‘Significant misunderstanding’ of what is captured by new sex work law, prof says after ruling

By Ian Burns

Last Updated: Friday, October 20, 2023 @ 2:54 PM

Law360 Canada (October 20, 2023, 1:18 PM EDT) -- Alberta’s top court has overturned a decision which said a number of provisions in Canada’s sex work law were unconstitutional, a ruling which could find its way to the Supreme Court.

The two accused, Mikhail Kloubakov and Hicham Moustaine, were convicted of two offences under the Protection of Communities and Exploited Persons Act, or PCEPA — obtaining a material benefit from the provision of sexual services and procuring a person to offer or provide sexual services for compensation. The two men challenged the constitutionality of the offences, and the trial judge entered a stay of charges after ruling they violated their Charter rights to life, liberty and security of the person.

The lower court judge held the sections were overbroad because they captured individuals who receive a material benefit from sex work who may otherwise support the safety of sex workers in non-exploitative situations, such as providing a sex worker with Tylenol or providing a spa as a safe location for work.

But Justice Patricia Rowbotham, writing for a unanimous Alberta Court of Appeal, has overturned that finding and entered convictions for the two men. She wrote that the trial judge’s interpretation did not accord with the principles of statutory interpretation.

“Subsection 286.2(5)(c) [of the Criminal Code] refers to the provision of a ‘drug, alcohol or any other intoxicating substance.’ The use of ‘other intoxicating substance’ clarifies that the provision of drugs captures intoxicating drugs, not medicinal drugs,” she wrote. “Moreover, restricting the subsection to the provision of intoxicating substances is consistent with the purpose of the section as a whole. The other subsections speak of the use or threat of violence, intimidation or coercion and the abuse of a position of trust or power. In this context the provision of drugs for the purpose of aiding or abetting a person to provide sexual services is meant to address the notion of exploitation.”

Justice Rowbotham wrote that “the mere giving of advice or even providing a room, without more, is not conduct that is caught by the offence.”

“In contrast, a commercial agency that recruits, provides rooms for the transactions, makes appointments, and collects fees has engaged in the conduct prohibited by subsection 286.3(1) [of the Code]. This is the conduct that Parliament intended to curtail to achieve its objective of deterring the procurement of persons for the purpose of prostitution,” she wrote. “The offence in subsection 286.3(1) is aimed at prohibiting the recruitment of vulnerable people into the sex trade. This was Parliament’s choice.”

By narrowing her analysis solely to the purpose of mitigating some of the dangers associated with the provision of sexual services, Justice Rowbotham wrote the trial judge ignored the other objectives of PCEPA — reducing the demand for prostitution with a view to discouraging entry into it and to prohibit the economic interest in the exploitation of the prostitution of others, in order to protect communities, human dignity and equality.

Debra Haak, Queen’s University

Debra Haak, Queen’s University

“An overbroad law is one that is so broad in scope that it includes some conduct that bears no relation to its purpose, making it arbitrary in part,” Justice Rowbotham wrote. “The overbreadth standard is not easily met; it is to be determined on a case-by-case basis, and ultimately the question is whether the law is ‘inherently bad’ because there is no connection, in whole or in part, between a law’s effects and its purposes.”

Justice Rowbotham also noted the Ontario Court of Appeal (in R. v. NS, 2022 ONCA 160) had found the Criminal Code provisions on material benefit and procuring to be constitutional. She was joined by Justices Elizabeth Hughes and Jolaine Antonio in her ruling, issued Oct. 10 (R. v. Kloubakov, 2023 ABCA 287).

Debra Haak, who teaches criminal and constitutional law at Queen’s University in Kingston, Ont., said the objectives of PCEPA are poorly understood.

“How the objective is articulated impacts the question of whether the law fails to accord with principles of fundamental justice under s. 7 of the Charter. The Alberta Court of Appeal found that the trial judge had not properly identified the objectives of the material benefit provision which undermined her finding that the laws were overbroad,” she said. “Since these laws came into force in 2014, many have suggested that their primary aim is to make sex work safer, or mitigate the risks associated with sex work. While this objective informs the exceptions and the immunity from prosecution, it is not an objective of the four offences — obtaining, material benefit, procuring, and advertising — to make sex work safer or mitigate the risks associated with it.”

There is also a significant misunderstanding of what is captured by the new laws, said Haak — which also impacts the s. 7 analysis.

“In both Kloubakov and NS, the Courts of Appeal found that the safety-enhancing activities alleged to be unlawful under the new legislative scheme were, in fact, permitted when the language of the legislative provisions was properly interpreted,” she said. “This failure to understand the objectives and scope of the legislative provisions also influences what courts can make of evidence about the effect of the laws.”

Haak noted that, if appealed, Kloubakov may be the first opportunity for the Supreme Court to consider the constitutionality of some of the new offences enacted by PCEPA in 2014.

“Leave to appeal the decision in the NS case was dismissed. However, in Kloubakov, because the Alberta Court of Appeal entered convictions against Kloubakov and Moustaine, leave might not be required,” she said. “They may well have an appeal as of right on any question of law pursuant to section 691(2)(b) of the Criminal Code.”

A spokesperson for the federal Department of Justice said in an email that it would be inappropriate to comment on the specifics of the case as the respondents can seek leave to appeal to the Supreme Court of Canada.

Counsel for Kloubakov and Moustaine did not reply to a request for comment.

If you have any information, story ideas or news tips for Law360 Canada please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.

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