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Since the beginning of 2020, the new prostitution laws under section 286 of the Criminal Code of Canada have been on constitutionally shaky grounds in Ontario. On February 21, 2020, in the case of R. v. Anwar, 2020 ONCJ 103, Justice McKay found almost all the sections of 286 unconstitutional and not saved under section 1 of the Charter. The accused in that case were not charged under section 286.1 so they did not have standing to challenge that section at the time.
Additionally, prior to the Anwar decision, the Ontario Court of Appeal made an interesting comment about overbreadth of the new legislation at paragraph 84 in the decision of R. v. Gallone, 2019 ONCA 663.
“I agree with the respondent that the Crown’s interpretation of ss. 286.4 and 286.5 criminalizes a very broad range of conduct in circumstances where there may be no exploitative relationship between the seller and the person assisting him or her with advertising. However, the respondent did not challenge the constitutionality of the prohibition on advertising.”
In the most recent decision regarding the “procuring” or coercive offence under section 286.3, the Ontario Court of Appeal offered more guidance on how to interpret the level of involvement between the accused and the person offering sexual services.
In R. v. Ochrym, 2021 ONCA 48, the main analysis was on the importance of the actual relationship between the involved parties. The accused had provided transportation and assisted with the rental of a hotel room. He also responded to requests for food or other supplies while the young woman was staying at the hotel.
At the end of the trial, the accused was found to have not “influenced” the complainant in her decisions to engage in sexual services. One factor was that, upon being discovered by her mother, the complainant was able to leave the hotel room when she wanted to, without any threats or interference from the accused. In essence, the complainant was “free to leave” any time she wanted.
The quorum in Ochrym consisted of two of the same judges from the decision in Gallone; Justices Hoy and Paciocco. The decision confirmed that “control, direction or influence” should be treated disjunctively but, at paragraph 29, the Court rejected the Crown’s submission that simply providing transportation and assistance was equivalent to exercising control, direction or influence over the sale of sexual services.
The Ochrym decision found that the liability of an accused cannot be assessed “without regard to the nature of the relationship between the appellant and the complainant, and the impact of the appellant’s conduct on the complainant’s state of mind.”
Ochrym clarified that paragraph 47 of Gallone cannot be read in isolation to determine the amount of influence an accused had in the circumstances. The question should be focused on whether or not “a person, by virtue of her or his relationship with the complainant, has some power – whether physical, psychological, moral or otherwise – over the complainant and his or her movements.”
This question is of importance when looking at the objectives and construction of the new legislation. In Ochrym, the Court of Appeal points out that the immunity clause under section 286.5 prevents a sex worker from being prosecuted in connection to his or her own sexual services but does not make such services legal. The wording should be of import in determining how to meet the goals of the legislation.
As laid out in this decision, the goals of the legislation are to abolish prostitution while assisting those who choose to engage in prostitution so that they can safely exit the trade. While the actions of a sex trade worker are not “legal” per se, the legislation seeks to minimize the negative impact of the law on the safety of sex trade workers themselves.
Overbreadth in the interpretation or application of these laws may capture a number of incidental people who are not exerting any control over the sex worker and are only involved peripherally by offering assistance.
A focus on the relationship between the accused and the complainant would help differentiate between people who are exerting control or power over a sex trade worker from those who are assisting with his or her safety and well-being.
In paragraph 36 of Ochrym, the Court explains: “there is a difference between encouraging someone to sell sexual services for consideration and exercising influence over the movements of a person who offers or provides sexual services for consideration.”
This decision still leaves many pathways to conviction under section 286.3 in stating “the meaning Gallone ascribes to ‘exercise of control, direction or influence’ covers a wide range of intentional conduct and is consistent with the purpose of s. 286.3, as articulated in Joseph.” The decision in R. v. Joseph, 2020 ONCA 733 also determined that to harbour “includes the simple provision of shelter, whether secretly or not.”
As it stands, the constitutional ruling in the Anwar decision is not binding and there has not yet been a successful constitutional challenge to the new legislation in the higher courts. Based on the current decisions, an interpretation that any kind assistance offered to a sex worker is equivalent to “encouragement” or procurement is not likely to survive appellate review.
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