Canada (Attorney General) v Bedford  3 SCR 1101 (20 December 2013)
The Supreme Court of Canada has held that criminalisation of certain activities relating to prostitution breach the right to security under section 7 of the Canadian Charter of Rights and Freedoms. The Court found that the impugned laws imposed dangerous conditions on what is otherwise a legal activity, that of selling sex.
Three women who currently work, or have worked as, prostitutes* (applicants) applied to the courts challenging the constitutionality of three sections of the Canadian Criminal Code, R.S.C. 1985. The applicants claimed three sections of the Criminal Code (provisions) violated their rights under section 7 (security of the person) and section 2 (freedom of expression) of the Charter.
It is not illegal to sell sex in Canada. However, prostitution is regulated in a number of ways. Specifically, the Criminal Code contains the following provisions:
- Section 210 which makes it an offence to keep, occupy, be found in, own, lease or otherwise control a bawdy house;
- Section 212(l)(j) which prohibits living on the avails of prostitution; and
- Section 213(l)(c) which prohibits communicating in public for the purposes of prostitution.
A bawdy house is defined under section 197 as a place that is kept, occupied or resorted to by one or more persons for the purpose of prostitution or the practice of acts of indecency.
Right to security of the person
Section 7 of the Charter states:
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 2 of the Charter guarantees the right to freedom of expression; however, the Court was not required to consider section 2 as it decided the case completely under section 7.
First instance and appeal
In the first instance the Application Judge held that the provisions violated both sections 2 and 7 of the Charter and were therefore invalid. The Court of Appeal agreed as regards sections 212(l)(j) and 210, striking out the word “prostitution” from the definition of bawdy-house. However, the Court of Appeal held that there was no violation of sections 2 or 7 of the Charter in relation to section 213(l)(c) (i.e. the provision prohibiting communicating in public for the purposes of prostitution.)
Before turning to consider the human rights questions, the court was asked to consider the following technical issues:
- When can lower courts look at a case similar to one previously ruled upon in a higher court? The court held that the threshold for revisiting issues is met for lower courts when there is a new legal question raised (as was the case here), or if there is a significant change in the circumstances or evidence.
- What is the appropriate standard of causation? The Court held the applicable standard is the “sufficient causal connection” test. The Court rejected the argument that the cause of the risks was the fact that people were choosing themselves to work in a risky industry, or that the cause was solely down to the actions of third parties, such as clients.
- What level of deference should be given to lower courts’ findings on social and legislative facts? The court held that the level of deference should be the same as for any other findings of fact.
Violation of the right to security of the person
The Court concurred with the Applicant Judge’s finding that the provisions had imposed dangerous conditions on prostitution. The provisions prevented people engaged in risky activity from taking steps to protect themselves from those risks. Prostitutes were forced to work on the street rather than in safer indoor locations; they were prevented from hiring body guards, drivers, managers or receptionists, and were prevented from screening potential clients on the street for intoxication or propensity to violence. The provisions therefore clearly negatively impacted on the security of the person.
The Court went into some detail on the nature of the relevant aspects of fundamental justice, that of arbitrariness, overbreadth and gross disproportionality. Applying them to the provisions, the Court held that:
- The harm brought about by the bawdy-house provision, that of preventing prostitutes from working in safer locations, is grossly disproportionate to its objective of preventing public nuisance. As the Court noted “Parliament has the power to regulate against nuisances but not at the cost of the health, safety and lives of prostitutes.”
- The criminalisation of living on the avails of prostitution – intended to target pimps and exploitative conduct – actually punishes everyone who lives on the avails of prostitution, including those who could increase the safety and security of prostitutes. The provision is therefore overbroad as it includes some conduct that bears no relation to the purpose.
- Finally, the purpose of the communication provision is to take prostitution off the streets and out of public view, thus preventing nuisance. However, the negative impact on prostitutes, preventing them from screening potential clients, was considered by the Court to be a grossly disproportionate response to the possibility of nuisance caused by street prostitution.
Interestingly, the Court noted that gross disproportionality is not concerned with the number of people who are impacted; a grossly disproportionate effect on one person is sufficient to violate the norm.
The Court rejected the Attorney General’s argument that the prohibition on living on the avails of prostitution is justified under section 1 of the Charter as necessary to capture all exploitation, saying it was not minimally impairing.
The Court held that the provisions were in breach of section 7 and therefore invalid. The invalidity was suspended for 12 months to allow Parliament to provide alternative regulations.
The case elicited significant attention in Canada and was the subject of interventions by more than 25 organisations. The case has provided welcome clarification to the concepts of fundamental justice and causation, as outlined above. Section 7 claims in Canada are continuing to see success against Government action or inaction, apparently in contrast to the lack of success in using equality rights.
Unfortunately, by viewing the harm to the security of women through the lens of individual security and the ability of the individual to protect themselves from harm, the debate risks overlooking greater failings of the State to tackle the structural race inequalities that leaves many women without well-paying work, which in turn leads to a disproportionate number of Indigenous and newly arrived migrant women working in prostitution. The best ways to protect women from the violence of prostitution are not in the realm of negative rights, but positive obligations: increased economic equality, the provision of programs of support for women who wish to quit prostitution, and increased provision of social services and healthcare to those living on the margins of poverty.
The decision can be found here: http://canlii.ca/t/g2f56
*Note that while sex worker is the preferred term, this case summary has adopted the terminology used by the courts, that of prostitute.
Emily Christie is a human rights lawyer on secondment from DLA Piper at the Human Rights Law Centre.