The unanimous opinion said offences Parliament added to criminal law in 2014 are constitutional
Provisions of a 2014 law that made purchasing sex a crime are constitutional and do not violate sex workers’ Charter right to security of the person, the Supreme Court of Canada ruled in a unanimous decision on Thursday.
Parliament enacted the Protection of Communities and Exploited Persons Act a year after the SCC’s decision in Canada (Attorney General) v. Bedford. In that case, the high court ruled that several criminal offences were unconstitutional because they prevented sex workers from taking safety measures to protect themselves from violent clients.
The 2014 legislation made purchasing sex – as opposed to selling it – a crime, and added a series of new offences to the Criminal Code. These included a material benefit offence, which involves making money from another person’s sex work, and a procuring offence, which involves helping arrange sex work for money.
Thursday’s decision is attributed to the high court rather than a single author.
The case involves two drivers for a Calgary escort business, Mikhail Kloubakov and Hicham Moustaine. According to the decision, Kloubakov and Moustaine earned room and board and $100 per day by driving sex workers to and from appointments with clients. The defendants also collected all the money the sex workers earned and gave the proceeds to two men who operated the business.
Two of the sex workers at the business were complainants in the case. Both met the business owners in Quebec and were later sent to work in Calgary. The sex workers testified that the owners physically assaulted them, and one said she feared for her safety.
In 2018, the owners were arrested and pleaded guilty to five human trafficking charges.
Kloubakov and Moustaine were meanwhile charged with trafficking, obtaining a material benefit from trafficking, obtaining a material benefit from the provision of sexual services, and procuring and advertising sexual services. A trial judge acquitted them of most of the charges, but convicted them of two: obtaining a material benefit from the provision of sexual services, and procuring the complainants to provide sexual services for consideration.
After the convictions, however, the trial judge heard the defendants’ arguments that the two offences violated sex workers’ rights under s. 7 of the Canadian Charter of Rights and Freedoms because they deprived sex workers of the ability to take safety measures.
The trial judge agreed. The material benefit offence is meant to prevent third parties from profiting from sex workers’ services. However, the judge ruled that this offence is overbroad and fails to protect sex workers’ safety because it effectively criminalizes third parties who might be providing security services to them in non-exploitative situations.
This discourages sex workers from hiring security services from third parties and deters them from reporting violence or other safety issues to the police, the judge said.
The trial judge reached a similar conclusion about the procuring offence, ruling that it infringed on s. 7 of the Charter by targeting third parties who may provide security services to sex workers in circumstances without exploitation. The court added that the offence criminalized individuals who help sex workers in a non-exploitative manner.
The Alberta Court of Appeal disagreed with the trial judge and ruled that neither the material benefit nor the procuring offence infringed the Charter.
The SCC sided with the appellate court, affirming the defendants' convictions. According to the SCC, the 2014 legislation had two goals: to reduce the demand for sex work and to protect sex workers from the sex industry’s risks of violence, abuse, and exploitation.
Under the legislation, there are several exceptions to the material benefit offence. The court noted that these exceptions allow third parties to receive money from sex workers in exchange for certain services – such as bodyguards, receptionists, or managers.
At the same time, the legislated exceptions exclude five situations – what the high court called “the exceptions to the exceptions” – that Parliament regarded as exploitative. These situations include when a third party obtains a material benefit “in the context of a commercial enterprise that offers sexual services for consideration,” or when they provide “a drug, alcohol or any other intoxicating substance” to a sex worker to aid or abet them in selling sexual services.
Kloubakov and Moustaine argued that the “commercial enterprise” and “intoxicating substances” provisions criminalize non-exploitative arrangements between third parties and sex workers that enhance the latter’s safety. The defendants argued that the second provision, for example, exposes a third party to criminal liability even if they give a sex worker Tylenol for a headache.
The SCC dismissed this argument. “Certain types of conduct are necessarily excluded from the scope of a ‘commercial enterprise,’” the court said. This includes “an individual who sells their own sexual services, whether independently or cooperatively with others,” third parties who provide security services to them, sex workers who operate indoors from a not-for-profit “safe house,” and individuals or entities that rent premises to an independent sex worker but do not participate in commodifying sexual activity.
The court also clarified that the legislation’s reference to “drugs” only refers to narcotics, as indicated by the French version of the law, or other intoxicating substances. Tylenol is not an intoxicating substance, the court said.
The SCC said the procuring offence also does not prevent sex workers from taking safety measures like receiving advice that might keep them safer or selling sexual services from fixed indoor locations.
“The procuring offence requires active involvement in the sale of another person’s sexual services by insisting on a high mens rea of a specific intent to facilitate the purchasing offence,” the court said. In other words, third parties cannot commit the offence if they merely knowingly or unwittingly facilitate the purchase of sex; they must also have the intention to induce a person to offer sexual services for purchase.
Third parties like receptionists, managers, or drivers employed by sex workers lack the necessary mens rea to be found guilty of the procuring offence, unless they have the specific intent to facilitate the purchase of sex, the court said.
In contrast, a commercial agency that recruits people to sell sexual services, provides a venue for transactions, makes appointments, collects agency fees, and advertises services could be found guilty of the offence.
Because both the material benefit and procuring offences are written in a way that allows sex workers to take safety measures like hiring third parties to increase their safety, neither of them violates sex workers’ security of the person under s. 7 of the Charter, the court said.
The court added that the offences also do not infringe on sex workers’ other rights under s. 7, including their right to life and liberty.
In a statement to Canadian Lawyer, the Alberta Crown Prosecution Service said it “appreciates the Supreme Court of Canada’s consideration of this matter.” However, the service said it was not in a position to speculate on the decision's impact on future cases.
Shannon Gunn Emery, a lawyer at Gunn Law Group who represents Kloubakov, told Canadian Lawyer her client is disappointed and finds that the high court's decision "leaves unanswered many questions.
"What constitutes a 'commercial enterprise' will still have to be determined on a 'case-by-case' basis. While the Supreme Court states that sex workers can hire managers, one is left wondering how," Gunn Emery said. "It appears important to determine who hired whom. If the sex worker hires a manager, the manager may have some defences when pursued by the prosecution for procuring and material benefit. However, if the manager is the one who hires the sex worker and does what a manager would normally do (like hiring, firing, encouraging productivity, or telling people what to do), it is very difficult to see any way in which that manager will escape prosecution."
Gunn Emery noted other questions that the court's decision raised. "Maybe drivers and bodyguards are permissible if the sex workers hire them directly themselves but not if they are hired by any managers or third parties? Or maybe managers could hire them as long as they are managers of a non-exploitative, joint venture.
"If the manager is exploitative but the hired bodyguard or driver is not, the bodyguard or driver is still vulnerable to prosecution? If the enterprise is exploitative but the manager is not, does one still examine whether the driver or the bodyguard were exploitative?" She adds, "One wonders where, in the hierarchy of a joint venture, criminal vulnerability starts and ends."
Kim Arial of Arial Law, who represents Moustaine, said, "We are disappointed with the outcome. However, while the court upheld the offences, it left many of our arguments unaddressed, leaving the door open for a future constitutional challenge.
"The laws continue to create dangerous conditions for sex workers, despite the immunity for selling their own services," Arial added. "Although our clients – who were not found to be exploitative – now face jail sentences, we remain hopeful that sex workers will bring this issue back before the court and succeed in striking down this harmful legislation."
Editor's Note: This story has been updated with comments from Gunn Emery and Arial.
