Supreme Court hears case on Canada’s prostitution laws

The Supreme Court of Canada is currently hearing arguments about the constitutionality of Canada’s prostitution laws. The case, R v. Kloubakov, is the first time Canada’s highest court will consider whether Canada’s legislation on prostitution complies with the Canadian Charter of Rights and Freedoms.

The case centres on two men who were convicted in 2021 of benefitting financially from sexual services.

The evidence and arguments in the case reveal two very different approaches to addressing inequality in the commercial sex industry. The Supreme Court’s decision will reveal whether Parliament’s response to inequality must prioritize individual liberty.

Canada’s prostitution laws

Canada enacted new criminal prostitution laws in 2014 aimed at reducing or eliminating prostitution.

The first offence prohibits obtaining sexual services for consideration. The law criminalizes the purchase, but not the sale, of sexual services. This made prostitution unlawful for the first time in Canada.

Three additional offences target third parties that promote and capitalize on a commercial sex market. It is an offence to materially benefit from, procure someone into providing or advertise the provision of sexual services.

This approach to prostitution is consistent with policies and laws in places like Sweden, Norway, Iceland, Ireland, Northern Ireland, France and Israel. It is increasingly referred to as an equality model.

Canada’s criminal prostitution laws were crafted in response to three truths about prostitution. First, it occurs in contexts of — sometimes profound — inequality. Second, human trafficking takes place in the commercial sex market. Third, there is a high risk of experiencing violence from male buyers or employers.

Canada’s current prostitution policy therefore aims to respond to inequalities, and the dangers of human trafficking and violence against women.

The R v. Kloubakov case

The facts of the Kloubakov case demonstrate why Parliament enacted the laws. They involve a sex-trafficking operation and women who were moved across the country to provide sex to men for money.

The charges against Mikhail Kloubakov and Hicham Moustaine were laid following a human trafficking probe involving the Calgary Police Service and the Québec Anti-Human Trafficking Task Force. Five men were charged with trafficking offences and with prostitution-related offences.

The owners of the commercial operation have been convicted of human trafficking. The two men now challenging the laws as unconstitutional worked for them.

They were initially found guilty of two prostitution-related offences, but that conviction was overturned after lawyers for the men successfully challenged the constitutionality of the legislation. The charges where reinstated after the Crown took the case to Alberta’s Court of Appeal. The two men have now appealed to the Supreme Court.

Women who gave evidence at the trials of these men said they had no control over their work. Male buyers negotiated the sexual acts to be performed and the price to be paid with the owners of the sex-trafficking operation. All the money was given to those owners. In 2021, an Alberta court heard how money given to the women was often meant to pay for goods and services that increased their saleability to men, such as tanning, clothes and esthetics.

Those women also experienced violence at the hands of the owners of the commercial operation. One woman described being hit and seeing another woman being strangled and hit.

Prostitution laws said to increase risks for sex workers

Every constitutional challenge to the current criminal prostitution laws — including Kloubakov — has involved an argument that the laws violate sex workers’ rights. The term “sex worker” is used to describe individuals who provide sex for money voluntarily to earn income. Their experiences and claims don’t include all who provide sex to men for money.

In early constitutional cases, applicants argued that the laws violated sex workers’ rights by preventing them from employing safety-enhancing measures, thereby increasing their risks. However, two courts of appeal have now rejected this argument.

The Ontario and Alberta Courts of Appeal found that, properly interpreted, current laws do not prevent sex workers from hiring third parties to provide goods and services for their protection, health and safety.

The legislative scheme enacted in 2014 includes exceptions to the material benefit offence to allow sex workers to access safety-enhancing services in non-exploitive contexts. It also includes an immunity from prosecution that means sex workers cannot be criminally prosecuted for providing sex in the now unlawful context where it takes place.

With these laws, Parliament took the view that the best way to reduce the risks associated with prostitution was to expose as few people as possible to those risks.

When enacted by Stephen Harper’s Conservative government, the laws included $20 million to support those seeking to exit prostitution. Justin Trudeau’s Liberal government did not continue funding that program. However data from clients who participated in the government’s Measures to Address Prostitution Initiative indicates some successfully left the sex trade.

Laws constrain sex workers’ liberty

In more recent constitutional challenges — including Kloubakov — the laws are also said to be unconstitutional because they violate sex workers’ right to make fundamental personal decisions. The argument is that responding to inequality and marginalization in the commercial sex industry requires prioritizing an individual sex worker’s ability to make their own choices. This is said to be especially important when there are few available choices.

The applicants in Kloubakov argue sex work is lucrative and may be the best way for some people (including marginalized, immigrant, racialized and Indigenous people) to support themselves. Some interveners in the case argue that any measure denying already marginalized and disadvantaged people the ability to make choices “about their fundamental being, dignity and autonomy is a grave infringement of that individual’s liberty.” Other interveners disagree, arguing that prostitution should not be seen as a “solution to women’s economic inequality.”

In this case, the Supreme Court will decide whether laws targeting third parties in the commercial sex trade violate sex workers’ rights. In doing so, it will contend with complex stories about prostitution, sex work and sex trafficking.

Supreme Court justices will also hear competing arguments about how to respond to the inequality prevalent in the commercial sex market.

Is Parliament constitutionally permitted to enact criminal laws aimed at reducing the prevalence of an activity that exploits inequality and includes human trafficking and male violence? Or is Canada constitutionally required to have a commercial market for sex because some people with few or no choices must be allowed to choose it?