measures to prevent or report violence. The change from the pre-Bedford regime to the PCEPA regime did not alter any of that.

[217] Perhaps more importantly, the Applicants have not been able to point to any statistical evidence showing an increase in violence against sex workers since the enactment of PCEPA. I understand that the Applicants’ response that much violence goes unreported, and I accept that may be the case, but there is no evidence that sex workers were less likely to report violence prior to the enactment of PCEPA than they have been post-enactment.

[218] On the other hand, according to the Homicide Survey of Statistics Canada (as reported in the Juristat, the number of homicides pre- and post-PCEPA has declined – although the statistical significance is not large, given the small numbers. In the five years between 2010 and 2014, when PCEPA was enacted, 54 sex workers were victims of homicides; 20 of the 54 victims were identified of as Indigenous. In the five years after the enactment of PCEPA, from 2015 to 2019, 35 sex workers were victims of homicides; 7 of the 35 victims were identified as Indigenous. The Homicide Survey also noted that this decline took place when the number of homicides in Canada increased during the five-year periods from 2745 to 3229. According to the same Juristat, the number of injuries reported by sex workers also declined in the five-year period after the enactment of PCEPA.[^181] It is unclear exactly how to interpret these numbers, but they do not provide evidence of a general increase in violence towards sex workers since PCEPA was enacted.

[219] Overall, I find that violence plays an important role in the sex industry but that there is no evidence that the enactment of PCEPA has led to an upsurge in violence.

viii. Conclusions regarding the sex industry

• The sex trade is challenging to study.

• There are male and trans sex workers, but sex workers are overwhelming female. Customers are overwhelmingly male. For the most part, female sex workers have less education, less economic power, and lower socio-economic status than their male customers.

• Significant numbers of sex workers come from marginalized and racialized groups. Indigenous women and girls make up a disproportionate number of those involved in the sex trade.

• While there are sex workers who have agency and freely choose to enter the sex trade, large numbers of sex workers are coerced or trafficked into the sex trade. Many, if not the majority, of those who are coerced and trafficked are themselves women and girls from marginalized groups.

• I do not agree that the Respondents have conflated sex work and human trafficking. What the evidence shows is that there is a very strong link between sex work and human trafficking.

• Many third parties provide services and safety measures to sex workers without exploitation, but many are simply exploiters and/or traffickers who control sex workers through violence and manipulation and take most, if not all of their earnings.

• It is unknown how often sex workers encounter violence from customers, but violence and the threat of violence are present in the everyday lives of many sex workers.

• There is no evidence that PCEPA has led to an upsurge in the levels of violence associated with sex work.

V. Does PCEPA Violate Section 7 Of The Charter?

A. The S. 7 Framework

[220] Section 7 of the Charter states:

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.

[221] In R. v. J.J. Wagner C.J.C. and Moldaver J. set out the framework for analyzing breaches of s. 7 of the Charter:

A claimant must follow two analytical steps to establish that a law breaches s. 7 of the Charter: they must demonstrate that (1) the impugned provisions result in the deprivation of life, liberty or security of the person; and that (2) the deprivation violates principles of fundamental justice.[^182]

[222] The first step requires determining whether there has been a deprivation of life, liberty, or security of the person. The deprivation must cause a limitation or a negative impact on, an infringement of, or an interference with life, liberty, or security of the person.[^183] To demonstrate a deprivation, an applicant must show that there is a sufficient causal connection between the alleged harm and the legislative provision at issue.[^184] The sufficient causal connection test does not require that the state action be the only or dominant cause of prejudice to the person claiming the right.[^185]

[223] The second step is to determine wither the deprivation is in accordance with the principles of fundamental justice. To demonstrate that the deprivation violates principles of fundamental justice, an applicant must show that the legislative provision is arbitrary, overbroad, or grossly disproportionate.[^186] In other words, laws that impinge on life, liberty, or security of the person must not be arbitrary, overbroad, or have consequences grossly disproportionate to their objects.[^187] The two steps must not be conflated.[^188]

[224] The three principles of arbitrariness, overbreadth, and gross disproportionality compare the infringement caused by the law with the objective of the provision at issue. The three principles are not concerned with effectiveness. It is a qualitative, not a quantitative analysis.[^189]

[225] A court analyzing a Charter challenge to a section of an integrated scheme must consider related provisions as well, including those that may prevent or cure possible defects. Curative provisions can act as a kind of legislative safety valve that prevents the general rule from applying where the application would be arbitrary, overbroad, or grossly disproportionate in its effects. Curative provisions are generally available after a determination that the general rule applies. If the legislative scheme cures potential Charter breaches by providing exemptions targeting specific deprivations, that can render the scheme compliant with the Charter. In PHS the ability of the Minister to grant exemptions to the Controlled Drugs And Substances Act cured the constitutional defects.[^190]

[226] The courts must presume that Parliament intended to enact constitutional, Charter-compliant legislation. Courts must strive, wherever possible, to give effect to this presumption.[^191] I will approach the s. 7 analysis by asking the following questions:

• Do the challenged offences result in the deprivation of life, liberty, or security of the person?

• Do the deprivations violate the principles of fundamental justice by being arbitrary, overbroad, or grossly disproportionate?

[227] Before I answer those questions, however, a predicate question arises: what is the effect of prohibiting the purchase of sex?

B. Is Sex Work Now Legal?

[228] According to the Applicants, the sale of one’s own sexual services remains a permitted activity due to the immunity provisions. They argue that even if the sale of sex is now illegal (which they dispute) s. 7 still applies where the activities of the individuals are criminalized.[^192]

[229] I disagree that the sale of sex is a permitted activity. It is not. The purchase of sex is a criminal offence. On basic principles of criminal law sellers of sex could still be convicted in relation to a commercial transaction for sex in different ways, absent the immunity provisions. As Hoy J.A. pointed out in N.S., the sale is still contrary to law.[^193] There are several ways that a sex worker could be liable. The first is as a party. Section 21(1) of the Criminal Code states:

21 (1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

[230] Obviously a seller of sex does not commit the crime of purchasing. A sex worker could, however, be found guilty as a person who is party to someone else’s criminal purchase of sex.[^194]

[231] On any interpretation of s. 21(b) or s. 21(c) a person who sells sex is facilitating, or encouraging at the very least, the purchase of sex. That would satisfy the requirements of aiding and/or abetting. In R. v. Greyeyes, the Supreme Court of Canada noted that an agent for the purchaser of drugs could not be found guilty of aiding or abetting the trafficker. The agent could, however, be found guilty of aiding and abetting the criminal offence of possession of drugs. A seller of sex is not like an agent for the purchaser of drugs who cannot be found guilty of aiding or abetting the trafficking of drugs. In the Greyeyes scenario the sex worker is, in fact, the trafficker. Since it is the purchase, rather than the sale of sex that is prohibited, the trafficker can not be prosecuted in the Greyeyes scenario for that sale. Rather, a seller of sex is like the agent for the purchaser who can still be found guilty of aiding and abetting the crime of possession of drugs.[^195]

[232] Arguably, a seller of sex might also be caught by s. 22(1) of the Criminal Code. That section, the counselling provision, states:

22 (1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled.

(2) Every one who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling.

(3) For the purposes of this Act, counsel includes procure, solicit or incite.

[233] The reason a seller of sex cannot be prosecuted is not because it is legal to sell sex. A seller cannot be prosecuted because of the immunity provisions in relation to the sale of one’s own sexual services. Third parties who are in non-exploitive personal or business relationships are not immunized in the way those who sell their own sexual services are immunized. Rather, Parliament has chosen not to