Judge finds Canada’s prostitution law unconstitutional, stays charges against London duo

KITCHENER — Canada’s controversial prostitution law that outlaws buying sex suffered a precedent-setting setback after three sections were declared unconstitutional in the case of a London escort service.

In his decision released Friday, Ontario Court Justice Thomas McKay said charges of procuring, receiving a material benefit and advertising sexual services should be stayed, or set aside, for Hamad Anwar, 30, and Tiffany Harvey, 28, because the sections violated the Charter of Rights and Freedoms.

“Justice McKay . . . realized the dangers that exist and, indeed, are inherent in sex work, and the legislation the Harper government brought in increased their dangers and gave them no chance to properly protect themselves,” said James Lockyer, Anwar’s defence lawyer, after the decision was released.

The case sets a precedent, but doesn’t nullify the law. McKay’s ruling only applies to the case at hand and not across the country.  It is, however, “a very important precedent for other judges to consider when the same issue comes up, but it doesn’t amount to a declaration across the country that these sections are void and have no effect,” Lockyer said.

That would be left up to higher courts. It’s probable the Crown will appeal to the Ontario Court of Appeal and ultimately, the case could land at the Supreme Court of Canada .

Anwar and Harvey sat together in court with their family. Many wept at the decision and Anwar, eyes weeping, put his arm around his partner’s shoulder. They had no comment after the decision.

Lockyer said the couple were “very relieved.”

They ran Fantasy World Escorts from December 2014 to November 2015, providing sexual services out of two London apartments and sometimes from apartments and hotel rooms in Calgary and Edmonton.

Fantasy World advertised on the Internet and bus stops, had a code of ethics for employees, offered $2,500 to $5,000 a week, plus health benefits. All workers were hired through an interview process and customers made appointments through a phone number or website.

They were charged following an undercover police operation.

The current law, Bill C-36, passed five years ago and mirrored the “Nordic model,” giving immunity to people who sell their own sexual services, but criminalizes buying sex, advertising the sale of sexual services, and third parties who make money from it.

Anwar and Harvey argued the law denied sex workers protections given to other sectors of society, such as third-party managers of their businesses or the ability to form their own associations to protect each other.

When the trial began in London two years ago, the Crown conceded that the advertising law violated the right to freedom of expression. But it challenged that a third party profiting from the sex industry was protected under the Charter.

McKay was asked to weigh expert opinion evidence from both sides. In his decision, he noted that adult sex workers participate in the industry for many reasons, but mostly for income. Canada’s sex industry had changed over two decades with more workers advertising online and taking the work indoors.

The internet, McKay noted, has helped create networks of sex trade workers who help and protect each other and create a regular client base. Still at high risk of violence are sex workers on the street, many of whom are Indigenous women.

Third parties, McKay said, can be pimps and abusive partners, but the evidence shows that in most cases, they are business managers and administrators.

The procuring law, McKay said, is “overly broad” because it criminalizes any employee or owner of a managed business and discourages marginalized or inexperienced sex workers from managed employment.

“The result is that those types of sex workers will face greater risks to their physical and emotional health and safety if they engage in sex work,” he said.

The material benefit law doesn’t allow sex workers to pool their resources or work in a safe, managed environment, he said. “Parliament could potentially have focused the effect of the law on third parties who are in coercive, exploitative relationships with sex workers,” McKay said, but instead the law “has a grossly disproportionate effect.”