Acacia’s Milousis aids major Supreme Court win

Canadian court watchers were transfixed last week by the controversial acquittal of five hockey players charged with sexual assault, and by the multi-year sentences facing Covid Convoy organizers Tamara Lich and Chris Barber.

Acacia lawyer Lia Milousis, meanwhile, was savouring an almost unnoticed Supreme Court victory in a case with major implications for federal law governing prostitution – and for Parliament’s prerogative to legislate in areas of fraught social policy.

In a unanimous 9-0 decision, the SCOC upheld sections of the Protection of Communities of Exploited Persons Act (Bill 36) that criminalize both the receiving of material benefits from so-called sex work and engaging in the procurement of individuals for prostitution.

Appellants Mikhail Kloubakov and Hicham Moustaine argued that the two provisions violated Charter guarantees of security of the person by denying prostitutes the means to conduct their work safely and securely.

Critically, Milousis says, Canada’s highest court rejected that challenge in deference to Parliament’s intention to treat prostitution itself as inherently exploitative of human dignity.

Particularly satisfying, she notes, was that the ruling drew in part on language that Milousis, acting for the Evangelical Fellowship of Canada (EFC), and her colleague John Sikkema, acting for the Association for Reformed Political Action Canada (ARPA), presented before the Court.

“The Court notes that Parliament views profiting from the commodification of another human being’s sexual activity as inherently involving exploitation,” Milousis says. “It implicitly draws very heavily on the EFC’s and ARPA’s submissions that (commodification and exploitation) doesn’t turn on whether a commercial enterprise is making excessive profits. It doesn’t require a specific act of exploitation, such as violence or coercion or lack of consent.

Lia Milousis

“We said Parliament cannot be expected to enact a policy that attempts to separate prostitution itself from prostitution-related harms because, in Parliament’s view, those are the same.”

The Harper-era legislation being contested before the Supreme Court was passed to adapt for a Canadian context the “Nordic model” of sex work governance. For the first time in Canadian legal history, it made sex-for-sale a criminal act but placed culpability on purchasers and profiteers while exempting practitioners.

The 2014 law filled a legal vacuum left by the Supreme Court’s Bedford ruling that legislation on the books at the time violated the Charter because while selling sex per se was not illegal, measures prostitutes might take to protect their physical safety were prohibited by the Criminal Code.

Under Bill 36, prostitutes can hire security, operate from places they deem safe, and take other reasonable steps to protect themselves. Those who provide such services are operating within the law – unless they are doing so for commercial purposes inherently tied to prostitution itself.

Milousis cites the examples of strip clubs or massage parlours, which fundamentally operate as fronts for inducing people into prostitution and compelling them to sell sexual acts as a service. A related instance, she agrees, would involve a landlord who rents out apartments explicitly to create what amounts to a brothel, thus gaining a material benefit from prostitution and also, perhaps, procuring.

“The Court specifically calls out strip clubs and massage parlours, the kinds of places we know are often fronts for prostitution and human trafficking,” she says. “It says very clearly that such enterprises might masquerade as a strip club or massage parlour but actually exist for the purpose of facilitating the purchase of sexual services and therefore institutionalize commercial sex work that commodifies individuals.”

Milousis is clear that the legislation is not entirely home and dry just yet. A case is working its way through the Ontario courts that raises questions about whether the whole Act violates the Charter by causally increasing the risk of death for sex workers. Paradoxically, she says, the Canadian Alliance for Sex Work Law Reform case could hinge on “right to life” arguments that would, to say the least, galvanize pro-lifers and social conservatives across Canada.

But in terms of the two sections challenged in the Kloubakov case, and especially in light of the unanimous decision delivered by the Court, the legislation’s prohibitions on obtaining material benefits and procuring can be safely considered policy matters on which the Court has properly deferred to Parliament, she emphasizes.

“In upholding the provisions, the Court has made it clear that they are legitimate purposes (of the criminal law). It was fully within Parliament’s jurisdiction to decide that, based on the evidence before it, prostitution is inherently exploitative,” she says. “It puts an end to arguments that those two provisions are unconstitutional on the basis of security of the person.”

Whether that signals a broader change of approach for a high court that has actively blurred the lines between fact-based legal decision-making and Parliament’s prerogative to act democratically in the interests of Canadian citizens remains to be seen, Milousis says.

“The Supreme Court understood that it needed to bring clarity, and it needed to speak coherently. What it didn’t need to do was comment on whether it’s good or bad, and it didn’t. It has, through this decision, made clear it’s not interested in engaging in a debate about whether this is or is not a legitimate public policy decision for Parliament to take. It deferred to Parliament, which I would say and the EFC and ARPA argued, is the correct approach.”

An approach so far largely unnoticed by Canadian court watchers – but justifying a certain sense of savouring all the same.

If you are interested in watching Lia’s submissions on this case, here is the link. Lia’s portion starts at 3:49:27. ​https://www.scc-csc.ca/cases-dossiers/search-recherche/41017/​​

​Peter Stockland leads the Strategic Communications division at The Acacia Group and is the author of The Acacia Arc newsletter. He has decades of experience as a Canadian journalist, including as editor-in-chief of the Montreal Gazette, editorial page editor of the Calgary Herald, vice-president of English language magazines for Reader’s Digest Canada, and Publisher of the Catholic Register. Peter also enjoys writing short-stories and other fiction, which have been featured in numerous publications across Canada.