Constitutional Challenge of the Prostitution Laws

The following is our attempt at providing a thorough and concise summary of the following legal document:

Canada (Attorney General) v. Bedford, 2012 ONCA 186. Date: March 26, 2012. Court of Appeal for Ontario: Doherty, Rosenberg, Feldman, MacPherson and Cronk JJ.A BETWEEN Attorney General of Canada (Appellant) and Attorney General of Ontario (Appellant) and Terri Jean Bedford, Amy Lebovitch, and Valerie Scott (Respondents)

Please note that the original legal document can be found at:

http://www.canlii.org/en/on/onca/doc/2012/2012onca186/2012onca186.html

 

Ms. Bedford, Ms. Lebovitch and Ms. Scott brought an application to the Superior Court of Justice under the Rules of Civil Procedure, seeking declaration that Sections 210, 212 (1)(j), and 213 (1)(c) of the Criminal Code are unconstitutional. The sections are as follows:

210. (1) Every one who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

(2) Every one who

(a) is an inmate of a common bawdy-house

(b) is found, without lawful exercise, in a common bawdy-house, or

(c) as owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or control of any place, knowingly permits the place or any part thereof to be let or used for the purposes of a common bawdy-house,

is guilty of an offence punishable on summary conviction.

 

212. (1) Every one who

(j) lives wholly or in part on the avails of prostitution of another person,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

 

213. (1) Every person who in a public place or in any place open to public view

(c) stops or attempts to stop any person or in any manner communicates or attempt to communicate with any person for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute

is guilty of an offence punishable on summary conviction.

 

The respondents (Bedford, Lebovitch and Scott) argued that these provisions deprive them of the right to life, liberty and security of the person protected by section 7 of the Canadian Charter of Rights and Freedoms, that the deprivation is not in accordance with the principles of fundamental justice, and that the provisions cannot be justified under Section 1 of the Charter. They also argued that Section 213(1) of the Criminal Code violates the guarantee of freedom of expression in Section 2(b) of the Charter and cannot be justified under Section 1 of the Charter.

 

The sections referred to in the Charter are as follows:

  1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
  2. Everyone has the following fundamental freedoms:

(b) freedom of…expression

  1. 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.

 

The application judge held that these provisions are unconstitutional and must be struck down because they are not in accordance with the principles of fundamental justice preserved in section 7 of the Canadian Charter of Rights and Freedoms.

The justification of the application judge’s ruling regarding why each of the provisions are unconstitutional can be summed up as follows:

Section 210 – The application judge concluded that this provision is really to combat neighbourhood disruption and safe guard public health and safety. This provision has a drastic impact on the respondent’s security of the person by preventing them from working in the relative safety of a permanent indoor location.

Section 212 – The application judge concluded that this provision really applies to those who exploit prostitutes.

Section 213 – The application judge concluded that this provision is really only in place to curtail street solicitation and social nuisance.

The application judge’s remedy to is to strike down the living on the avails and communication provisions (Sections 212 and 213). She provided the remedy of striking down the prohibition on bawdy-houses for the purpose of prostitution by striking the word “prostitution” from the definition of  “common bawdy house”. Therefore, prohibition on bawdy-houses for “acts of indecency” still apply; however bawdy-houses can be used for purposes of prostitution.

 

Government Response

The Attorney General of Canada and Attorney General of Ontario opposed the application on two principal grounds. They referenced the Supreme Court’s decisions regarding the prostitution laws in the Prostitution Reference (1990) and coupled it with the principle of stare decisis. Stare decisis is the principle of binding precedent. In 1990, the Supreme Court held that the provisions of the Criminal Code (sections 210 and 213(1)(c)) did not violate the Charter. This should set the binding precedent to any further challenge. This principle can be basically summed up in Pilate’s response to the chief priests in John 19:22, “What I have written, I have written.”

The second principal ground of opposition from the Attorney General was that the respondents failed to meet their evidentiary burden of proving a violation of their section 7 Charter rights. The Attorney General argued that the challenged laws do not create the risk to prostitutes; rather prostitution itself, is inherently risky.

 

Court of Appeal for Ontario Response

The court of appeal was in agreement with the Attorney General of Canada, that regarding section 213 (1)(c) the application judge erred on the principle of stare decisis. Therefore, this provision currently stands as is. However, an appeal from the respondents regarding this ruling is allowed.

The court of appeal has recognized that the Prostitution Reference of 1990 may need to be revisited by the Supreme Court of Canada. Since 1990, the number of recognized “principles of fundamental justice” referenced in under section 7 of the Charter has expanded. The court of appeal cites that the Supreme Court was vague in articulating how the prostitution provisions did not violate the “principles of fundamental justice” in 1990. Moreover, Parliamentary response to prostitution has been inconsistent and unclear. Therefore, the application judge was left to evaluate whether the prostitution provisions infringed upon the “principles of fundamental justice” of: arbitrariness, overbreadth, and gross disproportionality.

 

An explanation of these terms is as follows:

Arbitrariness ­– is a law arbitrary? This asks whether a law has no relation to, or is inconsistent with, its legislative objective.

Overbreadth – is a law overbreadth? This asks whether a law deprives a person of his or her rights (as per section 7 of the Charter) more than is necessary to achieve the legislative objective.

Gross Disproportionality – is a law grossly disproportionate? This asks whether the deprivation of a person’s rights (as per section 7 of the Charter) is so extreme that it is disproportionate to any legitimate government interest.

 

With respect to section 210 of the Criminal Code, the court of appeal sided with the application judge’s decision that this provision is overbroad and grossly disproportionate. Therefore, the court of appeal ruled that the current bawdy-house prohibition is unconstitutional and must be struck down. However, the declaration of invalidity is suspended for 12 months to provide Parliament an opportunity to draft a Charter-compliant provision, if Parliament so chooses.

A Charter-compliant provision is an appeal to the Supreme Court to fully reconsider the purpose and effect of the criminalization of bawdy-houses for the purposes of prostitution. This basically means a re-visitation of the ruling as per the Prostitution Reference of 1990.

The court of appeal disagreed with the application judge in striking down the living on the avails provision. The court of appeal agreed with the application judge that the living off the avails of prostitution provision is grossly disproportionate. Therefore, they suggest a remedy that there be a prohibition against living on the avails of prostitution in circumstances of exploitation. As such, they conclude that the following “reading in” to the living on the avails provision will “cure the constitutional infirmity” of Section 212(1)(j) of the Criminal Code:

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…

Of the 5 court appeal judges, 3 were in majority of supporting the document of appeal, whereas 2 disagreed with their colleagues with respect to the communicating provision. The dissenting judges believed that the communicating for the purposes of prostitution is unconstitutional and should be struck down since they believe it to deny prostitutes the right to security by not allowing them to properly screening clients. This is especially within the interest of the “most vulnerable” prostitutes (those who work on the streets).