Today, the Supreme Court released its reasons in R. v. Kloubakov and unanimously upheld Canada’s prohibitions on profiting from, or inducing, the sale of another person’s sexual acts. Those prohibitions were added to the Criminal Code of Canada in 2014 by the Protection of Communities and Exploited Persons Act [“PCEPA”].
Christian Legal Fellowship (CLF) was one of 10 non-government interveners in the high-profile case, and welcomes today’s decision. CLF argued that Parliament was entitled to conclude that a commercialized sex trade is systemically exploitative and perpetuates inequalities, and that the impugned laws could not be invalidated solely based on one’s disagreement with that conclusion. CLF also argued that Parliament is not constitutionally required to view the purchase of sexual acts as an ordinary “transaction”, nor to allow a commercial market for it.
Today, the Court recognized that “Parliament views profiting from the commodification of another human being’s sexual activity as inherently involving exploitation” [para 91, emphasis added]. Ultimately, the Court concluded, “The material benefit and procuring offences do not infringe s. 7 of the Charter” [para 171].
“Today’s decision affirms the constitutionality of two very important legal protections,” said Derek Ross, CLF’s general counsel and executive director. “Parliament carefully crafted these laws with the goal of deterring and denouncing social harms and sexual exploitation. The Court has heard and understood Parliament’s concerns and respected their decision on how to respond to these systemic harms and inequalities.”
Importantly, the Court carefully examined PCEPA’s preamble to determine the law’s purpose (a point emphasized in CLF’s intervention), noting that “the legislation seeks to reduce and ultimately eliminate the commercial sex trade, and with it the social harm, violence, and exploitation of marginalized and vulnerable persons, especially women and children, that Parliament sees as inherent in sex work” [para 70].
“The preamble to the law emphasizes the importance of protecting ‘human dignity and the equality of all Canadians by discouraging prostitution, which has a disproportionate impact on women and children’. Today’s decision allows Canada to continue to pursue that important goal,” said CLF’s senior legal counsel André Schutten, who presented CLF’s oral arguments as an intervener at the Supreme Court.
CASE HISTORY
In 2014, Parliament criminalized the commercial exchange of sexual touching when it passed the Protection of Communities and Exploited Persons Act (PCEPA). As the Supreme Court explained, “For the first time in Canadian law, the PCEPA made purchasing sex a crime” [para 2]. Unlike the law struck down in Bedford, PCEPA clearly stated that a prostitution system is intrinsically exploitative, due in part to the harms “caused by the objectification of the human body and the commodification of sexual activity”. As such, PCEPA does not impose penalties on persons in prostitution (predominantly women and girls), but seeks to protect them by targeting third parties (predominantly men) who create the demand for prostitution and who capitalize on and benefit from it.
This approach, described as the Nordic Model or Equality Model, has also been adopted in Sweden, Norway, Republic of Ireland, Iceland, France, and Northern Ireland, endorsed by the European Parliament, the Council of Europe, and the UN Committee on the Elimination of Discrimination against Women, affirmed by the UN Special Rapporteur on violence against women and girls, and upheld by the European Court of Human Rights, as well as the Alberta Court of Appeal and the Ontario Court of Appeal. CLF highlighted these various facts in its intervention, which were also noted by the Supreme Court in today’s decision [para 21].
Opponents to the Nordic model argue that the commercial exchange of sex should not be understood as “exploitation” but as “work”, and that Parliament’s policy approach should be rejected accordingly. This was one of the arguments advanced in Kloubakov, which involved two men convicted under PCEPA’s provisions as parties of obtaining a material benefit from sexual services and procuring a person to offer or provide sexual services (ss. 286.2(1) and 286.3(1) of the Criminal Code). At first instance, the trial judge determined that those provisions infringed s. 7 Charter rights. The Alberta Court of Appeal disagreed, and entered convictions against the men.
Those men appealed, as of right, asking Canada’s highest court to find these sections unconstitutional, leading to today’s decision.
SUPREME COURT’S DECISION
The Court rejected calls to invalidate PCEPA because it is “based on the mistaken premise that all sex work is exploitative” [paras 94, 145, 154], reflecting CLF’s submissions on this point [see CLF’s intervention factum, paras 1-2, 7-11]. The Court accepted that the law can prohibit profiting from the sale of another person’s sexual acts, even in situations that might not appear to involve a “a specific act of exploitation”, acknowledging Parliament’s conclusion that “commodification, and thus exploitation, results from the fact of profiting from the sale of another human being’s sexual activity” [paras 92-93, emphasis added].
This respects PCEPA’s recognition that prostitution can be both factually and structurally exploitative, a point emphasized in the submissions of CLF and other interveners, some of which were also acknowledged in the decision:
“[I]n forceful submissions, the intervener the Women’s Equality Coalition (consisting of the Vancouver Rape Relief Society, Concertation des luttes contre l’exploitation sexuelle, Aboriginal Women’s Action Network, Formerly Exploited Voices Now Educating, London Abused Women’s Centre and Strength in Sisterhood) rejected ‘the Appellants’ promotion of prostitution as a solution to women’s economic inequality’. This intervener ‘particularly reject[ed] the cruel logic that the overrepresentation of the most marginalized women, including Indigenous women, in the prostitution industry, is akin to an employment equity program, rather than a reflection of profound sexism and sexualized colonialism’.” [para 163]
The Supreme Court’s unanimous decision also engaged with recent scholarship on the topic from scholars such as Prof. Debra Haak, including citing with approval two articles developed out of CLF’s academic symposiums on human rights.
MULTIPLE COURTS HAVE NOW UPHELD PCEPA’S PROVISIONS
Today’s decision was the Supreme Court’s first pronouncement on the constitutionality of any of PCEPA’s provisions, and is consistent with several other Canadian judgments, including a recent decision of the Ontario Superior Court. In that case, after an extensive review of the evidence, that court found ample support for Parliament’s conclusion that prostitution systems are inherently harmful, particularly in light of the ways that they exploit conditions of inequality along intersecting axes of age, race/Indigeneity, economic status, and – especially – sex/gender. That court made the following findings:
“where a customer purchases sex, there is a significant possibility that the sex worker has been trafficked, manipulated, lured, forced, and/or coerced into providing sexual services, and in continuing to provide sexual services…there is also a significant possibility that an exploiter or trafficker has used manipulation and/or violence to control that sex worker, take her earnings, and impose a “price” on her to leave the sex trade”
“A significant number of women and girls lured or coerced into sex work are Indigenous or from other vulnerable racialized or sexual minorities”
“For the most part, female sex workers have less education, less economic power, and lower socio-economic status than their male customers”
“there is a very strong link between sex work and human trafficking… violence and the threat of violence are present in the everyday lives of sex workers”
“A significant number of women and girls lured or coerced into sex work have pre-existing vulnerabilities, including contact with the child protection and foster care system; mental health or cognitive challenges; substance abuse challenges; or a combination of all of these things”
That decision also rejected a constitutional challenge to other provisions contained in PCEPA, which were not at issue in Kloubakov, and which may still make their way to the Supreme Court.
CLF will continue to defend the inherent dignity of all members of the human family, and advocate against systems that exploit inequalities.
READ MORE ABOUT CLF’S WORK TO COMBAT SEXUAL EXPLOITATION, TRAFFICKING, and inequality:
Christian Legal Fellowship’s intervention factum in this case (R. v. Kloubakov) at the Supreme Court of Canada. CLF was represented in the litigation by André Schutten, Vivian Clemence, and Derek Ross.
CLF’s review of the Justice Committee’s Report on the Protection of Communities and Exploited Persons Act
CLF’s submissions to the Standing Committee on Justice and Human Rights re PCEPA (English, French)
CLF’s participation in the International Centre for Criminal Law Reform & Criminal Justice Policy’s consultations re the Palermo Protocol
CLF’s submissions to the Standing Committee on Access to Information, Privacy and Ethics re online exploitation
CLF’s submissions to the Standing Committee on Justice and Human Rights’ National Consultation on Justice and Human Rights (English and French)