Canada Considers Constitutionality of Sex Work Laws

Do Canada’s sex work laws violate its constitution? A case argued before the country’s Supreme Court this month brings the question to the forefront of Canadian law.

The case is Kloubakov v. Canada. It was brought by two men—Mikhail Kloubakov and Hicham Moustaine—who were employed as drivers for women being paid for sex. Both men were found guilty of benefiting financially from, and helping to procure, people for sexual services.

How It Got To This

In 2014, Canada adopted a controversial model of sex work regulation known as the Nordic Model (or, perversely, the “equality model”). Under this model, selling sex is itself not a crime, but paying for sex is. It’s also illegal for third parties to benefit financially from sex work—for example, by running an escort agency, marketing for sex workers, or serving as a sex worker’s bodyguard—to advertise prostitution, or to procure someone for prostitution.

The current Canadian law—known as the Protection of Communities and Exploited Persons Act (PCEPA)—includes some provisions that allow for arresting sex workers themselves, too. For instance, communicating for the sale of sexual services in certain public places is a crime.

The 2014 law was passed in response to a 2013 case before the Canadian Supreme Court. In that case—Canada v. Bedford—the Court struck down laws against brothel keeping, communicating in public about prostitution, and living off the proceeds of prostitution, holding that these prohibitions violated Canada’s Constitutional Charter of Rights and Freedoms. “Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of the prostitutes,” Chief Justice Beverly McLachlin wrote in her opinion.

“The prohibitions…do not merely impose conditions on how prostitutes operate,” the Court held in Bedford. “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 Canadian Parliament acted swiftly to not only recriminalize much of the activity that the Court had ruled on but also to build on these prohibitions, now criminalizing the purchase of sexual services, too.

Since then, sex worker rights advocates have been arguing that the new laws are similarly unconstitutional.

Sex workers and their “allies spent 6 years educating and advocating for the government to uphold sex workers’ Charter rights, respect the Bedford decision, and review and reform the sex work offences introduced through PCEPA, to no avail,” according to the Canadian Alliance for Sex Work Law Reform (CASWLR), which in 2021 sued to overturn the new laws. “In March 2021, after years of inaction from Parliament to repeal (remove) the current sex work offences, sex workers were forced to go to court to challenge these laws to have their human rights protected.”

The Ontario Superior Court tossed the 2021 case, which was brought by CASWLR and a group of individual sex workers. Their appeal is still pending.

The Current Case

In arguments before the court on November 12 and 13, lawyers for Kloubakov and Moustaine argued that certain provisions of Canada’s current sex work laws violate the Canadian Charter of Rights and Freedoms, which guarantees all people a right to life, liberty, and security of person.

Kloubakov only focuses on the two offenses that Kloubakov and Moustaine were charged with—benefiting materially from prostitution and procuring persons for sexual services—and not on the whole package of antiprostitution laws. This has frustrated some sex-worker rights advocates, reports Emily Gwun-Shun Lennon at Canada’s National Post.

“We hope that the Supreme Court will strike down these two provisions and that we will get the chance to argue before the Supreme Court that the other provisions are also unconstitutional,” said Jenn Clamen, of the CASWLR.

But striking down just the two provisions at issue now could still be a benefit for sex worker safety and quality of life.

A Winnipeg sex worker named Austin told Gwun-Shun Lennon that people presume that sex workers are OK under the current laws, since selling sex is not directly illegal. But “the way that these laws actually operate, is that it criminalizes so many aspects of what it actually takes to sell sex and how that drastically impacts our safety, our security. It just infiltrates so many aspects of being a sex worker both in the actual work part but also in our personal lives.”

All things being equal, however, it would likely have been better if the CASWLR’s case was the one that made it to the Supreme Court first. The current case could be a hard sell, considering its particular circumstances.

Kloubakov and Moustaine were employed by an escort business whose principles were convicted of human trafficking. Because of this, some suggest that the conviction of Kloubakov and Moustaine means the system is working.

“The facts of the Kloubakov case demonstrate why Parliament enacted the laws,” wrote Debra M Haak, an assistant professor of law at Queen’s University in Ontario. “They involve a sex-trafficking operation and women who were moved across the country to provide sex to men for money.”

Yet the existence of those human trafficking convictions shows us there are ways to punish those engaged in exploitative or threatening activity without employing the laws against benefiting financially from or procuring someone for sexual services. And if Kloubakov and Moustaine were directly or knowingly involved in violence or exploitation, it seems they could have been charged under Canada’s trafficking in persons law, too. Among other things it criminalizes transporting a person for the purposes of exploiting them or facilitating their exploitation by someone else.

The fact that Kloubakov and Moustaine weren’t convicted under the trafficking statute suggests there is a qualitative difference between what they did (benefiting/procuring) and offenses that could be considered trafficking. And this bolsters the case for not treating one as synonymous with the other.

In any event, the fact that Kloubakov and Moustaine may have worked for an exploitative enterprise doesn’t mean that anyone who benefits from or procures someone for prostitution is committing harm. For a variety of reasons, sex workers may willingly employ third parties, such as drivers, or choose to work for someone that takes a cut of their earnings in exchange for services such as finding and vetting clients, arranging dates, or providing security.

As it stands, Canadian sex workers who wish to employ third parties for any reason are forced to work in a black market, with all the extra risk that entrails. In fact, Canadian sex workers in general are forced to work in a black market, since their clients are criminalized and so is communications about their services.

Far from giving a license to violence and exploitation, striking down the PCEPA laws would free sex workers to work in ways that could be safer and more profitable, while robbing those engaged in bad deeds of the power they derive from criminalization.

The British Columbia Civil Liberties Association is one of the groups that intervened on the side of the plaintiffs, meaning it, too, wants to see the regulations struck down. “By criminalizing sex work and limiting sex workers to non-profit work associations (an unrealistic hypothetical), [the current law] restricts sex workers from assessing and addressing their protected safety needs,” the group argued in July. It “confronts sex workers with an untenable choice: work alone, placing themselves in materially dangerous conditions, or risk criminalization by choosing to work with others for their own safety and wellbeing.”

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More Sex & Tech News

DOJ Wants to Force Google to Give Up Chrome: The U.S. Department of Justice is proposing the forced breakup of Google as a remedy for the antitrust case—United States v. Google LLC, one of two antitrust cases against Google—that was decided in August. Specifically, the DOJ would force Google to sell off its web browser, Google Chrome. Here’s what some antitrust experts are saying:

“The DOJ’s proposed remedies would severely harm America’s small business owners, who leverage Google’s secure, cost-effective integrated tools to run and grow their businesses,” said Connected Commerce Council (3C) Executive Director Rob Retzlaff. “Radically altering the way these tools operate and integrate will create significant disruptions for small businesses—and claiming otherwise is disingenuous. Rather than ‘remedying’ anything, these extreme measures would be a massive blunder that punishes the hard-working entrepreneurs who keep America’s economy and communities thriving.”

“In his liability finding in the Google search case, Judge Mehta made it clear that he recognized the efficiencies and welfare benefits that flow from the integrated nature of Google’s platform. Mandating a ‘break-up’ that would require Google to sell of key elements of its integrated platform, such as the Chrome browser, would destroy key integrative efficiencies and reduce welfare,” commented Alden Abbott, former Federal Trade Commission General Counsel and a current research fellow at the Mercatus Center. Reassuringly, Abbott finds it “highly unlikely that Judge Mehta would endorse such a harmful ‘remedy.’”

And that’s provided the incoming Trump administration continues on the Biden administration’s path. “Though the forced sale of Chrome would be a dramatic turn of events for Google, the incoming administration is likely going to upend many of the DOJ’s current plans, perhaps including its prosecutorial strategy in this case,” said Damian Rollison, SOCi’s director of market insights.

“Despite the market dominance of Chrome, it’s fair to say that a strike against Google’s browser hits the company at one of its weaker points; plenty of reasonable alternatives exist, from Safari to Firefox to Brave, DuckDuckGo, and even Microsoft’s revamped Edge,” added Rollison. “All of these would likely benefit from a market where Chrome is no longer propped up by membership in the Google family.”

Rollison’s comment gets at one of the more irritating elements of the Biden administration’s antitrust enforcement theory: the idea that it’s meant to prop up competitors to popular products.

People have plenty of browser options, as Rollison points out. If they use Chrome, it’s because they either prefer it to the others or, at least, find it sufficient enough as a default not to warrant changing it. Consumers are not being bilked, defrauded, or harmed; the federal government’s role here is simply stepping in and saying that Chrome competitors deserve a leg up.

Google has until December 20 to counter the DOJ’s desired remedies with its own proposal.

No, Brendan Carr Is Not a “Free Speech Warrior”: Reason‘s Jacob Sullum runs down the ways in which Brendan Carr, Trump’s pick to run the Federal Communications Commission (FCC), is a big-government promoting, First Amendment–disrespecting mess of a choice, contra Trump’s claims that he’s “a warrior for Free Speech.”

Carr’s agenda for “reining in Big Tech,” as described in the chapter that he contributed to the Heritage Foundation’s 2025 Mandate for Leadership, includes new FCC rules aimed at restricting the liability protection offered by Section 230 of the Communications Decency Act. Carr also supports regulations that would “impose transparency rules on Big Tech” and legislation that “scraps Section 230′s current approach.” He favors “reforms that prohibit discrimination against core political viewpoints,” which he says “would track the approach taken in a social media law passed in Texas.”

That law, which says social media platforms may not “censor” content based on “viewpoint,” was the focus of NetChoice v. Paxton, a case that the U.S. Supreme Court decided in February along with Moody v. NetChoice, which involved a similar Florida law. In both cases, the Court unanimously vacated appeals court decisions (upholding the Texas law and blocking provisions of Florida’s law, respectively), saying they did not properly apply the First Amendment.

NetChoice sues over social media “addiction” act: California’s Protecting Our Kids from Social Media Addiction Act is “the latest in a string of misguided attempts by California lawmakers to regulate online speech ‘for the children,’” writes Techdirt‘s Mike Masnick. “And like its predecessors, it is destined to fail a court challenge on First Amendment grounds.” Now, the tech trade group NetChoice has “stepped up and sued to block this law from going into effect,” notes Masnick. From the group’s complaint:

California is again attempting to unconstitutionally regulate minors’ access to protected online speech—impairing adults’ access along the way. The restrictions imposed by California Senate Bill 976 (“Act” or “SB976″) violate bedrock principles of constitutional law and precedent from across the nation. As the United States Supreme Court has repeatedly held, “minors are entitled to a significant measure of First Amendment protection.”…And the government may not impede adults’ access to speech in its efforts to regulate what it deems acceptable for minors.…These principles apply with equal force online: Governments cannot “regulate ['social media'] free of the First Amendment’s restraints.”

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