The Initial Test of Constitutional Validity: Identifying the Legislative Objectives of Canada's New Prostitution Laws

Abstract

The criminal law applicable to the commercial exchange of sex in Canada has shifted dramatically. Prior to 2013, buying and selling sexual acts was not illegal, but certain activities related to the conduct of prostitution were subject to criminal sanction. In 2013, the Supreme Court of Canada declared three offences applicable to adult prostitution inconsistent with the Charter and therefore void. The Supreme Court suspended the declaration of invalidity for a period of one year, returning the question of how to deal with prostitution to Parliament. In 2014, Parliament enacted the Protection of Communities and Exploited Persons Act. It is now a criminal offence to obtain sexual services for compensation in Canada. The constitutionality of the PCEPA has been questioned. Identifying the legislative objectives of the PCEPA will be a key step in assessing whether the criminal sanctions created by it accord with the principles of fundamental justice and may be demonstrably justified in a free and democratic society. In a recent article, Hamish Stewart suggested that the PCEPA may be unconstitutional on the basis that it has incompatible purposes of denouncing and deterring sex work while also seeking to improve sex workers’ safety. This paper examines how courts identify legislative objectives and identifies the legislative objectives of the PCEPA as reflected in the legislative record. The overall objective of the PCEPA is denouncing and deterring prostitution. This paper concludes that it is not an objective of the PCEPA or the criminal prohibitions created by it to make sex work safer for sex workers.

Keywords: Prostitution, sex work, constitutional law, legislative objectives, PCEPA, C-36