Sex Workers and the Constitutional Challenges in Canada

Court challenges brought by sex workers have played a central part in how Canadian prostitution law is understood. Selling sexual services between adults was never itself a Criminal Code offence in Canada, yet a cluster of surrounding activities was. Litigants argued that those surrounding rules made the work more dangerous without reducing it.

British Columbia is part of this history, because one of the best-known challenges originated in Vancouver's Downtown Eastside.

The legal framework before the challenges

For many years the Criminal Code contained three provisions that shaped everyday conditions of the trade. One covered keeping or being found in a common bawdy-house. A second covered living on the avails of prostitution. A third covered communicating in public for the purpose of prostitution. Taken together, they limited indoor work, made hiring drivers or security staff legally risky, and restricted the screening of clients on the street.

The Vancouver litigation

A Vancouver society formed by and for current and former sex workers, together with a former sex worker, launched a constitutional claim in British Columbia. A preliminary question was whether parties who were not facing charges themselves could bring such a case. The Supreme Court of Canada concluded in 2012 that public interest standing could be granted, which allowed the claim to proceed on its merits.

The Bedford decision

A separate case that began in Ontario, Canada (Attorney General) v. Bedford, reached the Supreme Court in 2013. The court found that the bawdy-house, living on the avails and communicating provisions each infringed the Charter right to security of the person in a way that did not accord with the principles of fundamental justice. The reasoning focused on the harm the rules caused, such as limiting safety measures, rather than on any view about the morality of sex work. The provisions were declared invalid, with the declaration suspended for a year to give Parliament time to respond.

The legislative response and continuing debate

In 2014 Parliament passed the Protection of Communities and Exploited Persons Act. It made purchasing sexual services an offence, restricted certain advertising and public communication, and gave sellers limited immunity from prosecution for their own sale of services. Supporters describe the approach as aimed at reducing exploitation and demand. Sex worker organizations and some researchers argue that it keeps much of the work hidden and continues to limit safety practices. Further constitutional challenges to the newer framework have been brought in provincial courts, and the question remains a live subject of public and legal discussion.