From Bedford to NS Revisiting the Constitutionality of Commercial Sex Laws in Canada with Dr. Debra Haak

Following the 2013 decision of the Supreme Court in Bedford declaring three criminal laws then applicable to adult prostitution unconstitutional, Parliament enacted the Protection of Communities and Exploited Persons Act making prostitution itself unlawful for the first time in Canada. At the time, more than 220 legal experts wrote a letter to the Prime Minister expressing the opinion that the new criminal laws were likely unconstitutional. Since then, eight Canadian courts have considered the constitutionality of some of the new commodification offences enacted by PCEPA. Most recently, in February of 2022 in R v NS, the Ontario Court of Appeal upheld the constitutionality of the new material benefit, procuring, and advertising offences. What changed between Bedford and NS? Will the offences enacted by PCEPA withstand pending constitutional challenges? More broadly, do we rely too heavily on the Charter as the arbiter of the right policy choice in areas of highly contested social and public policy?

​Debra Haak is an Assistant Professor in the Faculty of Law at Queen’s University, where she teaches Criminal Law, Constitutional Law, and Insolvency Restructuring. She holds an Hons BA in Political Science from Western University, an LLB from the University of New Brunswick, an MPhil in International Relations from the University of St Andrews, Scotland, and a PhD in Law from Queen’s University. Until 2016, Dr Haak was a partner at Gowling WLG in Toronto where she practiced commercial and insolvency litigation.

​Dr Haak’s research is motivated by a concern over how law and policy contend with the different and at times divergent interests of individuals and groups in a diverse society. Drawing on 20 years of practice experience, she approaches her research through the conceptual and analytical lens of interest focussed legal problem-solving. Her PhD research project, The Wicked Problem of Prostitution and Sex Work Policy in Canada, considered the intractable debate over the role of law in the commercial exchange of sex in Canada as a conflict between and among stakeholders prioritizing different and divergent interests. Dr Haak’s research has been published in the UBC Law Review, Windsor Review of Legal and Social Issues, Queen’s Law Journal, The Globe & Mail, National Post, Ottawa Citizen, and The Conversation. She has been interviewed about the constitutionality of Canada’s criminal prostitution laws by CBC, CTV, and local news outlets in Ontario. Her scholarship was recently cited by the Ontario Court of Justice. Dr Haak has an article forthcoming in the Alberta Law Review critically examining the use of reasonable hypotheticals in constitutional challenges to criminal offences under section 7 of the Charter.