Supreme Court ruling stirs national debate on sex work

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On December 20, 2013, the Supreme Court of Canada released a landmark decision on Canada's prostitution laws (Canada (Attorney General) v. Bedford). This decision represents a huge victory for Canada's sex workers by recognizing that the existing legal framework increases the risk of harm to the lives and safety of individuals working in the industry. The decision has, however, quickly become controversial with anti-prostitution advocates vigorously arguing that the Court has effectively endorsed the exploitation of women. This criticism is misdirected because the Bedford decision is not about whether prostitution should be legal in Canada -- prostitution has always been legal here. If you don't like it, complain to Parliament.

At issue in Bedford were three provisions of the Criminal Code that were purportedly enacted to protect the public from the "nuisances" of prostitution and to protect sex workers from exploitation. These poorly crafted laws include: section 210, which makes it an offence to keep or be in a bawdy‑house; section 212(1)(j) which prohibits living on the avails of prostitution; and, section 213(1)(c) which prohibits communicating in public for the purposes of prostitution. 

Terri-Jean Bedford, Amy Lebovitch and Valerie Scott challenged these provisions of the Criminal Code arguing that the restrictions violated their rights under section 7 of the Canadian Charter of Rights and Freedoms, which guarantees individuals the right to life, liberty and security of the person. Simply put, even though prostitution itself is legal, the laws put sex workers at greater risk of suffering violence or other abuse because they could not legally take steps to protect themselves (i.e. through hiring security guards and drivers, screening potential clients, negotiating safer terms of engagement such as requiring condom use, or working in a safe space). This contributed significantly to unsafe working conditions and compromised their Charter rights to security of the person.

Getting around a binding legal precedent

This is not the first time that Canada's prostitution laws have been challenged as being unconstitutional. In 1990, the Supreme Court of Canada upheld the "bawdy house" and "no communicating" laws in the Prostitution Reference case. Accordingly, the Supreme Court of Canada addressed the preliminary issue of whether or not the constitutionality of these laws could be revisited and whether a lower court could ignore a binding precedent. Notably, it determined that a lower court could do so where a new legal issue was raised, there was a significant development in the law, or there was a change in the circumstances or evidence that shifted the parameters of the debate.

Since the Prostitution Reference dealt with (economic) liberty and not security of the person, the Supreme Court of Canada found that the lower court was entitled to rule on whether these laws violated the right to security of the person under section 7 of the Charter (i.e. this was a new legal issue). Further, section 7 contains qualifying language that any denial of a right must be in accordance with the "principles of fundamental justice." This means that a law cannot be vague, arbitrary, overbroad, or have a grossly disproportionate effect in relation to its purpose. If so, it will violate the norms of a free and democratic society and be "inherently bad." The latter three principles of fundamental justice have only been developed in the years since the Prostitution Reference and therefore the prostitution laws could be reviewed now in light of these newer principles.

A law will be arbitrary if there is no connection between the object of the law and its effect on an individual; a law will be overbroad if it goes too far and interferes with some conduct that is unrelated to the purpose of the law; a law will be grossly disproportionate if it is rationally connected to its purpose but has a severe or harmful effect on an individual that is "out of synch with the objective of the measure." Laws are evaluated against their original purposes and cannot be reframed to suit the analysis.

Why the prostitution laws are unconstitutional

Each of the three prostitution laws being challenged in Bedford directly affected sex workers' security rights, violated one of the principles of fundamental justice and on balance could not be justified by some other positive or beneficial impact on society.

First, the Supreme Court of Canada struck down the "bawdy house" law because the impact on a sex worker's security by being forced onto the street or to go to a client's home (as opposed to setting up a business indoors) is grossly disproportionate to the goal of preventing noise or disruption to the community. Indeed the evidence showed that complaints about nuisance from indoor prostitution establishments were rare. The Chief Justice wrote at paragraph 136 of her decision:

Parliament has the power to regulate nuisances, but not at the cost of health, safety and lives of prostitutes. A law that prevents street prostitutes from resorting to a safe haven such as Grandma's House while a suspected serial killer prowls the streets, is a law that has lost sight of its purpose.

Second, the "living off the avails of prostitution" law was intended to target exploitative relationships, but it was drafted so broadly that it also captures non‑exploitative relationships that bear no relationship to the objective of protecting sex workers. In fact, it prevents sex workers from entering into relationships which would enhance their safety such as with bodyguards or drivers. It further criminalizes anyone who has any business with a sex worker such as a receptionist or accountant. Accordingly, this law was struck down as being overbroad.

Third, the purpose of the "no communication in public" law was to prevent the "nuisance" of noise, street congestion and exposing children or communities to the solicitation of sex workers; however, by preventing "public" communications, sex workers were forced into the shadows of dark alleys and prevented from taking the time to assess the risks associated with a prospective client through face-to-face screening. They were also prevented from negotiating for the use of condoms or safe houses. The Court struck down this law as having a grossly disproportionate impact on the lives and safety of street prostitutes.

The Attorneys General shockingly attempted to argue in Bedford that the security interests of sex workers were not breached by any of the three prostitution laws because the sex workers chose to engage in a risky activity and therefore caused their own harm. The Court firmly rejected this causation argument noting that for some, choice was illusory and clarified that the relevant question was whether by enacting the laws the state had made the activity more dangerous, which it had.

Implications of the Bedford decision

This case is a victory because it recognizes that the current legal regime of prostitution in Canada has penalized and caused harm to the very individuals it was supposed to protect. It does not, however, lay the prostitution debate to rest nor does it ensure that sex workers will be any safer in the short term.

Recognizing the risks of complete deregulation at this time, the Court suspended the effect of its declaration for one year, giving Parliament space and time to craft a new approach to the regulation of prostitution. This means that it is business as usual for the next year. It also means that our legislature may come back swinging with proposals to outright ban prostitution.

Knowing that a ban on prostitution has the potential to further marginalize and place sex workers at risk by forcing it into the underground economy, we can only hope that law‑makers take the time to understand the nuances of the issue and find a solution which will reflect the practicalities of the "world's oldest profession" while ensuring that the sex workers they are so concerned about still have the right and ability to protect themselves.

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Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to probono@rabble.ca. Read past Pro Bono columns here.

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