Terri Jean Bedford case at the Supreme Court of Canada

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Bärlüer
Terri Jean Bedford case at the Supreme Court of Canada

A reminder: the Supreme Court of Canada will hear on June 13th the Terri Jean Bedford case.

Here's the Supreme Court's summary:

Quote:
The respondents, former and current sex trade workers, challenged the constitutional validity of s. 210 (keeping common‑bawdy houses) as it relates to prostitution, s. 212(1)(j) (living off the avails of prostitution), and s. 213(1)(c) (communicating for the purpose of prostitution) of the Criminal Code.  The trial judge held that these provisions breach the respondents’ right to security of the person under s. 7 of the Charter of Rights and Freedoms and that s. 213(1)(c) breaches s. 2(b) of the Charter.  The Court of Appeal allowed an appeal in part.  It held that it was not open to the trial judge to review whether s. 213(1)(c) breaches s. 2(b) of the Charter because that issue was decided in Reference Re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123.  It held that all three provisions infringe the respondents’ security of the person.  It held that s. 213(1)(c) does not violate principles of fundamental justice and should remain in force and effect.  It held that s. 210 should be struck and the limiting words “in circumstances of exploitation” should be read into s. 212(1)(j).

In another thread, I had provided some information on the (numerous) interveners in the case.

Having now glanced at the factums produced by the interveners, I can now provide some more information on the various positions that are being advanced, in the event that is of interest to some of you. (This gives a much better portrait of the positions than the mere enumeration of my earlier post in the other thread.)

Here are the "pro-criminalization" interveners:

  • The Quebec Attorney General takes the position that all three provisions are constitutional.
  • The Christian Legal Fellowship, the Catholic Civil Rights League and REAL Women of Canada [obligatory shudder] submit a joint factum in which they argue that the bawdy-house and living on the avails provision are constitutional (they do not discuss the communication provision, but they obviously support the Court of Appeal's conclusion that it is constitutional) 
  • The Evangelical Fellowship of Canada takes the position that all three provisions are constitutional

Here are the "mixed bag" interveners (note: these groups are "mixed" only WRT their approach to the constitutionality of the provisions; these are all groups who adopt an abolitionist perspective):

  • The AWCEP Asian Women Society for Equality, operating as Asian Women Coalition Ending Prostitution (Asian Women) takes the position that the living on the avails provision is constitutional and that the bawdy-house provision "cannot constitutionally apply to prostituted persons" but that it is constitutional "insofar as it creates offences committed by persons, such as pimps and buyers, etc., other than prostitued persons"
  • The Canadian Association of Sexual Assault Centres, Native Women’s Association of Canada, Canadian Association of Elizabeth Fry Societies, Action Ontarienne contre la Violence Faite aux Femmes, la Concertation des Luttes contre l’Exploitation Sexuelle, Le Regroupement Québécois des Centres d’Aide et de Lutte contre les Agressions à Caractère Sexuel and Vancouver Rape Relief Society, intervening as the Women’s Coalition for the Abolition of Prostitution, submit that s. 210(2)(a) [inmate of a bawdy house] is unconstitutional in its entirety, and s. 210(1) [keeping a bawdy house] and s. 213 [communicating] are unconstitutional only to the extent that they apply to prostituted persons. They further submit that s. 210 [keeping a bawdy house], s. 210(2)(b) [found-in at a bawdy house], s. 210(2)(c) [knowingly permitting a bawdy house], s. 212(1)(j) [living on the avails] and s. 213 [communicating] are constitutional to the extent that they apply to johns, brothel owners, and pimps/profiteers.

Here are the "pro-decriminalization" interveners:

  • The Aboriginal Legal Services of Toronto intervener focuses on the communication provision, which they argue is unconstitutional. They also support the Court of Appeal's finding (of unconstitionality) on the two other provisions.
  • The Canadian HIV/AIDS Legal Network, the British Columbia Centre for Excellence on HIV/AIDS, the HIV & AIDS Legal Clinic Ontario submit a joint factum arguing that the three provisions are unconstitutional and that the living on the avails provision should be struck down rather than modified by reading in the words "in circumstances of exploitation"
  • The Institut Simone de Beauvoir espouses the orders sought by the Respondents. The factum focuses on harm theory and discusses the bawdy-house and communication provisions.
  • The British Columbia Civil Liberties Association focuses on the communication provision, which it argues is unconstitutional
  • The Downtown Eastside Sex Workers United Against Violence Society, PACE Society and Pivot Legal Society submit a joint factum that espouses the Respondents' positions and focuses on the communication provision, which it argues is unconstitutional
  • The Secretariat of the Joint United Nations Programme on HIV/AIDS advances a general argument in favor of decriminalization of sex work
  • * The David Asper Centre for Constitutional Rights advances an argument restricted to the sole matter of stare decisis. However, it seems to find no fault with Himel J.'s decision, so I'm putting the intervener in this list

Hope some find this useful.

kropotkin1951 kropotkin1951's picture

Thx Barluer that is excellent info.

Unionist

Yes, thanks Bärlüer as always. But I confess to not understanding exactly where things are at after the Court of Appeal decision.

What I'd love to see (i.e., work for someone else to do, hint hint Bärlüer) is a list or table, in simple terms, saying:

1. Here's the law (before the first challenges).

2. Here's the law after the Court of Appeal's decision.

3. Here's what the appellants are challenging in the Court of Appeal's decision.

If I'm the only one who doesn't know the exact answers to the above, accept my apologies and I'll do my own research!

 

Bärlüer

Unionist wrote:

Yes, thanks Bärlüer as always. But I confess to not understanding exactly where things are at after the Court of Appeal decision.

What I'd love to see (i.e., work for someone else to do, hint hint Bärlüer) is a list or table, in simple terms, saying:

1. Here's the law (before the first challenges).

I won't list all the provisions related to prostitution that exist in the Criminal Code, but the three provisions that were challenged in the case were:

  • s. 210: the bawdy-house provision (which concerns: "inmates" of a bawdy-house, persons "found in" a bawdy-house and owners/tenants who knowingly permit the place to be used for the purposes of a bawdy-house). This provision makes it "illegal to conduct prostitution in an indoor location on a habitual and frequent basis" (from Himel J.'s judgment)
  • s. 212(1)j): the living on the avails of prostitution (or "proxenetism" provision). The applicants in the case argued that this provision makes it "illegal to hire managers, drivers, and security personnel and that these type of services can reduce or eliminate the incidence of violence faced by prostitutes."
  • s. 213(1)c): the communication provision, which makes it illegal to communicate in public for the purposes of prostitution.

Unionist didn't ask this, but just to be clear: Himel J. struck down all three provisions as being unconstitutional.

Unionist wrote:
 2. Here's the law after the Court of Appeal's decision.

The Court of Appeal stated that:

  • s. 213(1)c) is constitutional. Thus, under that decision, communicating in public for the purposes of prostitution would remain illegal.
  • s. 210 is unconstitutional — IOW, the Court of Appeal maintained Himel's conclusion WRT this provision.
  • s. 212(1)j) is unconstitutional if read as it currently is. However, according to the Court of Appeal, the proper remedy in this case would be not to strike down the section, but to "read in" the qualifying words "in circumstances of exploitation" in the text, so that the new section would read: "Everyone who lives wholly or in part on the avails of prostitution of another person in circumstances of exploitation is guilty of an indictable offence"

Unionist wrote:
 3. Here's what the appellants are challenging in the Court of Appeal's decision.

  • The Attorney General of Canada appeals WRT the bawdy-house and living on the avails provisions.
  • Bedford et al. cross-appeal (which means that even though they are the respondents in the main appeal, they also form their own appeal on other issues) WRT the communication provision and the remedy fashioned by the Court of appeal for the living on the avails provision (the "reading in" of "in circumstances of exploitation" rather than the striking down). Pages 39 and 40 of the Respondents' factum set out their position on the issue of the proper remedy for that section.

Unionist

Wow... thanks again! Got it, I think. Isn't it time we discussed your fee schedule? Pro bono doesn't pay the bills...

One more quick question (I'm sure I should know the answer, but I don't):

Other than the circumstances described in the contested sections (indoors, frequent, habitual, etc.), am I right in concluding that there is no legal prohibition as such on either the sale or purchase of sexual... er... favours?

ETA: Here's a really specific question which occurred to me in trying to follow the abolition vs. decrim vs. legalization debates:

Company X advertises for secretarial staff. In the job interviews (but not in the ads), all applicants (irrespective of gender) are told explicitly that the provision of sexual services as instructed by a manager is a job requirement.

Legal or not?

 

 

Bärlüer

Unionist wrote:

Other than the circumstances described in the contested sections (indoors, frequent, habitual, etc.), am I right in concluding that there is no legal prohibition as such on either the sale or purchase of sexual... er... favours?

Yep.

Unionist wrote:
ETA: Here's a really specific question which occurred to me in trying to follow the abolition vs. decrim vs. legalization debates:

Company X advertises for secretarial staff. In the job interviews (but not in the ads), all applicants (irrespective of gender) are told explicitly that the provision of sexual services as instructed by a manager is a job requirement.

Legal or not?

This is not behavior that is captured by the Criminal Code.

Whether it is otherwise "legal" is another question. I see that you removed the aspect of gender to evacuate any possible question of discrimination on the basis of sex... Maybe it would be found not to comport with s. 46 of the Quebec Charter, which provides that "Every person who works has a right, in accordance with the law, to fair and reasonable conditions of employment which have proper regard for his health, safety and physical well-being."

Unionist

Another question (don't know which thread to ask in, so might as well be here):

Are there any "abolitionist" organizations, whether before the court or elsewhere, which advocate full decriminalization?

I put "abolitionist" in quotes because I'm not sure the full scope of what that term captures. I'm using it to mean: Organizations which want to see prostitution gone from society - but in the context of my question, not via criminalization of anyone involved.

 

susan davis

hmmmm...many of the decrim org's would like to see poverty and other things that drive people to choose sex work eliminated from society....its not really what you meant.....i actually don't think there is any org's like you have described....

Unionist

Thank you, Susan. I suspected as much, but the confirmation is important.

 

Bärlüer

The Supreme Court will render its decision in the Bedford case on Friday, December 20.

susan davis

crossing our fingers in vancouver....

JulieG

crossing our fingers in Ontario too, and right across the country.  scrap these 3 rotten laws now!

mark_alfred

Victory!  Unanimous decision, with the Supreme Court going even further than the Ontario Court of Appeal, striking down all three of the challenged provisions, rather than just two. Parliament has been given one year to come up with new legislation, if it so chooses. It will be interesting to see how the government handles this.

onlinediscountanvils

Congrats to all those who've been fighting and waiting for this day to arrive!

Libby Davies: [url=http://www.libbydavies.ca/news/pressrelease/2013/12/20/statement-supreme... on Supreme Court Ruling on Prostitution Laws[/url]

I welcome the landmark decision today by the Supreme Court of Canada that strikes down 3 laws relating to prostitution. They ruled that bans on street soliciting, brothels, and people living off the avails of prostitution are unconstitutional and create serious risks for sex workers.

The exploitation, murder and violence against sex trade workers in Canada happens at an alarming rate, and until today, the laws dealing with prostitution remained unchanged and governments remained unwilling to realistically deal with this growing public safety issue.  These laws have been a failure, both from the perspective of assisting and protecting sex workers as well as in mitigating the impacts of street prostitution on local communities.

I also congratulate and thank the many advocates who never gave up in pressing for these changes in order to uphold the rights and safety of sex workers. [...]

mark_alfred

Here's some nonsense from the Department of Justice.

Quote:
We are reviewing the decision and are exploring all possible options to ensure the criminal law continues to address the significant harms that flow from prostitution to communities, those engaged in prostitution, and vulnerable persons.

Note, the bolding above is mine.  The law was successfully challenged because:

Quote:
The three impugned provisions, primarily concerned with preventing public nuisance as well as the exploitation of prostitutes, do not pass Charter muster:  they infringe the s. 7 rights of prostitutes by depriving them of security of the person in a manner that is not in accordance with the principles of fundamental justice.

These laws were struck down because they were deemed to be causing harm, and were not deemed to be "address[ing] the significant harms that flow from prostitution."  Anyway, I was glad to read Libby Davies statement that onlinediscountanvils posted.

Catchfire Catchfire's picture
susan davis

we are totally exstatic!! we were all together at pivot for the decision this morning...we cried and drank champagne...we hugged each other and mourned those who did not survive to see this day.

finally we can prove that the idealogical arguements have no basis in reality and that in fact what have been saying all along is true.

i am so greatful to live in a country where justice will always prevail...eventually....i testified in 2006...its been a long long road.

going back to celebrations now!!

onlinediscountanvils

Maggie's (Toronto Sex Workers Action Project): [url=http://maggiestoronto.ca/news?news_id=109]What Does The Supreme Court Decision Mean For Sex Workers and People in the Sex Trade?[/url]

Quote:
Sex workers have the solutions to the problems we face. Among these are honouring treaty rights, affordable housing, respectful healthcare and substance treatment, an end to poverty and an overhaul of the child welfare system. Another is to pull the anti-prostitution laws off the backs of the sex workers who are harmed--not helped—by them. For this decision to truly make a difference in our lives, sex workers must be in leadership roles for all decision making about regulations that impact our safety and livelihood including: zoning and licensing, control over the conditions and locations of our work, human rights and labour rights protections, the right to organize as workers.

quizzical

so.......they want more rights than the rest of  the work force across canada???????

onlinediscountanvils

quizzical wrote:
so.......they want more rights than the rest of  the work force across canada???????

No, they want more rights for the rest of the work force across Canada.

Maggie's wrote:
Sex work is real work and we demand fair and safe working conditions for all of us including those without status. We stand against the exploitation of all workers and legislation that advances the precarity of labour and creates vulnerability to exploitation. The disregard by the state for the lives of Indigenous people involved in sex work and the over-representation of Indigenous people in the most precarious and vulnerable forms of sex work cannot be separated from the ongoing economic exploitation of Indigenous people, the extraction of resources from Indigenous lands, the ongoing pursuit of profit at the expense of Indigenous communities and environmental protections, and the displacement of Indigenous peoples from land and labour. Our call for labour rights for all sex workers supports the right to self-determination for Indigenous peoples. Sex worker rights are labour rights. Health and Safety for Sex workers is a labour rights issue.

mark_alfred

susan davis wrote:

we are totally exstatic!! we were all together at pivot for the decision this morning...we cried and drank champagne...we hugged each other and mourned those who did not survive to see this day.

finally we can prove that the idealogical arguements have no basis in reality and that in fact what have been saying all along is true.

i am so greatful to live in a country where justice will always prevail...eventually....i testified in 2006...its been a long long road.

going back to celebrations now!!

Congratulations!

Unionist

Great decision! Congratulations to everyone who worked so hard on this!

Now, is this the right thread to start discussing what Harper is liable to do next?

Here goes:

What if he criminalizes sex work - outright? I need the lawyers at this point:

1) Would that undermine and eliminate the Charter Section 7 basis of the SCC's decision (seems to me it would)?

2) Would such a total ban survive a separate Charter challenge under some other section - freedom of expression? I just can't see how Section 7 would apply to a total ban.

Finally, the pundits please:

From Harper's viewpoint - would this be a vote-getter or vote-loser?

Sorry to be a grouch, but I'm trying to be realistic. Expecting or hoping Harper will introduce any form of decrim or legalization seems like fantasy-land to me. Tell me I'm wrong.

 

 

Bacchus

Or he could do nothing and just endlessing 'examine' it through committees

mark_alfred

Coyne gives some thoughts on it.  He talks about how he feels the struck down laws were too broad, and says that the so-called Nordic option likewise is too broad.  Not sure about his suggestion of licensing, though.  I was reading New Zealand's Prostitution Reform Act, which seems interesting.

mark_alfred

Bacchus wrote:

Or he could do nothing and just endlessing 'examine' it through committees

Maybe, but he only has a year before the three laws are gone.

cco

This will definitely be a poll-winner for Harper. Whether it's a vote-winner, I can't yet say. Much like the people who have been commenting on Rob Ford who don't want to acknowledge that middle-class professional whites use crack, I imagine a whole lot of people will publicly proclaim their opposition to prostitution and then go pay a visit to Jenny tonight.

I saw a few comments in other threads about how the "Nordic model" tackled "demand for prostitution" by arresting johns. Yes, exactly like the war on drugs has targeted demand for drugs by arresting drug users. We can all see how well that's worked, can't we? In fact, I don't see why anyone is worried about people who do sex work to support a drug habit. Buying drugs is illegal. This has completely eliminated the market.

mark_alfred

I think potentially Harper could pull a notwithstanding (The Charter, s. 33) out of his hat and spend the rest of his term vilifying both prostitutes and the Supreme Court.  I don't think he'd do that, because I don't think the public would be on his side, and he realizes it wouldn't be a winning move.  But, Harper has surprised me before.  They may simply choose not to replace the three laws with anything, though that seems the least likely.  Admittedly, I can't even guess how the Cons will handle this.

Unionist

I still want to know: Could he ban sex for money without offending the Charter at all? Or, could the provinces?

Bärlüer

Unionist wrote:

What if he criminalizes sex work - outright? I need the lawyers at this point:

1) Would that undermine and eliminate the Charter Section 7 basis of the SCC's decision (seems to me it would)?

It's definitely a contentious issue. I really hope the political process can lead to an outcome other than outright criminalization of sex work (or the so-called "Nordic" model, which shares the same telos, that is, prohibition).

But if we come to that, what happens legally speaking?

I personally think that the s. 7 reasoning adopted by the Court would still apply to outright criminalization:

- Security of the person would still be engaged: the heightened risks faced by sex workers because of criminal prohibitions would still be there, in an aggravated manner, even.

- The question of legal causation (this is still at the level of determining whether s. 7 is engaged) is unchanged.

- The deprivation of security would still be in violation of principles of fundamental justice: if anything, the prohibition would be more overbroad/grossly disproportionate.

- The government would probably have more arguments to present on s. 1, because the legislative objective of the outright prohibition would be different, etc. But I personally think it wouldn't pass the minimal impairment branch of the s. 1 test. (And courts are loathe to justify a law that violates s. 7 [I don't think it has ever happened at the level of the Supreme Court], although the Court in Bedford does recognize that it could happen.)

I also note that the sex workers' argument would still not amount to an assertion of a so-called "positive right to vocational safety", as the Court rejected in Bedford. They wouldn't be seeking specific measures from the State to ensure safety — the case would still be that the legislative prohibition aggravates risk.

So, in short, the outright prohibition would still have the same harmful effects that the three provisions in Bedford were found to have — and it is the effects of the law that the Court is concerned with. It's true that the Court in Bedford emphasizes a number of times that prostitution itself is legal (it also says that Parliament is not "precluded from imposing limits on where and how prostitution may be conducted"...), but I don't think this means that its s. 7 reasoning actually rests on that being the case. As I've just said, I think the basic argument re: s. 7 remains the same.

But courts might very well not take the same view as me...

Unionist wrote:

2) Would such a total ban survive a separate Charter challenge under some other section - freedom of expression? I just can't see how Section 7 would apply to a total ban.

Justice Himel had concluded that the communication provision violated freedom of expression, in spite of the precedent of the 1990 Prostitution Reference. The Supreme Court did not examine the argument because of its conclusion on s. 7.

Would a freedom of expression argument have interesting chances if examined anew by courts, in relation to an outright prohibition...? I don't know... I have doubts. I think the s. 7 case is significantly stronger.

mark_alfred

Thanks Bärlüer, that's very interesting.

Bärlüer wrote:

It's definitely a contentious issue. I really hope the political process can lead to an outcome other than outright criminalization of sex work (or the so-called "Nordic" model, which shares the same telos, that is, prohibition).

But if we come to that, what happens legally speaking?

I personally think that the s. 7 reasoning adopted by the Court would still apply to outright criminalization:

So, in short, the outright prohibition would still have the same harmful effects that the three provisions in Bedford were found to have — and it is the effects of the law that the Court is concerned with.

That's interesting.  Initially I was focusing on freedom of expression, rather than s. 7, but I do see your point concerning harmful effect of a law.

Quote:

Would a freedom of expression argument have interesting chances if examined anew by courts, in relation to an outright prohibition...? I don't know... I have doubts. I think the s. 7 case is significantly stronger.

Yeah, initially I had been focused on freedom of expression when contemplating it -- IE, the question of whether a law proscribing prostitution (or, as advocated by some, proscribing the purchase of services of prostitutes) limits people's constitutionally-protected freedom of expression and, if so, whether that limit is justifiable.  But I see your point in the focus on s. 7 being a better way to fight a move toward prohibition by the gov't.

Unionist

Thanks for the analysis and opinion, Bärlüer. I'm still concerned about Section 7, and here's why in more detail.

In paras 79-92 of [url=http://www.canlii.org/en/ca/scc/doc/2013/2013scc72/2013scc72.html]their decision[/url], the justices reject the argument that the harm to sex workers comes not from the law, but from the person's choice to engage in a risky activity. They essentially say that: 1. Some people (including Bedford, based on her testimony) have no meaningful "choice" other than to engage in sex work. 2. Anyway, it's a legal activity.

Surely what the court says here (at least my point #1) could apply to a host of unlawful activities under many circumstances - like trafficking in illicit drugs, or petty crime, or major crime, etc. Would the court really apply Section 7 to strike down laws that made criminal activities more risky, on the basis that many people are driven to crime by "financial desperation, drug addictions, mental illness, or compulsion from pimps" (maybe substitute "pimps" by "gangs", etc.)?

It seems to me that an important basis of the reasoning in that section is that selling sex for money is lawful. If it were banned (like selling cannabis, or stolen goods, or a myriad of other examples) - how could Section 7 be invoked? Especially for people that choose freely to engage in sex work? And for those "forced" into crime, surely they'd have to plead that on an individual basis if charged, just as would now be the case for other types of illegal activity.

Am I making sense? 

mark_alfred

s. 103 of the decision states, "Laws are also in violation of our basic values when the effect of the law is grossly disproportionate to the state’s objective."  s. 104 refers to the Insite case, where even though Insite was dealing with illicit drugs, it was found that shutting it down would create greater harm, and thus the effect of this action could not be justified.  I believe Bärlüer is suggesting a similar argument could be used against prohibition.

pookie

I think straight criminalization would be a tougher charter challenge because you would need to

1. argue a liberty interest in selling sex for money.  The Court has always said that economic choices are not protected under section 7.  And it failed to recognize a sufficient liberty interest in smoking marijuana

OR

2. argue a security of the person interest in selling sex for money, on the basis that it is a profound choice like, say, abortion.  I don't see that happening

AND

3. meet the inevitable argument that it does not violate section 7 to enact a criminal law that is based on a conception that human dignity is harmed by prostitution

Survival sex workers might be able to rely on the choice argument, but I could see the Court being very wary about this.  It would seem to open the door to other challenges to criminal laws that catch people in desperate circumstances.  Poor people and theft for example.

So, I don't think Bedford is determinative at all.  To put it another way, you're sure not going to get a unanimous decision this time.

shartal@rogers.com

As for freedom of expression, not all,speech is covered as not all speech is expression. S.7 the right not to be deprived of life or security of the person except in accordance etc... focused on the safety issue. The thought that all people have a right to be safe is essential.

Bärlüer

I think paragraph 91 of the decision is a good starting point to address the concerns you raise:

Quote:
[91]                          Finally, recognizing that laws with serious harmful effects may engage security of the person does not mean that a host of other criminal laws will be invalidated.  Trivial impingements on security of the person do not engage s. 7 (New Brunswick (Minister of Health and Community Services) v. G. (J.),1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46, at para. 59).  As already discussed, the applicant must show that the impugned law is sufficiently connected to the prejudice suffered before s. 7 is engaged.  And even if s. 7 is found to be engaged, the applicant must then show that the deprivation of security is not in accordance with the principles of fundamental justice.

- On choice of a legal activity (para. 87) vs. choice of an illegal activity:

Would the fact that the activity itself has become illegal be fatal to the s. 7 argument? It might seem like the Malmo-Levine case (relied upon by the AG) might support this view ("[...] the consequences are largely the product of deliberate disobedience to the law of the land.")

But I still don't think it's fatal. Look at the InSite decision (PHS Community Services Society):

Quote:
[97]                          Canada argues that any negative health risks drug users may suffer if Insite is unable to provide them with health services, are not caused by the CDSA’s prohibition on possession of illegal drugs, but rather are the consequence of the drug users’ decision to use illegal drugs.

[...]

[102]                      The second strand of Canada’s choice argument is a moral argument that those who commit crimes should be made to suffer the consequences. On this point it suffices to say that whether a law limits a Charter right is simply a matter of the purpose and effect of the law that is challenged, not whether the law is right or wrong.  The morality of the activity the law regulates is irrelevant at the initial stage of determining whether the law engages a s. 7 right.

At this point, one might think that the PHS invocation would be unhelpful, because in that case, the "underlying" prohibition regarding drugs per se remains in effect, as would the "underlying" prohibition on prostitution itself. However, there is a distinction to be made. In PHS, it is the minister's refusal to provide an exemption that is being challenged, because it is this refusal which creates the harm. There is a dissociation between the prohibition of the "underlying activity" and the prohibition of harm-reduction measures. In an outright-prohibition-on-prostitution-itself scenario, where the only legislative provision to which harmful consequences could be attached is that outright prohibition, there is no such dissociation: the prohibition on the "underlying activity" and the prohibition oh harm-reduction measures would be merged in a single provision. It is with this in mind that I think the "harmful effects" analysis would apply in a similar manner.

Furthermore, going back to the fate of other criminal activities, as the Court hints at at para. 91 in Bedford, in many cases, the prohibitive provisions would simply not be found to be in violation of the principles of fundamental justice. The weighing of "gross disproportionality", for instance — the balancing of the effects of the law and the state's objective) would be different, etc.

But clearly, if this is the scenario that goes before the courts, this is going to be a hotly debated issue.

pookie

Bärlüer wrote:

I think paragraph 91 of the decision is a good starting point to address the concerns you raise:

Quote:
[91]                          Finally, recognizing that laws with serious harmful effects may engage security of the person does not mean that a host of other criminal laws will be invalidated.  Trivial impingements on security of the person do not engage s. 7 (New Brunswick (Minister of Health and Community Services) v. G. (J.),1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46, at para. 59).  As already discussed, the applicant must show that the impugned law is sufficiently connected to the prejudice suffered before s. 7 is engaged.  And even if s. 7 is found to be engaged, the applicant must then show that the deprivation of security is not in accordance with the principles of fundamental justice.
 

- On choice of a legal activity (para. 87) vs. choice of an illegal activity:

Would the fact that the activity itself has become illegal be fatal to the s. 7 argument? It might seem like the Malmo-Levine case (relied upon by the AG) might support this view ("[...] the consequences are largely the product of deliberate disobedience to the law of the land.")

But I still don't think it's fatal. Look at the InSite decision (PHS Community Services Society):

Quote:
[97]                          Canada argues that any negative health risks drug users may suffer if Insite is unable to provide them with health services, are not caused by the CDSA’s prohibition on possession of illegal drugs, but rather are the consequence of the drug users’ decision to use illegal drugs.

[...]

[102]                      The second strand of Canada’s choice argument is a moral argument that those who commit crimes should be made to suffer the consequences. On this point it suffices to say that whether a law limits a Charter right is simply a matter of the purpose and effect of the law that is challenged, not whether the law is right or wrong.  The morality of the activity the law regulates is irrelevant at the initial stage of determining whether the law engages a s. 7 right.

At this point, one might think that the PHS invocation would be unhelpful, because in that case, the "underlying" prohibition regarding drugs per se remains in effect, as would the "underlying" prohibition on prostitution itself. However, there is a distinction to be made. In PHS, it is the minister's refusal to provide an exemption that is being challenged, because it is this refusal which creates the harm. There is a dissociation between the prohibition of the "underlying activity" and the prohibition of harm-reduction measures. In an outright-prohibition-on-prostitution-itself scenario, where the only legislative provision to which harmful consequences could be attached is that outright prohibition, there is no such dissociation: the prohibition on the "underlying activity" and the prohibition oh harm-reduction measures would be merged in a single provision. It is with this in mind that I think the "harmful effects" analysis would apply in a similar manner.

Furthermore, going back to the fate of other criminal activities, as the Court hints at at para. 91 in Bedford, in many cases, the prohibitive provisions would simply not be found to be in violation of the principles of fundamental justice. The weighing of "gross disproportionality", for instance — the balancing of the effects of the law and the state's objective) would be different, etc.

But clearly, if this is the scenario that goes before the courts, this is going to be a hotly debated issue.

I agree that the choice issue exists with the particular substrata of sex workers.  There is, though, a subtle difference with PHS: namely, that a heroin addiction can only be satisfied in one way.  No one is talking about an addiction to prostitution, but rather a desperate need for money that some people will satisfy by selling themselves.  The question is whether that is enough to make the application of the blanket prohibition contrary to fundamental justice.

I think it will come down to the state's arguments about the harm that it reasonably apprehends flow from prostitution.  It is not like theft, for example, I accept, because there is no individual "victim."  It is, perhaps more like Rodriguez and Carter: the specific act on its own is consented to, but can it be argued to lead to other ill effects (degredation of women; creation of a hamful industry) that Parliament is entitled to seek to avoid.

I will say that the Court's new test for overbreadth and gross disproportionality (you only need to show a single application, much like cruel and unusual punishment) makes a Charter challenge a bit easier.  But that opens up section 7 so much that I wonder if the Court will either (a) be very reluctant to actually conclude that such a result exists or (b) finally begin to rationalize the relationship between section 7 and section 1 so that there can be "reasonable limits" on section 7 violations. 

Anyway, interesting times ahead.

Unionist

Sorry to be back here late... but thanks, everyone, for the thoughtful opinions and analysis.

Having read them, I'm more concerned than ever that the Harper government will now criminalize sex work - or at least try to - whether or not there's a Charter challenge - and that the very argument of "harm reduction" may be invoked to withstand a Charter challenge.

I see no downside - zero - to Harper for at least trying this route. If he wins, or loses, what percentage of the electorate will rise up in arms? Would the opposition parties even oppose this?

All I see is people hailing the SCC decision and preparing for various forms of legalization, regulation, etc. Are people ready to fight against full criminalization? Who will be the allies and the adversaries?

I'm raising this as a purely political/electoral question. Tell me, anyone, why my concern is unfounded. And tell me whether this discussion needs a separate thread.

susan davis

in vancouver the allies are the city of vancouver, the vancouver police, vancouver coastal health, sex worker support orgs, sex buyers and sex workers...

the adversaries are abolitionist orgs like vancouver rape relief...and that's all.

business improvement associations, residents groups community policing centers....everyone is on board except the abolitionists.

it is a concern for us all that the government may choose to do something irrational but in vancouver we have created a template that other municipalities can use to engage sex workers and find solutions which address the concerns of all stakeholders.

the federal NDP have a strong sex work policy which reflects rights and safety for people working in the sex industry and we hope to build on that.

we are planning our strategies for educating parliamentarians but face a very well funded group of org's in the abolitionists who while claiming to based in feminism, have aligned themselves with the moral right...thus the well funded part. it is profitable to fight against sex worker rights...

it is going to be difficult but we hope that reason and facts will prevail, not moralising and zealot ideology. just read the posts by the blind faithful in the feminist forum here...some people will never believe sex workers are people and have our own minds and right to choose.

we'll see how it plays out i guess...

susie

edit: allies are also feminists and acedemics...which seems to be true of both sides....

pookie

Unionist: If Harper doesn't go the regulatory route, I really think the so-called Nordic model is the best bet. Harper won't want to get into a big fight about criminalizing everyone, and that would lose some supporters.

The Nordic model can be spun in a variety of ways to satisfy diverse constituencies.

 

Bacchus

I coud see Harper creatign a law that dumps it on local municipalities or provinces to craft whatever laws they wish for it

fortunate

mark_alfred wrote:

Coyne gives some thoughts on it.  He talks about how he feels the struck down laws were too broad, and says that the so-called Nordic option likewise is too broad.  Not sure about his suggestion of licensing, though.  I was reading New Zealand's Prostitution Reform Act, which seems interesting.

 

 

I've mentioned this a few times, on this site as well.   The NZ model is ideal for Canada for many reasons, not the least of which are that prostitution was legal exactly as it is in Canada and was controlled by 4 main laws that were exactly like the ones in Canada.   Decriminalization removed those laws, again, just like in Canada, and was replaced by the reform act, which you can see the history of how that evolved in the link you provided.  

Consider our background and culture is more similar to NZ than almost any other country in the world, including long history of unions and workers rights, and it is the ideal fit imo.     

 

 

fortunate

Unionist wrote:

Thanks for the analysis and opinion, Bärlüer. I'm still concerned about Section 7, and here's why in more detail.

In paras 79-92 of [url=http://www.canlii.org/en/ca/scc/doc/2013/2013scc72/2013scc72.html]their decision[/url], the justices reject the argument that the harm to sex workers comes not from the law, but from the person's choice to engage in a risky activity. They essentially say that: 1. Some people (including Bedford, based on her testimony) have no meaningful "choice" other than to engage in sex work. 2. Anyway, it's a legal activity.

Surely what the court says here (at least my point #1) could apply to a host of unlawful activities under many circumstances - like trafficking in illicit drugs, or petty crime, or major crime, etc. Would the court really apply Section 7 to strike down laws that made criminal activities more risky, on the basis that many people are driven to crime by "financial desperation, drug addictions, mental illness, or compulsion from pimps" (maybe substitute "pimps" by "gangs", etc.)?

It seems to me that an important basis of the reasoning in that section is that selling sex for money is lawful. If it were banned (like selling cannabis, or stolen goods, or a myriad of other examples) - how could Section 7 be invoked? Especially for people that choose freely to engage in sex work? And for those "forced" into crime, surely they'd have to plead that on an individual basis if charged, just as would now be the case for other types of illegal activity.

Am I making sense? 

 

 

i think the main point is, of course, that it is a legal activity.    You cannot separate the harm caused by the laws from the fact the laws were created in order to make the legal work nearly impossible to do legally.     In fact, there is one way, with the laws, to work legally:   a sex worker can legally place an ad and discuss rates/services in a phone call (both these upheld in courts of law, btw), and then and only then, she must make her way by herself to the client's location in order to do the appointment.    She goes to his address, usually his home or hotel, where she doesn't know the surroundings or what awaits her behind the door.   Now, of course, i'm not saying that sex work itself is inherently dangerous, because for the majority of sex workers who do outcalls, nothing ever goes wrong.   

 

But it starts off with a power embalance, if you see what i mean.     Add to that, i mention specifically that she must make her own way there.   Under the laws now removed, she is prohibited by law to hire someone, and that does include taxis, to take her there.  Even a taxi driver, under a strict letter of law, could be charged with procuring.    She can't hire a security driver, as he or she would be 'living off the avails'.  Technically speaking a sex worker isn't permitted to pay anyone for services like these.    I think she would be permitted to call someone to let them know where she is going and for them to wait for her to return a call when done.

 

Now, in addition, sex workers are not permitted to work for anyone.  So all those agencies who act as go betweens are illegal.   Even if a sex worker wanted to work but wanted the safety net of working for someone else to arrange appointments, under the law this is not legal.

 

Now, lets add all that up, shake it around, and ask ourselves, if all theses laws existed, then how the heck did things get done?  

 

Simple, most of these laws are ignored by law enforcement.    Pretty much the only one they didn't ignore was public solicitation.   People ask all the time well what now, what will happen with these laws gone, and basically the answer is.  Not much.    Because they weren't enforced people just did it anyway.   Set up incall locations illegally, hired drivers for security illegally, and worked for agencies illegally, and law enforcement turned a blind eye, because even a blind eye could see that letting this happen was the safest way for this legal business to operate.  

The laws were nonsense,.   It shouldn't have taken the SCC to provide a ruling for the obvious.

fortunate

Bacchus wrote:

I coud see Harper creatign a law that dumps it on local municipalities or provinces to craft whatever laws they wish for it

 

This would be ideal.  In fact, in light of the ongoing challenge, many cities have already come up with action plans, and licensing options for sex workers.   Edmonton heavily enforces their 'escort' license and massage attendant license in the massage parlours.  There is no doubt in their minds about what the licenses are for, since they target sex worker ads to find  unlicensed sex workers to fine for working without a license.   Edmonton also has very specific regulations, as do most cities, about where adult entertainment venues can open and operate.    

 

A city in Sask has come up with a more affordable but equally targeting sex workers license, and massage parlours in Toronto require specific licenses, as do the attendants.    The city of Victoria has a license for escorts and attendants as well.    Vancouver and surrounding areas have never enforced the one they have on the books, and seem to be focused, as susi will tell you, on the massage parlour licensing and workers.    Effectively leaving independents alone, hopefully.    

 

Most municipalities are more than ready to address any public concerns.     The media likes to exaggerate the idea of 'brothels', as tho 'bawdy house' means brothel, as in multiple people and 24 hours a day, like a nightclub.    There is more than enough adult entertainment venues already set up, it is unlikely that many if any will open up overnight in residential areas on Dec 25 2014

 

Unionist

fortunate wrote:

i think the main point is, of course, that it is a legal activity.   

I understand that. I raised the concern that the Harper government might try to make it an illegal activity, for ideological and electoral reasons - and that such a ban might not even be deemed to offend the Charter. But even if it ultimately does, Harper may try to score points for trying.

No one else seems to be very concerned about this possibility. I haven't forgotten that the Mulroney government tried to re-criminalize abortion after the SCC decision in 1988, but failed when their bill was voted down in the Senate.

I hope I'm wrong. But I still need to hear why we needn't be concerned about this possibility.

 

Pondering

susan davis wrote:
business improvement associations, residents groups community policing centers....

 it is profitable to fight against sex worker rights...

....just read the posts by the blind faithful in the feminist forum here...some people will never believe sex workers are people and have our own minds and right to choose.

susie 

It is even more profitable to legalize prostitution. There are billions to be made both legally and illegally. 

I totally believe that sex workers are people with their own minds and right to choose to have sex with as many people as they wish to.  Commerce however is regulated. There is no human right to sell sexual services.

Short of a revolution we will have some form of the Nordic model (or fully criminalized prostitution) in Canada by December 2014.  As you pointed out there are different versions of the Nordic model. Generally speaking abolitionists support the Swedish model but I am interested in any modified versions of it. If you have any preferences now would be the time to discuss them.

I suspect the sex workers currently celebrating will rue the day they let Alan Young convince them into this.  They just jumped from the frying pan into the fire. Harper has a majority and he will pass new laws criminalizing prostitution. The court told parliament to do something and that something could include making prostitution illegal.

What would be Harper's motivation for allowing part of his legacy to be the legalization of prostitution?

The Nordic Model is the best legitimizers can hope for. The worst is that he may criminalize prostitutes too. There are conservatives who only want to exclude prostitutes that were coerced or exploited by a third party.

 

Bacchus

I rather suspect he will do what I said upthread and merely let the provinces/cities do it themselves

 

And any criminalization will fail at the SCC

Pondering

fortunate wrote:
People ask all the time well what now, what will happen with these laws gone, and basically the answer is.  Not much.

I think quite a bit will happen. Harper will pass new laws before Dec. 2014. Prostitution will become illegal on the basis that it harms women. Hopefully the buying not the selling will be criminalized.

Within the next few years marijuana will most likely be legalized leaving police with lots of free time. Because the prostitution laws will still be relatively new it will be the perfect target for law enforcement to justify themselves, plus, they will be rescuing women instead of busting pot farms. Closing the 15 massage parlours in Montreal was very popular. The communities are happy as are the real massage therapists so the raids got a lot of positive press.

Harper is not alone either. The NDP refused to adopt legalization as policy. I don't think Mulcair will go for it and apparently it was considered devisive. I would be shocked if Trudeau didn't go with the Nordic Model. He's doing the whole family man thing, he has a daughter, a wife involved in fighting violence against women and eating disorders. With the NDP and the Liberals behind him on it Harper would be crazy to reject the Nordic Model which is being promoted within his own party. Harper is getting a chance to look socially progressive and please his base and be protecting women all at the same time. There is no downside to this for Harper.

Fall 2014 will see Canada criminalize the purchase of sex.

 

Bacchus

Not a chance. He will make it a provincial/city thing and save himself the hassle

 

Bärlüer

Re: provincial/municipal regulation (I'm especially emphasizing municipal regulation, which seems most likely to see renewed attention):

Don't forget that what's at stake here is revision of the provisions of the Criminal Code pertaining to prostitution. This is criminal law, a federal power. The issue for the federal legislator is: what criminal law provisions do they want in the Criminal Code (if any) with respect to sex work. There won't be any delegation of power to other levels of government in this respect—the issue is criminal law, which is the sole purview of the federal legislator.

That doesn't mean that provinces and municipalities can't regulate many aspects of sex work—in fact, they have all the tools at their disposal to regulate sex work the way they see fit right now.

cco

Bärlüer, you likely know the ins and outs of the constitution better than I. Would it be possible for Parliament to pass a criminal law that nonetheless required the provinces to opt in (or gave them the ability to opt out)? I seem to recall something like this was done with alcohol prohibition, but I'm not sure if that was criminal or just regulatory.

Not that I think Harper would do this, when there's so much political hay to be made over "values" to help distract from the Senate.

Bärlüer

Hmm... somewhat complicated question (and limited time on my part)...

What you refer to is the case law surrounding the Canada Temperance Act, which as it turns out was responsible for defining much of the early contours of constitutional law in Canada. The Act, which enabled local referendums deciding on the banning of sale of alcohol, was found constitutional (under the federal power over what is called "peace, order and good government"). But it wasn't criminal law.

Actually responding to your question would require more time/research/etc. than I can muster at the moment, sorry...

What I see as more probable (in relative terms—not saying it is probable per se) as far as local application goes would involve the policing and prosecution aspects, over which provinces have definite control. (Cf. decision of Quebec AG, upon election of PQ in 1976, to stop prosecuting doctors performing abortions.)

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