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Canada (Attorney General) v. Bedford (Supreme Court of Canada)

December 20, 2013

Highest court strikes down Canada’s prostitution laws

The Supreme Court of Canada has unanimously struck down Canada’s prostitution laws, finding that they violate s. 7 of the Canadian Charter of Rights and Freedoms.

Background

The Criminal Code prohibits the operation of a common bawdy house and living on the avails of prostitution. A trial court and the Ontario Court of Appeal struck down those provisions on the basis that they violated s. 7 of the Canadian Charter of Rights and Freedoms. Section 7 provides that the state cannot deny a person’s right to life, liberty or security of the person, except in accordance with the principles of fundamental justice. A third Criminal Code provision, which prohibited communicating in public for the purposes of prostitution, was upheld. A summary of these decisions can be found here.

The federal government appealed the case to the Supreme Court of Canada. The applicants, three sex trade workers, cross-appealed with respect to the communication provision.

The Supreme Court’s decision

The Supreme Court of Canada dismissed the appeal, but allowed the cross-appeal, with the result that all three provisions were struck down.

The Supreme Court found that the laws heightened the risk sex trade workers face in prostitution, which in itself is a legal activity. The provisions did not simply impose conditions on how sex trade workers operate, but actually impose dangerous conditions on prostitution by preventing sex trade workers from taking steps to protect themselves from the risks. The fact that sex trade workers face the risk of violence by pimps and johns did not diminish the role of the state in making them more vulnerable to that violence. The provisions therefore violated the right of sex trade workers to security of the person, contrary to s. 7.

The Court further held that the violation of sex trade workers’ security of the person did not accord with the principles of fundamental justice. The bawdy house provision was “grossly disproportionate to the deterrence of community disruption. Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes.”

The living on the avails provision, while aimed at pimps, was also overbroad since it “punished everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes and those who could increase the safety and security of prostitutes” (such as legitimate drivers, managers, or bodyguards).

Finally, the communicating for the purpose of prostitution law had a negative impact on the safety and lives of sex trade workers since it prevented them from “screening potential clients for intoxication and propensity to violence [and was therefore] grossly disproportionate response to the possibility of nuisance caused by street prostitution.”

None of the provisions could be saved by s. 1 of the Charter.

The Court suspended its declaration of invalidity for one year, to allow Parliament some time to consider how it may wish to regulate prostitution in a manner that does not violate the Charter.

Read the Supreme Court of Canada’s decision

View a webcast of the appeal

Lawyers

Daniel Sheppard

Practice Areas

Appeals & Judicial Review, Constitutional Law, Criminal Law