Are Canada’s sex laws unconstitutional?

Observers deeply disappointed by the lack of concrete proposals in the Subcommittee on Solicitation’s long-awaited report to Parliament last December, are now hoping the courts will find Canada’s sex laws unconstitutional and order them changed.

The subcommittee’s report, tabled Dec 13 after three years of research and a cross-country consultation, contained little consensus among its members, offering only vague suggestions for future reform and the need for further study. They stopped far short of recommending the government decriminalize all consensual sex acts among adults and the spaces in which they take place.

Now, two separate challenges to what many critics call Canada’s antiquated sex laws could begin making their way toward the nation’s top court within the year, as lawyers in both BC and Ontario prepare cases to argue these laws violate rights guaranteed under the Charter.

Observers in Canada’s queer and sex trade communities are watching these preparations with great interest.

Peter Bochove, a Toronto bathhouse owner and founder of The Committee to Abolish the 19th Century, thinks a court challenge is now the only way to achieve much needed reforms to Canada’s sex laws.

“The only way to proceed is through the courts,” he told Xtra West. “Politicians don’t want to touch this issue. It is outrageous that this hasn’t been dealt with yet. A few politicians like Libby Davies, Bill Siksay and Hedy Fry have clear, good positions, but most of them are afraid.”

Ellen Woodsworth, out lesbian, former Vancouver city councillor and lifelong activist, says she welcomes the upcoming legal challenges as well. “The economy is forcing more and more people into survival sex work. We need a challenge for basic rights and safety for sex trade workers,” she says.

Katrina Pacey, a staff lawyer with the Pivot Legal Society, a group of local lawyers dedicated to serving marginalized clients involved in sex trade and drug use in the Downtown Eastside, says Pivot hopes to file a Charter challenge to Canada’s sex laws within the next few months.

“Sex trade workers are dying because of prostitution law,” Pacey told Xtra West. “The Criminal Code provisions that govern adult sex workers mean they cannot work safely.”

Pacey says Pivot has assembled a team of lawyers and activists for the project, and is now holding discussions with sex workers facing criminal charges who may be interested in challenging their charges and acting as plaintiffs in the case.

“Obviously, finding a plaintiff is a difficult process,” she notes. “In the current social climate, it is potentially risky for sex trade workers to come forward. However, we no longer feel that political pressure will lead to change in the near future, given the results we saw from [the] Subcommittee on Solicitation last year.”

Pacey says the Pivot team has not yet determined all of the sex laws it plans to challenge. But Section 213 (which prohibits public communication for the purpose of prostitution-the section critics say has made it impossible for street-level sex workers to safely screen potential clients before going off with them) and Section 210 (criminalizing bawdyhouses) will likely be on the list.

In addition to criminalizing shared venues where sex workers can safely practice their trade, the bawdyhouse section has also been used to target consensual gay sex spaces like bathhouses, where authorities say indecent acts take place.

While Pivot seeks plaintiffs here, a second court challenge is in the works in Toronto, where Osgoode Hall law professor Alan Young is preparing a sweeping Charter challenge to all Criminal Code provisions that address adult sex work.

Young is also co-founder of the Innocence Project, an ongoing attempt to identify and free unjustly imprisoned Canadians. His university website says he maintains a small criminal law practice “primarily devoted to challenging state authority to criminalize consensual activity.”

Young told Xtra West that he and a group of his law students will be ready to launch their challenge once they secure funding for transcripts and witnesses. He expects to go forward with the case sometime in 2007.

Unlike the Pivot action, which will be based on defending a plaintiff who faces criminal prosecution, the Osgoode initiative will be a “civil action for declaratory relief.” That means it will simply ask the court to rule on whether Sections 210, 213 and 212.1.j (which prohibits “living off the avails” of prostitution) are unconstitutional.

Canada’s sex laws are arbitrary, Young argues, and thus violate the right all Canadians have to life, liberty and the security of person guaranteed under Section 7 of the Charter of Rights.

Young also plans to ask the court to consider a “compelling evidentiary record of increased vulnerability” for sex trade workers created by the current laws.

Both Charter challenges will be expensive to pursue, but Young and Pacey seem confident they’ll each find a way, somehow, to bring their challenges before the courts.

“This is a case that needs to be brought,” says Young. “Our application to Legal Aid has been rejected once and is now being reconsidered. It is our hope and intention to go forward with or without Ontario Legal Aid funding.”

This comes as good news to Jennifer Clamen, mobilization co-coordinator for Stella, a sex trade workers’ advocacy group in Montreal.

“I think this challenge is a good idea. It is very important that those guiding the challenges take into account the priorities of sex trade workers. Most are being charged under Section 213. That’s the section that poses the most danger to marginalized sex trade workers. I’m not hopeful for a win here, but it is important that these issues be raised. I hope the two challenges coordinate as they go forward to the Supreme Court,” she adds.