Prostitution laws, not sex work, source of 'structural inequality,' says lawyer

OTTAWA — The laws governing prostitution in Canada — not sex work itself — are creating inequality, a lawyer told the Ontario Superior Court on Tuesday as part of a constitutional challenge.

"Sex work itself is not a source of structural inequality. However, the impugned laws are," said Pam Hrick, the executive director and general counsel for the Women's Legal Education and Action Fund, which is an intervener in the court case.

"The effects include the constant over surveillance by police in marginalized communities, as well as barriers, including accessing and maintaining housing," she added.

"The laws have the impact of restricting the agency of sex workers."

The Supreme Court of Canada struck down the prohibition on prostitution in 2013 after lawyers argued existing provisions were disproportionate, too broad and put sex workers at risk of harm.

The Canadian Alliance for Sex Work Law Reform, which includes 25 sex-worker organizations across the country, started arguing in a Toronto courtroom on Monday that the laws governing sex work are fostering stigma, inviting targeted violence and removing safe consent.

They also argue they violate the Canadian Charter of Rights and Freedoms.

Lawyers representing transgender, Indigenous and Black sex workers were expected to argue on Tuesday how laws brought in by the Harper-era Conservatives are too restrictive and disproportionately harm marginalized groups.

The alliance says there shouldn't be any criminal laws specific to sex work, and it has dozens of recommendations to create a more regulated industry.

Michael Rosenberg, the lawyer representing the alliance, said in court on Tuesday that "the decriminalization of sex work is the only rational choice" to the advocacy groups involved.

He also told Ontario Superior Court Justice Robert Goldstein how he thinks it should happen.

"And in a political sense, that's what they'd like to see," Rosenberg said of decriminalization.

"But that's not how it works. In this courtroom, you aren't asked to decide what Parliament must do. What you can do is you can recognize unconstitutional legislation, and you can strike it down," he said.

This report by The Canadian Press was first published Oct. 4, 2022.

David Fraser, The Canadian Press