Bedford 2.0: Challenging the Constitutionality of Canada’s “New” Sex Work Laws

Abstract

Following the 2013 landmark Bedford decision, the Conservative government, under Harper, enacted the Protection of Communities and Exploited Persons Act in 2014. Many scholars claim that the PCEPA refashioned the former sex work laws struck down in Bedford and reproduce the same harms. In this paper, I consider a hypothetical s.7 Charter challenge to the PCEPA, specifically the purchasing and material benefit offences. My data includes the social science data cited in Bedford and Anwar. These factual findings speak to the impact of sex work laws on sex workers and the judicial rulings serve as a basis for my legal analysis. Furthermore, I relied on several social science papers, which discuss the effectiveness of the Nordic Model and the impact of the PCEPA on sex workers. My paper ultimately finds that both the purchasing offence and material benefit offence violate the right to security of the person and this infringement cannot be saved under s.1 of the Charter. In regard to the purchasing offence, the law is arbitrary to its objective as there is no substantial evidence illustrating the success of criminalizing buyers (the Nordic model). As for the material benefit offence, the law is overbroad as it captures non-exploitative relationships between third parties and sex workers. When comparing the judgement in Bedford to my research, the same issues associated with the laws struck down in Bedford are again brought up with the PCEPA. In both, the laws prevent sex workers from protecting themselves or hiring third parties to protect them. As such, the claim that many scholars make, which is that the PCEPA refashioned the former sex work laws struck down in Bedford, is proving to be true.