A Step in the Right Direction – Bill C36 passes third reading

This week, Bill C36, the amendment to the Canadian Criminal Code on prostitution-related offenses, passed third reading in the Senate and requires royal assent to become law. It is likely that Bill C36 will become law by December, given the one-year deadline that was imposed by the Supreme Court of Canada when it struck down the three prostitution-related provisions of: a) Keeping a common bawdy-house; b) Living wholly or in part on the avails of prostitution of another person; c) Communicating in a public place for the purpose of engaging in prostitution.

There is some controversy as to whether the revised prostitution-related law will be subject to another constitutional challenge. Recently Benjamin Perrin made a contribution in the Globe and Mail stating that whether Bill C36 is constitutional depends on “how effectively it is implemented and when a case is brought forward.” (Click here for article) Although Perrin brings up a few valid points in his contribution to the Globe and Mail, whether a law is constitutional depends not on how well it is implemented and the cases brought forward using the law in question, but on whether the law violates specific rights and freedoms that are outlined in the Canadian Charter of Rights and Freedoms.

The Supreme Court of Canada struck down the three aforementioned prostitution-related provisions because they viewed them to have arbitrary, overbroad and/or grossly disproportionate deprivations to the specific right to security. The implementation of the new law and further research on how it impacts the multifaceted nature of prostitution will provide good information to law enforcement, government, academia and the general public interested in the issue. Moreover, the data gathered from monitoring the implementation of the new law and cases brought forward could potentially serve as evidence to either side of a future constitutional challenge. But whether the new law is constitutional hinges on whether sex worker advocates (or others) are able to make a case that the new law (or components of the new law) violates specific rights and freedoms outlined in the Charter of Rights and Freedom. If a convincing case can be made for a constitutional challenge, then the courts could very well hear a challenge of the revised prostitution-related law, regardless of how well the law is being implemented and what cases involving the law in question are brought forward.

But at the end of the day, it is safe to say that both sides agree that prostitutes should not be criminalized for selling sex, regardless of the reasons why they do so. Moreover, it may also be safe to say that violence and exploitative circumstances prostitutes face mostly stem from the demand side of the sex trade. As such, Bill C36 is a step in the right direction as it decriminalizes those who prostitute and criminalizes the purchasers of sex. The Government of Canada has also committed $20 Million to be put towards initiatives and programs that facilitate those who desire to exit sex trade, thereby allowing vulnerable individuals a viable alternative to the violence and exploitation they may face in the sex trade.

Proposed legislation in Canada on the issue of prostitution – Bill C36

Prostitution is the practice of engaging in sexual activity with someone for payment. In Canada, prostitution is not illegal. However, there are activities related to the sex trade that are offenses under the Criminal Code of Canada. Such activities include:

  • Keeping a common bawdy-house (also known as a brothel) (Section 210)
  • Knowingly transporting another person to a common bawdy-house (Section 211)
  • Procuring and living on the avails of prostitution (Section 212)
  • Communicating in a public place for the purposes of prostitution (Section 213)

In 2009, Terri-Jean Bedford, Amy Lebovitch and Valerie Scott (sex trade workers in Canada) undertook the issue of arguing that Canada’s laws regarding prostitution-related activities were unconstitutional. Alan Young, professor of law at Osgoode Hall Law School, represented the sex trade workers in court, and specifically made the case that the following sections of the Criminal Code of Canada violated sex workers constitutional right to freedom and security:

  • Keeping a common bawdy-house (Section 210)
  • Living on the avails of prostitution (Section 212(1)(c))
  • Communicating in a public place for the purposes of prostitution (Section 213(1)(c))

In September 2010, Justice Susan Himel issued her decision to strike down Sections 210, 212(1)(c) and 213(1)(c). The Attorney General of Canada and Attorney General of Ontario appealed the decision. The appeals court upheld the ruling of Justice Himel on Sections 210 and 212(1)(c), however disagreed with her ruling on Section 213(1)(c). The case was eventually brought to the highest court in Canada to be heard. In Dec 2013, the Supreme Court of Canada found all three sections (Section 210, 212(1)(c) and 213(1)(c)) of the Criminal Code to be unconstitutional.

The Supreme Court gave the Canadian Government 1 year to create a legislative response (create new law(s)) in line with the ruling). In March 2014, the Department of Justice issued a public consultation on prostitution-related offences in Canada with the intent of creating new legislation that would accommodate views held by Canadians. From this public consultation Bill C-36 was introduced in Parliament on June 4, 2014. Bill C-36 is currently in the second reading stage.

The objective of Bill C-36 is to reduce the demand for prostitution by discouraging the entry into prostitution and deterring participation in prostitution, with the ultimate endpoint of abolishing it so that the harms of the practice no longer exist. Bill C-36 views prostitution as a form of sexual exploitation that negatively impacts women and girls, and therefore criminalizes those who purchase sex, while protecting those who sell sex.

Bill C-36 proposes to criminalize:

  1. The purchase of sexual services for consideration or communicating in any place for the purpose of purchasing sexual services
  2. Advertising the sale of sexual services in print media or advertisement on websites
  3. The receipt of financial and/or material benefit from the prostitution of others in exploitative circumstances (which includes exploitative participation in business activities involving prostitution where third parties profit). Exploitative circumstances would include the use of threats, violence, intimidation, coercion, abuse of trust, power or authority, and the provision of intoxicating substances
  4. The purchase of sexual services, but not the sale of sexual services. Those who sell their own sexual services will be treated as victims who need support and assistance
  5. The procurement of sexual services, where procurement constitutes persuading or causing a person to offer sexual services; to recruit, hold, conceal, or harbour a person to offer sexual services; and to exercise control, direct or influence the movement of a person for the purpose of facilitating the purchase of sexual services
  6. Communicating for the purposes of selling sexual services in public places, or in any place open to public view, that is or is next to a place were persons under the age of 18 are reasonable expected to be present and therefore could be exposed to the correspondence.

The proposed bill ultimately provides focus to law enforcement to direct attention to purchasers of sexual services, as well as on third parties who exploit individuals to sell sexual services. As such, Bill C-36 does not prevent those who choose to sell sex from doing so in fixed indoor locations, or hiring bodyguards or drivers, who may enhance their safety.

Such proposed legislation to criminalize the demand-side of prostitution is not unique to Canada, as many other countries currently have such legislation in place, i.e. Sweden, Norway, Iceland, Ireland and France.

Further information regarding Bill C-36 can be found by accessing the following links:



Criminalizing the demand side of prostitution in France


The National Assembly of France has passed a bill that will criminalize the purchase of sexual services. This is similar to the law Sweden enacted in 1999.

Although there is still controversy regarding the Swedish law, the Swedish government reports that since the inception of the law, prostitution and the number of foreign women trafficked into Sweden for prostitution has decreased (read more about the Swedish law).

Once the French Senate approves the bill, those convicted of purchasing sexual services will be subject to fines ranging up to 1500 euros. Repeat offenders may incur fines up to 3750 euros. Offenders are also required to attend education and awareness courses on the harmful effects of prostitution. Importantly, the bill also provides social, educational and professional assistance for those seeking to exit the sex trade.

A passing of such a law in France is welcomed, given the inextricable link between human trafficking and prostitution (see previous post). As more and more governments around the world begin to realize that human trafficking for sexual exploitation and prostitution cannot be separated into distinct entities, the more we empower victims of sexual exploitation to take back control of their own lives. No longer will those who are sexually oppressed be looked upon as merchandise by purchasers or ignored by society. Instead, those who are sexual exploited will be viewed as human beings in need of compassion and viable alternatives and assistance to exit the sex trade.

The movement behind the Swedish model of criminalizing the demand-side of prostitution

(The following text highlights points laid out in Arthur Gould’s manuscript entitled: The Criminalisation of Buying Sex: the Politics of Prostitution in Sweden, Jnl Soc Pol 30 (3): 437-456)

A Commission to investigate the sex trade in Sweden was proposed by the Minister of Equality in 1993, with the rationale that prostitution had changed its character and therefore could no longer be examined at the national level. The investigation of this Commission led to the following findings:

  • The damage prostitution incurred affects not only the prostituted individuals but society at large
  • Those most likely involved in prostitution were sexually abused
  • The view that John’s not only thought they were entitled to sex services, but also disregarded a woman’s right to human and decent treatment
  • Prostitutes often abused drugs or alcohol
  • Sweden’s superior welfare system, greater gender equality and effective social work programs contributed to the country’s low numbers of prostitutes
  • With the increase in technological development overseas, the potential for sex tourism, pornography, trafficking of women and the sexual exploitation of children would increase
  • Visits to Oslo, Copenhagen, Helsinki, St. Petersburg, Tallin, Brussels and Amsterdam for insight trafficking of Eastern European women to fuel prostitution shocked the members of the Commission. The Commission was appalled at the liberal views these countries had regarding prostitution. The Commission argued the liberal view was “clearly wrong-headed and dangerous” and dismissed the liberal view in its entirety


What is the liberal view towards prostitution that shocked the Swedish Commission?

It is a view that there is a distinction between forced and voluntary prostitution and that people have the right to sell their bodies if they wished to do so.

From the investigation, the Commission recommended to:

  • Criminalize prostitutes and those purchasing their services

The rationale for the recommendation:

  • Prostitution is in conflict with equality between men and women
  • In other countries were a liberal view of prostitution is accepted, it has increased
  • The social costs of prostitution are damaging


How was the Commission’s report received?

Very few organizations supported the report and recommendation. Instead, individuals found themselves either:

  • Supporting full criminalization of prostitutes and purchasers
  • Supporting only the criminalization of the purchasers, or
  • Supporting no change in current legislation

Those who supported the criminalization of the purchasers argued that punishing prostitutes was old-fashioned moralism and represented the hypocritical morality of a patriarchal society. Professor Sven-Axel Mansson & colleagues played a large role in endorsing the criminalization of purchasers. He argued that if Sweden took the approach of criminalizing prostitutes it would align itself with some offensive regimes. However, by focusing on criminalizing the purchasers, Sweden would have a unique approach to addressing prostitution. Mansson and many others insisted that criminalizing the purchasers would make Sweden unique and that other countries would likely emulate the Swedish model.

Ultimately, the most powerful and compelling argument for criminalizing the purchasers was the insistence that prostitution degrades women and is a form of violence against women. Something that cannot be tolerated in a society that promotes equality between men and women.

In addition to the appeal of enacting unique legislation and the equality and violence arguments regarding prostitution, there was also an element of  “fearing the foreign” that came into play. The Commission found that there was a growing number of Eastern European prostitutes entering Western Europe and the notion that this influx of foreign prostitutes into Sweden may increase the risk of infection also entered into the public debate. But it was not only the notion of increased risk of infection that entered people’s minds. Sweden was regarded as a social and economic success at the time and therefore Swedes felt a justifiable sense of “national pride and superiority”. Not only did Swedes enjoy a high standard of living, security and health, women in Sweden had also achieved a higher degree of equality than anywhere else in the world. Therefore, the potential of foreign threat and influence on Swedish national identity and values (no matter how irrational and exaggerated) were not something to be taken lightly.

Interestingly, the liberal view that prostitution was a voluntary choice and was not a form of violence and oppression was disregarded. Although this view was quite prevalent in many Western European countries, there was no support for liberal arguments and practices from the political parties at the time.


The outcome

In the end, a government proposal to criminalize purchasers of sexual services was incorporated into a package of measures dealing with violence against women (Kvinnofrid ­– Women’s Peace – Regerings proposition, 1997/1998). Following a National Legislative Assembly (Riksdag) debate, which outlined many of the points outlined above, there was a 2:1 in favour of the government’s proposal.

Although the strength and solidarity of Swedish feminists played a critical role in the passing of criminalizing the demand legislation, it is important to note that the feminist movement had its roots in a culture that was decidedly anti-liberal. This was (and is) in stark contrast with feminists in the UK, other Western European countries and North America. Sweden’s sense of national pride and cultural identity as a leader in social, economic, gender equality and health care policies, in addition to an underlying fear of foreign threat and influence of liberal ideologies, also played a crucial role in the passing of criminalizing the demand legislation.

As such, Swedish continues to be a leader in gender equality policies, where it is accepted that gender equality will remain unattainable as long as men buy, sell and exploit women and children by prostituting them. Moreover, it is also accepted that if men did not regard it as their self-evident right to buy and sexually exploit women and children, prostitution and trafficking in human being for sexual purposes would not exist. Therefore, countries around the world will continue to look to Sweden for policies on how to effectively address gender equality, prostitution, human trafficking, and violence against women and children.

Is there a link between human trafficking and prostitution?

A recent paper published by SY Cho, A Dreher and E Neumayer in the journal of World Development addresses the question of: Does legalized prostitution increase human trafficking?

This study was based out of the London School of Economics in an attempt to understand the impact domestic policies have on aspects of globalization. To address this, the authors focused in on determining how a domestic policy, such as legalizing prostitution, can impact the incidence of human trafficking inflow.

According to the United Nations Office of Drugs and Crime (UNODC), 79% of human trafficking involves sexual exploitation through prostitution, where the majority of those who are being sexually exploited are women and children.

Although the qualitative literature makes the case that legalizing prostitution increases human trafficking, systematic, rigorous research is lacking. As such, Cho et al, applied economic principals to extensive data collected by the UNODC, which involved cross-country information on the reported incidence of human trafficking in 161 countries. Through various regression analyses on the data provided by the UNODC, it was determined that countries where prostitution is legal experience a larger reported incidence of human trafficking inflows.

To validate the conclusion from their empirical analyses, three country case studies were analyzed. These three countries were: Sweden, Germany and Denmark.

Sweden criminalized the purchase of prostitution in 1999. Germany further legalized prostitution by allowing brothels to operate in 2002. Denmark decriminalized prostitution in 1999, where self-employed prostitution is legal, however brothel operation is illegal (the approach Sweden had in place prior to 1999).

Due to the lack of human trafficking data prior to 1999 in Sweden, it is difficult to definitively determine whether or not human trafficking inflows were reduced in Sweden after new prostitution legislation took effect in 1999. However, a study by Ekberg in 2004 estimated that the number of prostitutes in Sweden decreased from 2500 (in 1999) to 1500 (in 2002), with street prostitution decreasing 30-50% after the law of criminalizing the purchase of sex came into effect.

A comparison between Sweden and Denmark revealed that decriminalizing prostitution did not decrease human trafficking in Denmark. In 2004, it was reported that in Denmark there were 2,250 trafficked victims compared to 500 in Sweden. It is also important to note that the population of Sweden is 40% larger than Denmark and the number of prostitutes in Denmark are ~3-4 more than that in Sweden.

In Germany, prostitution is recognized as a profession, where ~150,000 people work as prostitutes. Germany has one of the largest prostitution markets in Europe. In 2004, it was estimated that there are ~32,800 victims of human trafficking in Germany. It was further demonstrated in a study by Di Nicola in 2005, that the number of human trafficking victims increased from a min-max estimate of 9,870 –19740 in 2001 to 11,080 – 22,160 in 2003 and 12,350 – 24,700 in 2004. These data support the results obtained by Cho et al’s empirical analyses.

Therefore, the recent study by Cho et al demonstrates that on average, legalizing prostitution gives rise to a larger degree of reported human trafficking inflows. This is further corroborated with statistical evidence from three country case studies involving Sweden, Denmark and Germany.

A Canadian Perspective on Prostitution

We have provided a summary of the Government of Canada report entitled: The Challenge of Change: A Study of Canada’s Criminal Prostitution Laws below.

The original document can be downloaded from the following link:


Pursuant to Standing Order 108, a subcommittee was established to discuss the prostitution laws and present its observations and recommendations. This subcommittee was composed of 2 members of the Conservative Party, 2 members of the Liberal Party, 1 member of the Bloc Quebecois, and 1 member of the New Democratic Party.

The subcommittee outlined that they would be dealing with matters involving adult prostitution from the outset. They outlined that adult prostitution is not illegal in Canada, yet most of the activities surrounding prostitution make it impossible to engage in without committing a crime. They also note that those most likely to be criminalized are primarily vulnerable women facing various hardships, such as poverty, homelessness and drug dependency. Moreover, these individuals most often engage in the most dangerous type of prostitution: street prostitution.

The subcommittee heard testimony from ~300 witnesses ranging from sex workers to law enforcement to obtain a profile of prostitution in Canada. They present that although it is very difficult to estimate the numbers, there are many types of prostitution in Canada. It was clearly noted that street prostitution only accounts for a very small percentage (5-20%) of all prostitution activity in the country. Coupled with the variation in prostitution type is the wide range of settings where prostitution takes place. Thus, the prostitution scene in Canada was described as situations where females are in the position of “sexual slavery or survival sex” (due to homelessness, poverty, to cope with a drug habit, mental illness or a violent past) to “bourgeois styles of the sex trade, where both adults are consenting.”

This led to the issue of choice. Three circumstances emerged from the testimonies the subcommittee heard: a) individuals choose to engage in sex work on their own free will; b) individuals are forced into sex work from a third party; c) the lack of alternatives lead an individual to engage in sex work.

This ultimately led to shaping what the demographic profile of prostitution is in Canada. However, there is a caveat of this demographic as much of the research and not-for-profit, public and law enforcement interactions are with street prostitutes, which only make up a small percentage of prostitutes in Canada. What was mentioned in the report is that based on information the subcommittee received from witness testimony, the first experience with prostitution is between the ages of 14-18 years of age, where females represent 75-80% of individuals practicing prostitution. Of the females that are involved in prostitution ~70% are of Aboriginal origin. The 20% of individuals engaging in prostitution, but are not females, include males, transvestites and transgendered person. There was also clear indication from witness testimony that most male off-street prostitution takes place in private establishments and clubs.

In establishing the demographic of prostitution in Canada, the discussion then led to health and addictions, violence and organized crime. Of the number of witnesses the subcommittee heard from there is reason to believe that for some individuals the relationship between drugs and prostitution are inseparable, especially at the street level. Moreover, it was cited that individuals who engage in off-street prostitution are less likely to use drugs given that it is strongly discouraged by establishments and escort agencies. As such, prostitutes who are addicted to drugs are not surprisingly in poor health and often are the most marginalized and are targeted for crimes of violence.

The violence directed towards prostitutes is not only something that street prostitutes experience, however the information received by the subcommittee suggested that indoor prostitution is safer than street prostitution. Of the homicides involving prostitutes, it was pointed out that 75% of individuals who kill prostitutes are the clients themselves. Some witnesses that the subcommittee heard from also had the view that the rise in the number of prostitute homicides was due to the addition of section 213 of the Criminal Code (prohibiting communication in a public place for the purposes of prostitution). Witnesses further attributed that the violence against prostitution stems from the stigma media creates and the attitude of law enforcement.

Interestingly, the report points out that although the majority of public believes that prostitution is driven by organized crime, this was not supported by any testimony heard by the subcommittee. Moreover, although the majority of the public also believes that those engaging in prostitution are forced into it by a third party, this is by no means in the majority, with respect to adult prostitution. Paradoxically, the subcommittee does acknowledge that there is “no doubt trafficking in persons is at play in prostitution activities, and that trafficked persons are among the most vulnerable in prostitution.” (Aside: Based on what we know about human trafficking today, many international and government organization point to the existence of internationally organized crime networks that are established to traffick individuals around the globe for sexual exploitation or forced labour).

Aside from the demographics and causes of prostitution, the testimonies the subcommittee heard from contradicted each other with respect to the effects of prostitution. Individuals held the view that prostitution is an act of violence against all women, to prostitution is an exchange of sexual services between consenting adults, which is not a problem in and of itself. Therefore, the subcommittee stipulated that it is not the act of prostitution that threatens communities, but the criminal activities individuals are involved in. As such, the effect of prostitution in and of itself on the individual is highly controversial ranging from moralistic to liberation/self-control. However, it was noted by the subcommittee that street prostitution does impact the community in that it increases neighbourhood traffic, noise levels, and litter, while decreasing business, safety, and wellbeing.

Stemming from the discussion involving the profile, causes, and effects of prostitution the subcommittee then turned to addressing the efficacy of the prostitution laws in Canada. The information the subcommittee received led to the conclusion that the laws need to be changed. The majority of witnesses the subcommittee heard from thought that section 213 was not effective in promoting the safety of prostitutes and communities. There was much discussion around the disparity of charges, where prostitutes themselves were more likely to be charged than clients. It was also noted that section 210 – 212 were rarely enforced and accounted for only a very small percentage (~1-10%) of all prostitution-related incidents. Witnesses who were sex workers or not-for-profit organizations advocating sex workers, made the case that section 213 particularly decreased their safety as it pushed prostitutes into remote areas out of touch with resources and did not allow them to effectively screen their clients. These individuals also conveyed to the committee that: a) Section 210 (prohibiting the operation of a bawdy house) prevented prostitutes from creating a stable, safe environment and complicated the social lives of individuals who decide to sell sex from their homes; b) Section 211 (prohibiting the transport of an individual to a bawdy house) prevented prostitutes from establishing working relationships with individuals they felt could safely transport them from one place to another; and c) Section 212 (prohibiting living wholly or in part on the avails of prostitution of another) prevented prostitutes from seeking out a relationship with a manager or employer that could benefit them. Therefore, the overarching position sex worker and sex worker advocate witnesses took was that the current prostitution laws decrease their personal safety and security, jeopardizes their economic security, and increases the stigma towards their profession.

The discussions stemming from the prostitution laws in Canada led the subcommittee to hear testimony from individuals who spoke about the laws in Sweden, Germany, The Netherlands, Australia, and New Zealand and the outcome of these laws. From the testimonies on prostitution laws from other countries, the subcommittee felt that these laws would not provide a solution to prostitution in Canada, and that more information was necessary.

The subcommittee therefore outlined a series of recommendations. All members of the subcommittee agreed that the Government of Canada should ensure that commercial sexual exploitation of minors and trafficking for purposes of sexual exploitation should be subject to severe penalties.

The subcommittee all agreed that the status quo is unacceptable as they are unequally applied.

It was further recommended that: a) the Government of Canada establish and develop education campaigns and programs to prevent people from entering prostitution and raise awareness of young people and children, and establish exit programs for prostitutes; b) the Government of Canada fund research to obtain a clearer picture and gain a better understanding of prostitution in Canada; c) the Department of Justice coordinate research on prostitution with other levels of government, institutes, NGOs and sex workers in other countries in an effort to develop a Canadian approach to addressing prostitution; and d) measures be taken to improve the safety of individuals selling sex and assisting these individuals to exit prostitution through income support, transfer payments, education and training, poverty alleviation, health and addiction treatments.

Needless to say, not all of the committee agreed upon each of the recommendations and points of view brought forth in the report. The Liberal, New Democratic, and Bloc Quebecois Parties believe that the current legal approach to prostitution in Canada is contradictory and does more harm than good. They believe it marginalizes prostitutes and often leaves them isolated and afraid to report abuse and violence to law enforcement. These Parties further view “sexual activities between consenting adults that do not harm others (whether or not payment is involved) should not be prohibited.” The Conservatives on the other hand, view prostitution as “a degrading and dehumanizing act, often committed and controlled by coercive or opportunistic individuals against victims who are frequently powerless to protect themselves from abuse and exploitation.” They believe that the most realistic, compassionate and responsible approach in dealing with prostitution is to view most prostitutes as victims. The Conservatives further believe that prostitution has social costs for all citizens, in particular Canadian women. The Conservatives do agree that the status quo with respect to the enforcement of laws is unacceptable, however disagrees that decriminalization is the solution.

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:



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).