December 20th, 2013
In a surprising turn of events, the Supreme Court of Canada (SCC) released its judgment in Canada (Attorney General) v. Bedford, 2013 SCC 72 [Bedford] as its final case before the holiday break, effectively striking down all of the current laws pertaining to autonomous prostitution. Writing for a unanimous court, Chief Justice McLachlin held that the ss. 210(1) (keeping or being in a bawdy-house), 212(1)(j) (living on the avails of prostitution), and 213(1)(c) (communicating for the purpose of prostitution) provisions of the Criminal Code were all in violation of s. 7 Charter rights and could not be saved under s. 1.
STARE DECISIS ONLY AN ISSUE IN PART
The issue of stare decisis has been previously discussed here with respect to the Bedford case, but the SCC only took issue with revisiting the s. 2(b) Charter challenge, allowing the appeal to proceed primarily on the basis of shifting s. 7 Charter law. Since the principles of fundamental justice have steadily developed over the past twenty years, particularly the principles of arbitrariness, overbreadth, and gross disproportionality which were raised in this case, the application judge did not err in hearing this reference. Further:
“…the common law principle of stare decisis is subordinate to the Constitution and cannot require a court to uphold a law which is unconstitutional… lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one to reach. In my view, as discussed above, this threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence” [paras 43-44].
STANDARD OF REVIEW
Importantly, this case also affirmed the standard for appellate review and the level of deference to trial or application judges with respect to social and legislative facts (overruling the Court of Appeal):
“I am of the view that a no-deference standard of appellate review for social and legislative facts should be rejected. The standard of review for findings of fact — whether adjudicative, social, or legislative — remains palpable and overriding error” [para 56].
THE S. 7 CHALLENGE SECURES IT: GROSS DISPROPORTIONALITY CLARIFIED
In the decision, the SCC only dealt with constitutionality of the impugned provisions under s. 7 of the Charter, and easily found s. 7 to be engaged with respect to security of the person:
“The prohibitions at issue do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks” [para 60].
With respect to the s. 210 bawdy-house provision, the SCC upheld the lower court decision that it was maligned with the principles of fundamental justice:
“The harms identified by the courts below are grossly disproportionate to the deterrence of community disruption that is the object of the law. Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes. A law that prevents street prostitutes from resorting to a safe haven such as Grandma’s House while a suspected serial killer prowls the streets, is a law that has lost sight of its purpose” [para 136].
Similarly, the s. 212(1)(j) living on the avails of prositution provision was found to be overbroad, and as such the issue of whether it was grossly disproportionate to its object of protecting prostitutes from exploitative relationships was not addressed (paras 139-145).
The s. 213(1)(c) communicating in public for the purposes of prostitution provision, which was perhaps the most contentious of the three, was found to be grossly disproportionate, as well. It appears as though the SCC has taken this case as an opportunity to reshape or clarify the principle of gross disproportionality, with particular criticism of the appellate court:
“…the Court of Appeal wrongly attributed errors in reasoning to the application judge and made a number of errors in considering gross disproportionality. I would restore the application judge’s conclusion that s.213(1)(c) is grossly disproportionate. The provision’s negative impact on the safety and lives of street prostitutes is a grossly disproportionate response to the possibility of nuisance caused by street prostitution” [para 159].
The SCC took a particularly strong stance with respect to this provision, emphasizing the importance of client screening, which was effectively prohibited by s. 213(1)(c):
“If screening could have prevented one woman from jumping into Robert Pickton’s car, the severity of the harmful effects is established” [para 158].
None of the impugned laws were saved by s. 1 of the Charter (paras 161-163).
The ruling by the SCC striking down the laws has been suspended for one year, meaning that Parliament will have until this time next year to decide how (or if) to respond. It may choose to leave the laws as they stand, or to reshape the legislative regime to outlaw prostitutes or third-party johns or pimps directly. Whether this type of legislation would stand up to constitutional scrutiny remains to be seen. It is also interesting to note that 5 of the 9 judges deciding this case were appointed by the Harper government, which may lay to rest any claims of political bias in the SCC.
More analysis to follow.[filed: Appeal Watch Charter Constitutional Law Criminal Code Criminal Law Human Rights]