Bedford v Canada: Renewed Debate on the “World’s Oldest Profession”

On September 28, 2010, Justice Susan Himel of the Ontario Superior Court of Justice gave her verdict in the case of Bedford v Canada, 2010 ONSC 4264 [Bedford]. Justice Himel’s decision, which essentially has the effect of decriminalizing prostitution in Canada, drew pointed and fierce reaction. Commentators across various disciplines were quick to articulate their position on the emanations of the judgment, and even federal politicians waded into the controversy. For instance, Winnipeg Tory MP Joy Smith has stated that, with the Bedford ruling, the nation is taking on the role of a “pimp.”

Given the subject matter of the judgment, the discussion – and, in some cases, the hysteria – surrounding Bedford is understandable: Justice Himel finding that three Criminal Code, RSC, 1985, c C-46 [Criminal Code] provisions under scrutiny violated the Charter rights of the three applicants, and could not be upheld under s. 1, could have a massive impact on a notoriously controversial subject.

The three applicants – Terri Jean Bedford, Amy Lebovitch, and Valerie Scott – argued that the impugned provisions of the Criminal Code undermined their ability to work in safe conditions, out of fear that safeguards would leave them vulnerable to prosecution. They alleged that s. 213(1)(c) of the Criminal Code, which makes it illegal for anyone to communicate with the purpose of engaging in prostitution, violated their s. 2(b) Charter rights to freedom of expression. They also argued that ss. 210, 212(1)(f), and 213(1)(c) – the provisions on bawdy houses, living on the avails of a prostitute, and communication, respectively – violated their right to life, liberty and security under s. 7 of the Charter.

Conversely, the Attorney General of Canada argued that the prostitution laws should be upheld, noting that Parliament “has decided to criminalize the most harmful and public emanations of prostitution.” They presented that the applicants’ argument under s. 7 was based on the “false premise” that there is a constitutional right to engage in prostitution. They also maintained that prostitution is often linked to other harmful and criminal activities such as drug addiction and human trafficking.

At the court, the applicants’ arguments won the day. But the Bedford decision also taps into an international discussion about the appropriate way of policing sex work, and the merits of decriminalizing or legalizing prostitution. The case will undoubtedly work its way to the Supreme Court of Canada, where the s. 7 argument put forward by the applicants will be tested by the highest court of Canada. We here at await that day with bated breath. However, and intriguingly, the issue of criminalizing prostitution has already appeared before the court once before, twenty years ago.

In the Shadow of the Prostitution Reference

Justice Himel’s judgment in Bedford comes in at more than 130 pages. This remarkable show of verbosity seems at least justified. Upon a close reading, it is evident that the esteemed judge was well aware that the case would be subject to extensive appellate scrutiny. The polemical nature of the case also suggests that the careful and measured consideration of the evidentiary record included also makes sense. Moreover, given that there were “over 25,000 pages of evidence in 88 volumes, amassed over two and a half years” for the court’s consideration, a shorter judgment may have failed to provide a sufficiently nuanced articulation of the issues at stake.

However, the lengthy analysis in Justice Himel’s judgment also makes sense in context of the existing Supreme Court of Canada case on prositution mentioned above, the Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man), [1990] 1 SCR 1123 [Prostitution Reference]. The Prostitution Reference, put the bawdy house and communication offences before the Supreme Court of Canada, challenging the provisions on the same Charter grounds. The Court concluded that the communication offence represented a prima facie infingement of s. 2(b) of the Charter, but the majority upheld the provision as a reasonable limit under s. 1. In addition, upon undertaking a s. 7 analysis, the court found that the provision was an infringement of Canadians’ liberty, but one that fell within s. 7’s limitation clause of being an infringement “in accordance with the principles of fundamental justice.”

Bedford comes exactly 20 years after the Prostitution Reference, and the symbolism is not lost on Justice Himel and the parties involved. She undertakes an extensive analysis under the principle of stare decisis, weighing the arguments for and against reconsidering the issues in the Prostitution Reference before concluding that the claim should move forward. Justice Himel notes that, in addition to there being a significant change in the sociopolitical assumptions that underpinned the Reference, and greater precedents for the decriminalization of prostitution in other western countries, “the type of expression at issue in this case is different from that considered in the Prostitution Reference.” The applicants in Bedford took a position based on expression that would be used to screen clients for potentially violent behaviour, while the reference case was simply an adjudication of the provisions’ general constitutionality.

Justice Himel reached the correct conclusion on the application of stare decisis in this case. In addition to there being a different type of expression at stake, times have changed.

Over the last two decades, changes to prostitution laws across the world have allowed for greater consideration of potential alternatives to the prohibitive approach. The repeal of the brothel law in the Netherlands in 2000 is perhaps the most well-known example of moves towards decriminalizing prostitution.

Additionally, the issues presented in this case – namely, the ability of prostitutes to create safeguards and organize in a way that allows them to work more securely – have become particularly more acute in recent years. The disappearance of sex workers in British Columbia, which prompted the largest serial killer investigation in Canada and ended with the trial of Robert Pickton, is still fresh in the Canadian imagination. Even before the gruesome details of the Pickton case emerged, there were a number of horrific murders of sex workers. For example, in 1995, Regina sex worker Pamela Jean George was forced to perform oral sex on two men, who then brutally beat her to death.

Given the violence that continually confronts many sex workers, and the role these laws may play in exacerbating those considerations, Bedford was the appropriate opportunity for a reconsideration of the Criminal Code provisions.

The Parties’ Positions and the Court’s Conclusions

Although the judgment provides an incredibly detailed and nuanced account of the parties’ positions in this case, the applicants’ position can be summed up as follows. They argued that the three Criminal Code provisions essentially forced sex workers into compromising and unsafe situations out of fear of prosecution. For instance, they argued that “in-call” work – where the client comes to the sex worker – which is said to be far safer than the alternative, can fall under the purview of the communication offence in the Criminal Code. Similarly, enforcement of the communication offence becomes easier when there is extended communication between worker and client. This incentivizes hastier decision-making and less client scrutiny by the sex workers, another instance where trying to avoid prosecution increases the workers’ potential safety risks.

Much of the evidence provided by the respondent presented prostitution as an inherently harmful activity, with significant links to violence, organized crime, and the exploitation and trafficking of children and adults. The Crown presented sex workers as victims, people who turned to prostitution as a career option due to poverty, homelessness or addiction. The evidence put forward by the responded also argued “distinctions between indoor and outdoor prostitution are not meaningful.” In addition to pointing to the important moral objectives that are surveyed by the current laws, the respondent also submitted expert evidence of international experiences in decriminalization to show that it may not be the best approach for the social management of prostitution.

(i) Section 7 Analysis

Justice Himel easily concludes that the s. 7 liberty interest of the applicants is engaged, given the availability of imprisonment for all the impugned provisions.

In considering the security interest, the applicants submit that the provisions “materially contribute” to the harm faced by prostitutes, while the respondent relied on Blencoe v British Columbia (Human Rights Commission), [2000] 2 SCR 307, to argue that there needs to be a direct causal connection between the harm alleged and the state action.

In rejecting the respondent’s demand for a causal connection, Justice Himel relies on Suresh v Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3, and Canada (Prime Minister) v Khadr, [2010] 1 SCR 44, which do not demand that the government’s action be a “necessary precondition” of the harm in question, but rather that the “government need only contribute…in a way the Court finds to be sufficient.” Although a connection “sufficient” for the Court is obviously an undesirably vague standard that allows for almost unlimited judicial discretion, Justice Himel’s reading of the law certainly seems on point. After undertaking a rigorous analysis of the expert evidence put forward by both parties, Justice Himel reaches the conclusion that the applicants have in fact proven the burden described above on a balance of probabilities.

The court then considers whether the deprivations are in accordance with the principles of fundamental justice, on four grounds: arbitrariness, overbreadth, grossly disproportionate of the harmful effects, and the rule of law.

The analysis of principles of fundamental justice is punctuated by a short analysis under s. 1, where she concludes:

In the case at bar, where I have found all the impugned provisions to be grossly disproportionate, and some to be arbitrary and overbroad, it is not possible to say that the provisions are proportionate or minimally impair the applicants’ right to liberty and security of the person. I, therefore, find that none of the impugned provisions are saved by s. 1.

(It should be noted that the s. 1 analysis for s. 7 in Bedford is disappointingly short. This may be because s. 7 violations are only rarely saved by s. 1, and much of the analysis tends to be duplicated and regurgitated. Nevertheless, since the case is likely to be appealed to the highest court, a fuller s. 1 analysis – although it may have only served as a formality – would have been preferred.)

(ii) Section 2(b) Analysis

Justice Himel then considers the freedom of expression argument put forward by the applicant under s. 2(b) of the Charter. She notes that the Supreme Court of Canada found the law to be a prima facie violation of the Charter in the Prostitution Reference, and immediately proceeds with a s. 1 analysis. Her conclusion is that:

in pursuing its legislative objective, the communicating provision so severely trenches upon the rights of prostitutes that its pressing and substantial purpose is outweighed by the resulting infringement of rights. This rights infringement is even more severe given the evidence demonstrating the law’s general ineffectiveness in achieving its purpose. By increasing the risk of harm to street prostitutes, the communicating law is simply too high a price to pay for the alleviation of social nuisance.

Looking Forward

At the appellate level, it will be interesting to see how the courts view Justice Himel’s interpretation of Suresh and Khadr, and her conclusion that the applicant need only show that there is a “sufficient connection” between the impugned provisions and the deprivation of security. Although the court grounded its reasoning in multiple Supreme Court of Canada cases, higher courts may feel the utilization of a standard set in case involving alleged terrorism and repatriation from a foreign military prison is inappropriate in a prostitution case, and sets the bar too low for the security interest to be engaged.

Another interesting element to watch for in this case is the reading of the evidentiary record. As Justice Himel herself notes in the opening words of the judgment, “the only consensus that exists [on prostitution] is that there is no consensus on the issue.” The evidence tendered is indicative of this ideological rift. For instance, the applicants submitted affidavits from eight current and former prostitutes, who provided corroborative voices for the position that prostitution in indoor venues is generally safer than sex work on the street. In contrast, the respondent provided nine affidavits, also from current and former prostitutes, who gave “detailed accounts of horrific violence in indoor locations and on the street.” As Justice Himel went on to note, although the evidence tendered by sex workers provided useful background information, “it is clear there is no one person who can be said to be representative of prostitutes in Canada.”

A similar ambiguity can also be found in the expert evidence submitted by both parties. There is no clear consensus on the appropriate policy on prostitution, and Justice Himel raises several concerns about the polemical nature of some of the evidence tendered. For instance, at one point she notes that she was “struck by the fact that many of those proffered as experts to provide international evidence to this court had entered the realm of advocacy and had given evidence in a manner that was designed to persuade rather than assist the court.”

Given the deeply political nature of the political debate, the evidentiary record could frankly be read either way, and the appellate courts have an incredibly arduous task ahead of them.

Another interesting thing to watch as this case moves through the courts is the broader legislative debate that will take place around the issue. Politicians have already started voicing their opinions on the issue, and a public debate is starting to take shape. Although this may seem trivial now, given that appellate review is still pending, it is an equally important consideration.

Even if Bedford manages to get over the hurdles presented by appellate review, a positive judgment would essentially create a legislative vacuum. Although the Supreme Court of Canada may hypothetically be able to offer some direction on the appropriate course for legislation, those decisions will eventually fall to Parliament.

At that stage, the debate stirred by Bedford could go several ways. Parliament could use this an opportunity to reconsider the appropriate legislative approach to sex work, and take the interests of sex workers into account if they decide to legislate on this issue. Conversely, law making bodies could introduce measures that – even though they do not explicitly prohibit prostitution – have the effect of marginalizing and ghettoizing sex workers.

As an example, many international jurisdictions have created licensing provisions for prostitutes. If the cost of entry for licensing is too high – a distinct possibility if the aim is to discourage entry into sex work – the provisions may have the effect of creating a new form of “illegal” prostitution. If that is where we end up, all of this legal wrangling will have been for naught.

Alternatively, one of the questions I was left with after reading Bedford was whether the judgment would preclude Parliament from amending the Criminal Code with a blanket provision for prostitution. As I see it, the central issue in the case is this: prostitution, generally speaking is not illegal. In other words, there is no Criminal Code provision that explicitly makes it illegal for one to be a sex worker. The provisions under review, however, essentially control the “emanations” of prostitution.

As Justice Himel notes, “prostitution laws have a long history in Canada, pre-dating Confederation, and have developed in a rather ad hoc manner, reflecting differing concerns of legislators over the years.” What we are left with is a patchwork of laws that are not particularly effective. Essentially, sex workers are left with the choice of conducting their business “legally” and putting their safety at risk, or acting in a way that makes them vulnerable to prosecution under the three articulated offences. It is the way the legislative scheme is structured that gives rise to the challenge in Bedford.

In exercising their power to make and shape the criminal law, could not the federal Parliament introduce laws that take a harsher and more explicit stance on the issue of prostitution? That is the question I am taking away from Bedford. On an issue as contentious as sex worker rights, I doubt that lawmakers will be content with a legislative vacuum.

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