Criminal Code’s prostitution laws violate Charter, Court of Appeal says
Court of Appeal agrees prostitution laws violate the Charter
In Canada (Attorney General) v. Bedford, the Ontario Court of Appeal upheld a lower court ruling which struck down the Criminal Code provision prohibiting the operation of a common bawdy house. The trial court held that the bawdy house provision, which prevented sex trade workers from offering their services out of fixed indoor locations such as brothels, or their own homes, breached s. 7 of the Canadian Charter of Rights and Freedoms, which guarantees 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.
The case began when three present and former sex trade workers brought an application in the Superior Court of Justice seeking to strike down as unconstitutional various provisions of the Criminal Code which criminalized activities associated with prostitution. In addition to the bawdy house provision, they challenged provisions of the Code which prohibit living on the avails of prostitution and communicating for the purpose of prostitution in public. The living on the avails provision criminalizes the use of support and security staff funded by the proceeds of the prostitution, regardless of whether the relationship is an exploitative one; and the communicating provision prohibits any attempt by street prostitutes to screen potential customers by speaking with those customers in a public place for the purpose of prostitution.
The Superior Court of Justice held that all of the challenged provisions breached s. 7 of the Charter and struck them down. It held that the challenged laws exacerbate the harm that prostitutes already face by preventing them from taking steps that could enhance their safety. Those steps included working indoors, alone or with other prostitutes; paying security staff; and screening customers encountered on the street to assess the risk of violence. The federal government appealed the decision to the Ontario Court of Appeal.
The Court of Appeal’s decision
The Court of Appeal upheld the lower court’s finding with respect to the bawdy house provision, holding:
… the bawdy-house provisions aim to combat neighbourhood disruption or disorder and to safeguard public health and safety. We agree with the application judge that the prohibition is not arbitrary, because it targets many of the social harms associated with bawdy-houses. However, like the application judge, we conclude that the bawdy-house prohibition is overbroad because it captures conduct that is unlikely to lead to the problems Parliament seeks to curtail. In particular, the provisions prohibit a single prostitute operating discreetly by herself, in her own premises. We also agree with the application judge that the impact of the bawdy-house prohibition is grossly disproportionate to the legislative objective, because the record is clear that the safest way to sell sex is for a prostitute to work indoors, in a location under her control. It follows that the prohibition cannot be justified as a reasonable limit under s. 1.
The Court of Appeal also agreed with the lower court that the prohibition against living on the avails of prostitution infringes s. 7 of the Charter to the extent that it criminalizes non-exploitative commercial relationships between sex trade workers and other people. In particular, it prevents prostitutes from hiring bodyguards, drivers, or others who could help keep them safe:
If the living on the avails provision were narrowly tailored to target pimps or others who exploit prostitutes, it could pass constitutional muster. But the section does not simply target pimps, and its effects reach the safety and security of prostitutes. The state response is out of all proportion to the state objectives. While the provision is ostensibly aimed at protecting prostitutes from harm, it prevents them from taking measures that could reduce harm and at worst drives them into the hands of the very predators that the law intends to guard against.
However, the Court of Appeal held that there was no need to strike down this provision. Rather, the Court “read in” words of limitation so that the prohibition would apply only to those who live on the avails of prostitution in circumstances of exploitation. The Court held that this would cure the constitutional defect and align the text of the provision with its vital legislative objective to protect sex trade workers from exploitation by pimps and others.
Finally, a majority of the Court disagreed with the lower court’s ruling that the Criminal Code provision prohibiting communicating for the purposes of prostitution also violated s. 7 of the Charter. It noted that, while street prostitution poses real and grave dangers to the prostitutes themselves, it also has a profound impact on members of the surrounding community and is associated with serious criminal conduct including drug possession, drug trafficking, public intoxication, and organized crime. In addition, the Court disagreed that the provision materially increased danger to sex trade workers by forcing them to rush negotiations with potential customers. While face-to-face communication is an important aspect of customer screening, the Court held, it is not the only method sex trade workers use to assess the risk of harm and the Criminal Code provision is just one factor, among many, that together contribute to the risk faced by street prostitutes. The Court also noted that, given its conclusion with respect to the bawdy house provision, sex trade workers could now move indoors. Accordingly, the Court allowed the government’s appeal on this aspect of the decision. Two judges disagreed and would have struck down the communicating provisions as well.
Cynthia Petersen and Char Wiseman represented POWER, which intervened in the appeal in support of the Respondents.
Daniel Sheppard acted as co-counsel for the Respondents Bedford, Lebovitch and Scott.
Note: This decision was appealed to the Supreme Court of Canada. Read the Supreme Court of Canada’s decision