Bedford v Canada 2012: Challenging Prostitution Laws One Battle at a Time

On March 26, 2012, the Ontario Court of Appeal in Canada (Attorney General) v Bedford, 2012 ONCA 186 issued a long awaited ruling regarding prostitution laws. Although the decision undercut the overwhelming success the respondents received at the trial level, it nonetheless served a major blow to the Attorney General. The Court of Appeal affirmed that two of the three impugned provisions were unconstitutional. This case serves as a stepping-stone towards the final ruling on prostitution laws in Canada.

Earlier, published a two-part series on the Court of Appeal’s decision (here and here), highlighting the decision within a larger context.

The Legal Issue

Prostitution itself is not illegal in Canada. At issue in this decision is the constitutionality of three provisions in the Criminal Code, RSC 1985, c C-46 concerning prostitution: ss. 210, 212(1)(j) and 213(1)(c). Section 210 prohibits the operation of common bawdy-houses. This prevents prostitutes from offering their services out of fixed indoor locations, such as brothels or their own homes. Section 212(1)(j) prohibits living on the avails of prostitution. This bars anyone from profiting from another person’s sex work. The last provision at issue is section 213(1)(c), which prohibits communicating for the purpose of prostitution in public. Essentially, section 213(1)(c) inhibits prostitutes from offering their services in public. In this decision, these provisions are read against s.7 of the Charter. Section 7 enshrines our “right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Application of the Superior Court’s Decision

In 2010, Justice Himel of the Superior Court of Justice held that these provisions are unconstitutional and must be struck down. She found that none of the three provisions accord with the principles of fundamental justice set out in s.7 of the Charter. (For more on this, please go here.) She explained that the challenged laws intensify the harm and danger that sex workers already face. These provisions prevent sex workers from taking steps that would enhance their safety forcing to choose between jail time and taking precautionary measures (such as working indoors, alone or with other prostitutes, paying security staff and screening customers on the street to assess the risk of violence).

The Ontario Court of Appeal ultimately agreed with Justice Himel regarding the prohibitions on common bawdy-houses and living on the avails, ruling that they were unconstitutional. The appellate court, however, differed in choosing remedies. The Court agreed that s. 210 is unconstitutional and must be struck down, but it suspended the declaration of invalidity for twelve months to give Parliament an opportunity to redraft a Chartercompliant provision. As for the living on the avails provision, the Court of Appeal found that the prohibition infringes s.7 of the Charter to the extent that it criminalizes non-exploitative commercial relationships. Moreover, the majority of the Court disagreed with the trial court’s application of the communication provision. The majority found that it did not find the ban on communicating in public for the purpose of prostitution to be unconstitutional.

ONCA’s Reasoning

Role of the Courts

The majority of justices on the Court of Appeal framed their decision around the constitutionality of the provisions. At paragraph nine, the Court wrote:

Prostitution is a controversial topic, one that provokes heated and heartfelt debate about morality, equality, personal autonomy and public safety. It is not the court’s role to engage in that debate. Our role is to decide whether or not the challenged laws accord with the Constitution, which is the supreme law of the land.

It is in this framing that the Court distinguished between the role of the judiciary and that of the legislature. In this opinion, the Ontario Court of Appeal distanced itself from substantive arguments regarding the validity of sex work in Canada, choosing to abstain from this moral and ethical debate. Rather, the Court limited its decision to that of procedure. It first explained that the provisions laid out by the legislature infringe on constitutionally-protected rights, namely the right to life, liberty and security of the person. Once it established that the provisions are unconstitutional, it deferred to Parliament, asking Parliament to introduce new legislation that complies with the requirements of the Charter. In particular, the Court of Appeal asked the legislature to enhance the safety measures for sex workers. In the same token, it left the possibility of banning prostitute altogether open – so long as it is done in a way that is consistent with the Constitution.

Furthermore, the Court outlines several errors that the lower court made. These errors arise from the trial judge’s application of stare decisis; Justice Himel claimed that the Prostitution Reference, [1990] 1 SCR 1123 was prima facie binding on this court. There was no suggestion that it had been overruled, and therefore, the majority held that the reference was fully binding on the application judge. The Court of Appeal further found that the trial level court has a much more limited role in reconsidering Supreme Court precedents. The lower court is limited to allowing parties to gather and present evidence and, at times, make credibility findings and findings of fact. This will create the necessary record to help the Supreme Court decide whether it will reconsider its prior decision. While the evidence and legislative frameworks will continue to evolve, the evolution is insufficient to trigger reconsideration of a Supreme Court of Canada decision by the lower courts.

Bawdy, Avails and Communication – Oh My!

The Court of Appeal upheld Justice Himel’s decision in deciding that all three impugned provisions individually and in tandem operated to limit the security of the person, as per s. 7 of the Charter. The differing analysis fell to whether such infringements violate principles of fundamental justice. The higher court found that neither the criminalization of common bawdy-houses nor the avails provisions could be justified as being consistent with the principles of fundamental justice. They were therefore deemed invalid. The common bawdy-house will be struck down in twelve months provided that Parliament does not enact Charter-compliant provision in the interim.

In addition, the Court of Appeal looked to the purpose of the provision concerning living on the avails of prostitution. In R v Downey, [1992] 2 SCR 10, the Supreme Court at p. 37 decided that, “it is obvious that the section is attempting to deal with a cruel and pervasive social evil. The pimp personifies abusive and exploitative malevolence.” The avails provision was set out to prohibit exploitative relationships. The Court’s choice to read in “in circumstances of exploitation” into the avails provision was therefore appropriate.

The matter of communication became quite contentious, marking a significant departure from the trial judge’s decision as well as a split among the judges on the Court of Appeal. The three-person majority overturned the trial judge’s decision to find that the provision was indeed constitutional. Despite the majority’s recognition that the communication provision does indeed contribute to some degree of harm, it was satisfied that the weight of the legislative objective balanced against the weight of the impact. In this way it does not creep into the range of gross disproportionality.

In contrast, Justice MacPherson, writing the partial dissent for himself and Justice Cronk, agreed with the majority on all elements of the decision but that of s.213(1)(c) – the communication provision. In a rather compelling dissent, he outlined several errors the majority made in reaching their finding on that provision. Most convincingly, he noted the fact that s.213(1)(c) was added in 1985 to the existing bawdy-house and living on the avails provisions, which created an “almost perfect storm of danger for prostitutes.” The initial two provisions drove prostitutes to the streets and then denied them the defence of evaluation of prospective clients through communication; sex workers on the street were the most vulnerable because they were so exposed. Sex workers on the street often could not go to bawdy-houses because of mental health issues or drug dependencies. These are the most vulnerable groups, yet they cannot evaluate prospective patrons. As Justice MacPherson wrote, “The world in which street prostitutes actually operate is a world of dark streets and barren, isolated, silent places. It is a dangerous world, with always the risk of violence and even death” (para 372).

A Narrow Victory or a Step in the Right Direction

This case marked a win for sex workers, in that the Court of Appeal recognized that those who engage in the sex trade are entitled to the same constitutional protection as those who engage in other dangerous but legal enterprises. Prostitution is legal and, therefore, those who engage in it are entitled to take precautionary measures to ensure their safety. This win, however, was significantly narrower the earlier win at the lower court. The prohibition on communicating for the purpose of prostitution would still pose as a major safety concern for street workers. Additionally, the Court’s remedies, namely the time allotted to Parliament to fix the prostitution provisions, may still put the lives of prostitutes at risk.

With such a strong dissent on the communication provision and unanimity with the other two provisions, this ruling is a step in achieving finality in a modern Prostitution Reference.The Constitution is a living tree; it is a very different creature as it was 22 years ago when the Prostitution Reference was decided. Given the gravity of the Court’s remedies, it was no surprise when the crown appealed, and so taking a page from ONCA’s, the SCC will have its opportunity to revisit its 22 year old decision.

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