Canada (Attorney General) v Bedford, 2012 ONCA 186 (26 March 2012) Summary
The Ontario Court of Appeal considered the legality of certain restrictions on prostitution – a lawful activity in Canada. It held that provisions which prevent prostitutes from taking measures to secure their safety, and substantially increase their risk of harm, contravene the right to liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms.
The applicants in the case were three female prostitutes. They sought a declaration that three provisions of the Canadian Criminal Code interfered with their right to liberty and security of the person under section 7 of the Canadian Charter.
In Canada, prostitution is technically legal. However, the Criminal Code imposes significant restrictions on the manner and location in which it may occur. It makes it virtually impossible to legally, and – as the Court found – safely, conduct prostitution. The challenged provisions were:
- The prohibition on the operation of so-called “bawdy-houses”. This prevents prostitutes from offering their services out of fixed indoor locations such as brothels or private homes (“prohibition on brothels”).
- The prohibition on anyone “living on the avails of another’s prostitution”. This prevents someone, such as a pimp, profiting from another’s prostitution, and prevents a prostitute from employing someone in connection with their work, such as a bodyguard or receptionist (“prohibition on living on the avails”).
- The prohibition on communicating regarding the sale of sex in public. This prevents prostitution from occurring on the street (“prohibition on communicating”).
Section 7 of the Canadian Charter provides that: “Everyone has the 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.”
Section 1 of the Canadian Charter provides that: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
At trial, the judge held that all three provisions of the Criminal Code deprived the applicants’ rights to liberty and to security, and were unconstitutional. The judge reasoned that the laws “exacerbate the harm that prostitutes already face by preventing them from taking steps that could enhance their safety”, such as working indoors, alone or with other prostitutes, paying security staff and screening customers encountered on the street to assess the risk of violence. The judge found that none of the interferences were in accordance with the principles of fundamental justice nor consistent with section 1 of the Canadian Charter.
The Court of Appeal held that the prohibitions on brothels and on living on the avails violated a prostitute’s right to liberty and security. These prohibitions prevented prostitutes from taking measures to secure their safety while conducting a legal activity, namely working in a brothel or employing security staff. Neither could be justified under section 1 of the Canadian Charter. By contrast, it was held that the prohibition on communication in public was a valid interference with section 7 rights, as it complied with “the principles of fundamental justice”, including proportionality with legislative objectives, as specified under section 7. Significantly, the Court did not consider that the safety benefits that flowed from communication with clients on the street (to ascertain potential risks) were significant.
Question 1: Do the provisions interfere with any rights under section 7?
The Court noted that each right in section 7 – to life, liberty and security of the person – must be treated as distinct and analysed separately.
Interference with right to liberty
The Court held that all three challenged provisions interfered with the right to liberty as each imposed penal sanctions for contravention. The “risk of imprisonment flowing from conviction” was sufficient to engage the applicants’ rights to liberty.
The Court dismissed a “broader liberty claim” made by some interveners that the right to liberty extended to the freedom to engage in a chosen occupation. The Court held that the decision to engage in prostitution was an “economic or commercial” one and could not be characterised as “so fundamentally and inherently personal and private as to fall under the right to liberty”.
Interference with the right to security of the person
The Court held that the provisions interfered with the right to security by increasing the risk of physical harm to prostitutes as they prohibited “obvious” and “significant” safety measures. Counsel for the Government submitted that the legislative provisions did not in themselves “cause” interference with a prostitute’s right to security. The acts of third parties were the direct cause of harm. The Court insisted that it was sufficient that the provisions “increase the risk” of physical harm to prostitutes by criminalising potentially effective safety measures. It noted that a “traditional” causation analysis was not appropriate in the case of legislation.
The Court also strongly dismissed the argument that the causal chain between the provisions and the harm was broken by the “personal decision” to engage in an “inherently dangerous” activity. The Court insisted that prostitution was a legal activity, and to deprive prostitutes the ability to protect themselves while conducting a legal activity would be to imply “that those who choose to engage in the sex trade are for that reason not worthy of the same protection as those who engage in other dangerous, but legal enterprises.”
Question 2: Are the interferences in accordance with the fundamental principles of justice?
Under section 7, an interference with rights is permissible if the interference is “in accordance with the principles of fundamental justice”.
The principles of fundamental justice relate to the relationship between the interference and the legislative purpose sought to be achieved. An interference is permissible if it is:
- consistent with the legislative objective sought to be achieved (not arbitrary);
- necessary to achieve the legislative objective (not overbroad); and
- not disproportionate to any legitimate government interest (not grossly disproportionate).
This analysis is similar to that under section 7(2) of the Victorian Charter which provides that, in determining whether a limitation is “reasonable” and “demonstrably justified in a free and democratic society”, a court may consider the “relationship between the limitation and its purpose”.
The Court ruled that only the prohibition on communication was “in accordance with the principles of fundamental justice”. Both the prohibitions on brothels and on living on the avails were “overbroad” and “grossly disproportionate”.
Importance of characterising the legislative objectives
Key to the Court’s findings on overbreadth and disproportionality was its characterisation of the legislative objectives. The Court did not find that the objective of prohibiting brothels or of living on the avails was to eradicate prostitution. Instead, it concluded that “the challenged provisions are not aimed at eradicating prostitution, but only some of the consequences associated with it, such as disruption of neighbourhoods and the exploitation of vulnerable women by pimps.”
On the basis of this narrow characterisation, the Court found the prohibitions to be overbroad:
- It found that the prohibition on brothels was intended to combat “neighbourhood disruption or disorder”, but in fact extended to individual prostitutes operating discretely from their own homes.
- It also found that the prohibition on living on the avails of another’s prostitution was designed to prevent exploitative relationships, but in fact criminalised “non-exploitative commercial relationships”, such as the hiring of bodyguards or receptionists.
Given this narrow objective, the interference caused by both provisions was also considered to be “grossly disproportionate”. In reaching this conclusion, the Court emphasised the significance of the safety benefits denied to prostitutes.
The Court approached the prohibition on communication differently. It characterised the objective broadly: to prevent the serious social impacts of street prostitution. And it gave little credit to the safety value denied by the prohibition on communication. The Court considered that speaking to clients on the streets was “not the only method prostitutes use to assess the risk of harm”, and that street prostitution remained highly dangerous. On this basis, the interference was neither overbroad, nor grossly disproportionate.
Question 3: Can the provisions be saved as a “reasonable limit” under section 1 of the Canadian Charter?
Neither the prohibition on brothels nor the prohibition on living on the avails was saved by section 1. The Court did not address this question in detail, but simply reiterated its reasoning above.
The Court emphasised the need to “avoid undue intrusion into the legislative sphere, while also respecting the purposes of the Charter”.
It struck down the prohibition on brothels, but suspended the effect for 12 months to enable the legislature to amend it. Significantly, the Court noted that the section could be amended to maintain compliance with the Canadian Charter: “It would be open to Parliament to draft a bawdy-house provision that is consistent with the modern values of human dignity and equality and is directed at specific pressing social problems, while also complying with the Charter.”
The Court read in words of limitation to the provision on living on the avails so that it applies only in “circumstances of exploitation”, such profiteering by a pimp.
The key lesson from this case appears to be one of legislative drafting. To prevent a challenge under section 7, Parliament must make its intention to ban an activity clear. Otherwise, it risks a finding that the interference is arbitrary, unnecessary and potentially grossly disproportionate.
In this case, Parliament had not explicitly banned prostitution. It had simply sought to make it virtually impossible to legally, and safely, conduct it. The Court indicated that, had the provisions contained such a clear prohibition, they may have passed the section 7 test (though potentially still challengeable under section 1): “It would be difficult for the respondents to establish that the provisions are arbitrary or overbroad and perhaps even disproportionate if, in some way, the laws advance the objective of reducing or abolishing prostitution.”
The judgment has been hailed as a victory by certain feminist organisations, such as the Simone de Beauvoir Institute at Concordia University, who claim that the ruling “means that women can work more safely and … can work together”. Other commentators caution, however, that the judgment effectively encourages governments to take steps to expressly prohibit prostitution, given the comments of the court regarding legislative objectives.
Relevance to the Victorian Charter
In Victoria, prostitution in private brothels is legal under the Sex Work Act 1994 (Vic), but street prostitution remains illegal. One of the Act’s stated purposes is to “maximise the protection of sex workers from violence and exploitation”.
The comparable provision of the Victorian Charter is section 21, which protects the right to liberty and security of the person. It does not, however, contain a provision that interference with rights is permissible “if in accordance with the fundamental principles of justice”.
The key aspects of the decision relevant to the Victorian Charter are:
- provisions that make it dangerous for individuals to undertake an otherwise legal activity may interfere with an individual’s right to security under section 21;
- a crime-creating provision may be presumed to interfere with the right to liberty if it contains penal sanctions due to “the risk of imprisonment flowing from conviction”; and
- the right to liberty does not extend to decisions to engage in a particular commercial activity, but may be limited to decisions that “go to the heart of an individual’s private existence”.
The decision can be found online at: http://www.ontariocourts.ca/decisions/2012/2012ONCA0186.pdf
Lucy Maxwell is a Law Graduate at King & Wood Mallesons in the Human Rights Law Group.