OTTAWA — The Supreme Court of Canada has rejected a constitutional challenge of the criminal law on sex work, upholding the convictions of two men who argued its provisions are overly broad.
The case tested key elements of the Protection of Communities and Exploited Persons Act, which took effect in late 2014.
The Conservative government of Stephen Harper brought in the legislation in response to a landmark Supreme Court ruling known as the Bedford decision.
The law was intended to protect sex workers from third parties who commercialize the sale of sexual services and allow them to shield themselves from the dangers posed by some clients.
Mikhail Kloubakov and Hicham Moustaine were convicted in Alberta of offences under the new law as a result of their employment in 2018 as paid drivers for an escort business, a commercial sex operation.
The men successfully contested the provisions in question on the constitutional grounds that they deprive sex workers of the right to security.
The first provision criminalizes receiving money or some other material benefit from the sex work of others in exploitative circumstances. The second provision prohibits procuring someone to offer sexual services for sale.
An Alberta judge found the provisions were too broad because they apply to people receiving a material benefit from sex work who may otherwise be supporting the safety of sex workers.
The Crown appealed, arguing the judge mistakenly concluded that the provisions violate the Charter of Rights and Freedoms.
The Alberta Court of Appeal allowed the appeal, entered convictions against Kloubakov and Moustaine and referred the matter for sentencing.
In its unanimous ruling Thursday, the Supreme Court said the material benefit and procuring offences at the heart of the case permit sex workers to take the safety measures contemplated in the Bedford decision.
The court said that while the material benefit offence prohibits someone from receiving a financial or other benefit while knowing it flows from the purchase of sexual services from others, the scope is narrowed by exceptions that allow sex workers to protect themselves by hiring staff.
A third party who provides security to someone who sells sexual services could do so lawfully, the court said, as long as they do not encourage the person to sell sex and provided the benefit they receive is proportionate to the value of the services they provide.
The top court noted the legislated exceptions do not apply in circumstances that Parliament regards as exploitative, including when a material benefit is obtained through a commercial enterprise.
The court said judges will determine on a case-by-case basis whether any given enterprise is a commercial enterprise engaged in the commodification of sexual activity.
However, certain conduct does not fall under scope of a commercial enterprise, the court said. That includes:
— an individual who sells their own sexual services, whether independently or co-operatively with others;
— a third party, such as a driver, receptionist, bodyguard, or manager, who provides security services to someone who sells their own sexual services under a co-operative arrangement;
— sex workers who operate indoors from a not-for-profit safe house;
— and an individual or entity that merely rents premises to an independent sex worker and does not participate in turning sexual activity into a commodity.
This report by The Canadian Press was first published July 24, 2025.
Jim Bronskill, The Canadian Press
