Bedford v Canada, 2010 ONSC 4264 (28 September 2010)
In September 2010, the Superior Court of Justice of Ontario (Canada) struck down ss 210, 212(1)(j) and 213(1)(c) of the Criminal Code, which criminalised certain aspects of sex work, on the basis that they violated the right to security of the person and, in the case of s 213(1)(c), the freedom of expression. According to the Court, the impugned provisions endangered the lives of sex workers and forced them to choose between their right to liberty and their right to security of the person, in violation of the Canadian Charter of Rights and Freedoms.
Canada decriminalised sex work in 1985, although certain aspects of sex work are still prohibited in the Criminal Code.
In Bedford v Canada, the applicants— one current and two former sex workers—sought a declaration that ss 210, 212(1)(j) and 213(1)(c) of the Criminal Code violated the right to liberty and security of the person in s 7 of the Canadian Charter. They also sought an order that s 213(1)(c) violated the freedom of expression in s 2(b) of the Charter. Section 210 of the Criminal Code made it a criminal offence to conduct sex work in an indoor location on a habitual and frequent basis. Section 212(1)(j) made it an offence to live on the avails of sex work, and s 213(1)(c) made it an offence to communicate in public for the purpose of engaging in sex work. The applicants argued that the impugned provisions endangered the lives of sex workers because they significantly increased the incidence of violence against them.
The respondent, the Attorney-General of Canada, argued that the Canadian Parliament had decided to criminalise what it deemed the most harmful and public emanations of sex work. The respondent argued that the applicant’s case was ill-founded, as there was no constitutional right to engage in sex work in Canada. The Attorney-General observed that the Charter ‘does not mandate Parliament to design a regime allowing the applicants to engage in prostitution with fewer hindrances’. In the event that the Superior Court found a violation of s 2(b) or 7 of the Charter, the Attorney-General claimed the violation was a reasonable limitation of rights pursuant to section 1 of the Charter.
Justice Himel held that the impugned provisions of the Criminal Code violated the right to liberty and security of the person in s 7 of the Canadian Charter and, in the case of section 213(1)(c), the freedom of expression in s 2(b). Having found that the violations could not be saved by s 1 of the Charter as a reasonable limit of rights, the Court declared the provisions invalid and struck them down.
Right to security of the person
Justice Himel found that the offences in ss 210, 212(1)(j) and 213(1)(c) of the Criminal Code deprived the applicants of the right to liberty and security of the person. Her Honour reasoned that the
three provisions prevent prostitutes from taking precautions, some extremely rudimentary, that can decrease the risk of violence towards them. Prostitutes are faced with deciding between their liberty and their security of the person. Thus, while it is ultimately the client who inflicts violence upon a prostitute, in my view the law plays a sufficient contributory role in preventing a prostitute from taking steps that could reduce the risk of such violence.
On this basis, her Honour declared the impugned provisions to be grossly disproportionate, and some to be arbitrary and overbroad, and therefore unsalvageable under the s 1 limitations clause.
Freedom of expression
Justice Himel found that the communication offence in s 213(1)(c) of the Criminal Code caused street sex workers to forgo proper screening of customers and compelled them to make hasty decisions that compromised their personal safety. As speech aimed at safeguarding one’s physical and psychological integrity is at the core of the freedom of expression, her Honour explained, the offence constituted a prima facie infringement of the freedom of expression.
In deciding whether or not the offence was a justifiable limitation on the freedom of expression, Himel J characterisd the legislative objective of the offence – namely combating social nuisance – as a ‘legitimate legislative purpose of pressing and substantial concern’. However, her Honour concluded that the offence’s impairment of the freedom was not proportionate to its objective. In so finding, her Honour observed:
in pursuing its legislative objective, the communication 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.
On this basis, Himel J declared s 213(1)(c) an unjustifiable limitation of rights pursuant to s 1 of the Canadian Charter.
Relevance to the Victorian Charter
Sex work is lawful in the state of Victoria although, like in Canada, certain aspects of sex work are still prohibited (for example, street-based sex work, living on the earnings of sex work). One of the primary aims of the Prostitution Control Act 1994 (Vic), the primary law governing sex work in Victoria, is to protect sex workers from violence and exploitation. Read together with the right to liberty and security of the person in s 21 and the freedom of expression in s 15 of the Charter of Human Rights and Responsibilities Act 2006 (Vic), there is a clear obligation to ensure that sex workers are not unduly exposed to violence or abuse. Even though Beford was not presented as an equality case, when one considers that women continue to comprise the overwhelming majority of sex workers, the right to equality in s 8 of the Charter should also be taken into account and interpreted as requiring relevant public authorities to take all appropriate measures to ensure the safety of sex workers.
The decision is at http://www.canlii.org/en/on/onsc/doc/2010/2010onsc4264/2010onsc4264.html
Simone Cusack is Strategic Policy Coordinator at the Public Interest Law Clearing House and co-author of Gender Stereotyping: Transnational Legal Perspectives (2010)