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Charter - s.7 'Liberty'. R. v. Kloubakov
In R. v. Kloubakov (SCC, 2025) the Supreme Court of Canada dismissed a criminal appeal, this from an Alberta CA ruling that allowed a Crown appeal against an Alberta QB decision in which "the trial judge held that these offences [SS: 'receiving a material benefit from sexual services and of procuring': CCC 286.2 and 286.3] prohibited the safety measures contemplated in Bedford [SS: Canada (Attorney General) v. Bedford (SCC, 2013)] and therefore infringed s. 7 of the Charter".
Here the court considers the 'liberty' element of Charter s.7:[161] We next consider the right to liberty.
[162] The appellants briefly intimate that sex workers’ economic liberty is engaged because the PCEPA restricts their ability to earn a living from sex work. They note, for example, that D. earned $600 per hour as a sex worker, while B.C. made $15,000 in a week as an erotic dancer, and both financed their law school educations through sex work.
[163] As a counterpoint, in forceful submissions, the intervener the Women’s Equality Coalition (consisting of the Vancouver Rape Relief Society, Concertation des luttes contre l’exploitation sexuelle, Aboriginal Women’s Action Network, Formerly Exploited Voices Now Educating, London Abused Women’s Centre and Strength in Sisterhood) rejected “the Appellants’ promotion of prostitution as a solution to women’s economic inequality” (I.F., at para. 1). This intervener “particularly reject[ed] the cruel logic that the overrepresentation of the most marginalized women, including Indigenous women, in the prostitution industry, is akin to an employment equity program, rather than a reflection of profound sexism and sexualized colonialism” (para. 1).
[164] This Court has been cautious when adjudicating claims for economic rights under s. 7 of the Charter. The Court has stated that a “purely . . . economic interest” is not protected by s. 7 of the Charter, which does not guarantee “[t]he ability to generate business revenue by one’s chosen means” (Siemens v. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 S.C.R. 6, at para. 46).
[165] Nor, as Dickson C.J. once wrote, does s. 7 of the Charter protect “an unconstrained right to transact business whenever one wishes” (R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 713, at p. 786).
[166] This Court has also rejected a claim that s. 7 protects the right to engage in the business or profession of one’s choice, ruling that provincial legislation providing that no person can practise as a public accountant in the province without being a member of the provincial institute of chartered accountants does not infringe s. 7 (Walker v. Prince Edward Island, 1995 CanLII 92 (SCC), [1995] 2 S.C.R. 407; see also Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123, at p. 1179, per Lamer J. (as he then was); Hogg and Wright, at § 47:10; Brun, Tremblay and Brouillet, at para. XII-6.19).
[167] At the same time, it has been suggested that “the autonomy protected by the s. 7 right to liberty encompasses only those matters that can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence” (Godbout v. Longueuil (City), 1997 CanLII 335 (SCC), [1997] 3 S.C.R. 844, at para. 66, per La Forest J.; see also Siemens, at para. 45).
[168] Whether s. 7 of the Charter protects a fundamental right to sell sexual services as an aspect of an individual’s right to liberty amounts to a new constitutional issue in this case. Such a new constitutional issue must be approached with great caution on appeal. As this Court recently reiterated, “appellate courts are generally reluctant to entertain new arguments when ‘they are deprived of the trial court’s perspective’” (R. v. Campbell, 2024 SCC 42, at para. 143, quoting R. v. J.F., 2022 SCC 17, [2022] 1 S.C.R. 330, at para. 40). This Court will hear new constitutional issues only in “rare cases” (Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at para. 37). As the Court has stated, “[w]hether to hear and decide a constitutional issue when it has not been properly raised in the courts below is a matter for the Court’s discretion, taking into account all of the circumstances, including the state of the record, fairness to all parties, the importance of having the issue resolved by this Court, its suitability for decision and the broader interests of the administration of justice” (Guindon, at para. 20; see also Downes, at para. 57). The test is stringent (Guindon, at paras. 22-23).
[169] In our respectful view, it would be most imprudent in this case to decide whether s. 7 of the Charter protects a fundamental right to sell sexual services as a part of an individual’s right to liberty. The courts below addressed the constitutionality of the impugned provisions only from the perspective of sex workers’ security of the person. Although a claim for a s. 7 right to sell sexual services would arguably have an economic dimension, some, like the appellants, contend that it also has a fundamentally personal dimension that justifies Charter protection. Since this complex and highly contentious issue was not considered or decided below, this Court does not have the benefit of the lower courts’ decisions on this point. We therefore decline to address this issue further in this appeal.
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