The New Sex Work Laws may be Harmful, but are they Constitutional?
The Protection of Communities and Exploited Persons Act (PCEPA)1 is the federal government’s new legislation surrounding sex work in Canada. The legislation is Parliament’s response to Bedford where the Supreme Court of Canada declared three sex work-related provision of the Criminal Code unconstitutional, broadly, on the basis that their negative impact on sex workers’ security disproportionately outweighed the laws’ objective of abating nuisance. The purpose of the new sex work laws has changed from abating nuisance to a more targeted purpose of protecting human dignity by deterring and denouncing prostitution.1 Since the laws came into force in 2014, there has been an outcry from the general public about the harm they will cause to sex workers. However, surprisingly, there has been little academic response to whether or not the laws would withstand a constitutional challenge. In every corner of the internet you can find opinion pieces about how the new laws are actually more harmful to sex workers, but the question still remains: are the new laws constitutional?
The following is an overview of two polarizing academic points of view. On the one hand, you have a piece by University of Toronto law professor Hamish Stewart who argues that the purpose of the PCEPA is both to discourage sex work while at the same time improving sex workers’ safety.3 Although he would find that these two purposes would be constitutional on their own, when combined, they make the legislation incoherent. Stewart believes it would fail a constitutional challenge on the basis that it is arbitrary or grossly disproportionate in regard to section 7 of the Charter. Stewart argue that the laws would not be saved by section 1 because the moral benefits of denouncing sex work would not outweigh the harm to sex workers.
