The Supreme Court of Canada is currently hearing arguments on the constitutionality of Canada’s prostitution laws. The case, R v. Kloubakovthis is the first time that Canada’s highest court will examine whether Canadian legislation on prostitution is consistent with the Canadian Charter of Rights and Freedoms.

The case concerns two men who sentenced in 2021 to benefit financially from sexual services.

The evidence and arguments in the case reveal two very different approaches to tackling inequality in the sex industry. The Supreme Court’s decision will reveal whether Parliament’s response to inequality must prioritize individual liberty.

Canadian laws on prostitution

Canada passed new criminal laws on prostitution in 2014 aimed at reducing or eliminating prostitution.

The first offense prohibits obtaining sexual services for payment. The law criminalizes the purchase, but not the sale, of sexual services. This made prostitution illegal for the first time in Canada.

Three other offenses target third parties who promote and profit from the sex market. It is an offense to materially benefit from, induce someone to provide or advertise the provision of sexual services.

This approach to prostitution is consistent with the policies and laws of countries such as Sweden, Norway, Iceland, Ireland, Northern Ireland, France and Israel. It is called more and more a model of equality.

Canada’s criminal laws on prostitution were developed in response to three truths about prostitution. First, it happens in contexts of inequality – sometimes profound. Second, human trafficking takes place on the sex market. Third, there is a high risk of experiencing violence from male buyers or employers.

Canada’s current policy on prostitution therefore aims to respond to inequalities and the dangers of human trafficking and violence against women.

THE R v. Kloubakov case

The facts of Kloubakov This case demonstrates why Parliament passed these laws. This is a sex trafficking operation and women are moved across the country to provide sexual services to men for money.

The accusations against Mikhail Kloubakov and Hicham Moustaine were brought following an investigation into human trafficking involving the Calgary Police Service and the Quebec Human Trafficking Task Force. Five men were charged with trafficking and prostitution-related offenses.

The owners of the commercial operation were convicted of human trafficking. Both men are now challenging the laws as unconstitutional worked for them.

They were initially convicted of two prostitution-related offensesbut that conviction was overturned after the men’s lawyers successfully challenged the constitutionality of the legislation. The charges were reinstated after the Crown took the matter to the Alberta Court of Appeal. Both men have now appealed to the Supreme Court.

Women who testified at these men’s trials said they had no control over their work. Male buyers negotiated the sexual acts to be performed and the price to pay with the owners of the sex trafficking operation. All the money was given to these owners. In 2021, an Alberta court heard that money given to women was often intended to pay for goods and services they needed. increased their market value among menlike tanning, clothing and aesthetics.

These women were also victims of violence at the hands of the owners of the commercial operation. A woman described being hit and seeing another woman being strangled and beaten.

Prostitution laws would increase risks for sex workers

Every constitutional challenge to current criminal prostitution laws – including Kloubakov – involved an argument that laws violate the rights of sex workers. The term “sex worker” is used to describe people who voluntarily offer sexual services for money to earn income. Their experiences and demands do not include everyone who provides sex to men for money.

In the first constitutional cases, the petitioners argued that the laws violated the rights of sex workers by preventing them from using measures to enhance their safety, thereby increasing their risks. However, two appeals courts have now rejected this argument.

THE Ontario And Alberta Appellate courts have held that, properly interpreted, current laws do not prevent sex workers from hiring third parties to provide goods and services for their protection, health, and safety.

Legislation adopted in 2014 includes exceptions to the material advantage offense to allow sex workers to access safety-enhancing services in non-exploitative settings. It also includes a immunity from prosecution this means that sex workers cannot be criminally prosecuted for providing sexual services in the now illegal context in which this takes place.

With these laws, Parliament believed that the best way to reduce the risks associated with prostitution was to expose as few people as possible to these risks.

When passed by Stephen Harper’s Conservative government, the laws provided $20 million to support those seeking to exit prostitution. The Liberal government of Justin Trudeau did not continue to fund this program. However, data from customers who participated in the government program Measures to combat prostitution indicates that some have managed to leave the sex trade.

Laws restrict the freedom of sex workers

In the context of more recent constitutional challenges, notably Kloubakov — laws are also considered unconstitutional because they violate the right of sex workers to make fundamental personal decisions. The argument is that addressing inequality and marginalization in the sex industry requires prioritizing the ability of individual sex workers to make their own choices. This is considered particularly important when there are few choices available.

The candidates in Kloubakov argue sex work is lucrative and may be the best way for some people (including marginalized, immigrant, racialized and Indigenous people) to support themselves. Some participants in the case argue that any measure denying already marginalized and disadvantaged people the opportunity to make choices “concerning their fundamental being, dignity and autonomy constitutes a serious attack on that individual’s freedom.” Other commenters disagreearguing that prostitution should not be seen as a “solution to women’s economic inequality”.

In this case, the Supreme Court will decide whether laws targeting third parties in the sex trade violate the rights of sex workers. In doing so, he will have to confront complex stories about prostitution, sex work and sex trafficking.

Supreme Court justices will also hear conflicting arguments on how to address the inequalities that prevail in the sex market.

Is Parliament constitutionally authorized to enact criminal laws aimed at reducing the prevalence of activity that exploits inequalities and includes human trafficking and male violence? Or is Canada constitutionally required to have a commercial market for sex because some people with little or no choice must be allowed to choose it?