Moving beyond the prostitution reference: Bedford v. Canada.

• Author: Powell, Maria

Canada's Criminal Code (1) does not criminalize the sale of sex, but instead regulates the activities which surround commercial sexual acts. In 2007, Terri Jean Bedford, Amy Lebovitch and Valerie Scott launched a constitutional challenge on the provisions of the Criminal Code prohibiting: keeping a common bawdy house (s. 210), living on the avails of prostitution (s. 212(1)(j)) and communicating for the purposes of prostitution (s. 213 (1)(c)). (2) They argued these provisions contribute to the risk that sex trade workers will become victims of violence, in violation of their rights to liberty and security of the person under s. 7 of the Charter. (3) The applicants also submitted that the communicating provision was a violation of their s. 2(b) right to freedom of expression under the Charter. (4) Each of the women has a lengthy history of work in the sex trade. Lebovitch continues to earn a living through sex work, while both Bedford and Scott expressed a desire to return to the profession. All three are members of Sex Professionals of Canada, an organization that advocates for the decriminalization of sex work. Their victory at the Ontario Superior Court of Justice and partial victory at the Ontario Court of Appeal (5) signals that the dialogue about how prostitution is regulated in Canada has been re-opened. On June 12, 2013, the Supreme Court of Canada will hear the appeal of the Attorney General and Bedford's cross-appeal. (6)

Bedford argued the bawdy-house provision forces sex workers to practice their trade in public places, rather than from safer, indoor locations. (7) A bawdy-house is defined in s. 197 (1) as: "a place that is kept or occupied, or resorted to by one or more persons, for the purpose of prostitution or to practice acts of indecency". (8) Courts have interpreted "place" broadly to mean that "any defined space is capable of being a bawdy-house, from a hotel, to a house, to a parking lot--provided that there is frequent or habitual use of it for the purposes of prostitution." (9) As a result, virtually wherever a sex worker chooses to work may make them liable under the criminal law. The offence carries a maximum penalty of two years imprisonment.

Section 212 of the Criminal Code lists various offences, under the general heading of "procuring" including enticing a person to enter into prostitution, and exercising control or force over a person who has been compelled into the sex trade. The applicants challenged only the constitutionality of s. 212 (1)(j), which creates the offence of living wholly or partly on the avails of prostitution, commonly referred to as "pimping." A conviction under this section carries a maximum penalty of ten years in prison. Under s. 212(3), anyone who "lives with or is habitually in the company of a prostitute" is presumed to be "living on the avails of prostitution." Thus, spouses, partners and even roommates of a sex worker could be convicted of pimping, unless they can introduce evidence rebutting the presumption. (10) This section also creates the risk of prosecution for people the sex worker might hire to work as drivers, security, or reception staff. As the applicants argued in Bedford, having such staff creates a safer environment for those in the sex trade. (11) The ability to have staff is often closely linked to the being able to work in an indoor location.

The communicating provision in s. 213 of the Criminal Code prohibits: stopping or attempting to stop a motor vehicle or a person, or impeding access to or from a public place for the purposes of prostitution. (12) The applicants argued that this provision forces sex workers to operate covertly, often without the necessary time to assess whether a client is potentially threatening, prior to accepting them. (13)

This paper will offer insight into how the Supreme Court will decide the Bedford appeal by closely examining the issues presented through the trial and the appeal. The paper will also weigh the decision of the Supreme Court in the 1990 Prostitution Reference (14) upholding the impugned provisions and the 2011 Supreme Court decision Canada (Attorney General) v. PHS Community Services Society (15) (PHS), which offers a way to move forward. The harms that sex workers face are at the heart of the Bedford case, which is what separates it from the Prostitution Reference. Instead of considering sex work generally, the Bedford appeal gives the issue a human face and asks for the striking of laws that put sex workers at risk of violence. The issue of harms and the wealth of evidence supporting the fact that the impugned provisions of the Criminal Code aggravate the harms faced by sex workers were not put forward in the Prostitution Reference. In addition, the principles of fundamental justice that the Court uses to scrutinize provisions challenged under s. 7 of the Charter have also evolved considerably in the intervening years. The principles that define when a government needs to consider the adverse harms caused by legislative and decision-making processes set out in PHS offer insight into how the issues raised in Bedford may be interpreted. Examining the evidence presented at trial and the Court of Appeal leads to an appreciation for the need to decriminalize sex work. The Supreme Court should not feel bound by the Prostitution Reference, which focused on different issues and did not have the benefit of the recent PHS case, which I argue indicates a way for the Supreme Court to decriminalize sex work in Canada.

THE PROSTITUTION REFERENCE

The Supreme Court upheld the constitutionality of both the bawdy-house and communicating provisions of the Criminal Code in the 1990 Prostitution Reference. An understanding of the Prostitution Reference is essential to appreciating the issues raised in Bedford. At trial and on appeal, Bedford submitted the Prostitution Reference was distinguishable and the Attorney General contended that it is a binding authority.

In the Prostitution Reference, the Supreme Court was asked to determine whether the provisions of the Criminal Code dealing with bawdy-houses (s. 193, now s. 210) and communicating for the purposes of prostitution (s. 195 (1)(c), now s. 213 (1)(c)), separately or in combination, were a violation of ss. 2(b) or 7 of the Charter. Chief Justice Dickson, writing for the majority concluded both provisions were consistent with s.7. (16) While the liberty interests were engaged by the possibility of imprisonment, the provisions could not be determined to be sufficiently "unfair as to violate the principles of fundamental justice". (17) The majority also found the bawdy-house provision did not infringe on a person's right to freedom of expression. (18) With respect to communicating, the majority determined that while there was an infringement to the s. 2(b) right of freedom of expression it could be upheld as a justifiable limit. (19) Dickson CJ described the legislative objective of the communicating provision as suppressing the social nuisance caused by public solicitation and keeping it out of the view of the public. (20)

Despite reaching the same conclusions in his own reasons, Lamer J's opinion in the Prostitution Reference branched into a discussion of economic liberty, which highlights the difference between what the Supreme Court was asked to decide in 1990 and what Bedford is asking the Court to decide now. The argument in 1990, as summarized by Lamer J, was that the impugned provisions violated liberty under s. 7 because sex workers were unable to "exercise their chosen profession", which then violated their right to security of the person by rendering them unable to provide for themselves. (21) While he could not accept that the infringement was contrary to the principles of fundamental justice, he encapsulated when s. 7 is triggered, stating that it is "implicated when the state restricts individuals' security of the person by interfering with, or removing from them, control over their physical or mental integrity", (22) which is precisely the argument being made in Bedford. Lamer J also characterized the legislative objective of communicating differently from the majority of the court. His definition extended to "general confusion and congestion that is accompanied by an increase in related criminal activity such as possession and trafficking of drugs, violence and pimping". (23) It is important to remember that this view was that of Lamer J alone as his characterization is raised by the Ontario Court of Appeal in Bedford.

In dissent, in her s.7 analysis, Wilson J found that while the bawdy-house provision could be considered consistent with s. 7 of the Charter, the communicating provision did constitute a breach. (24) In her view, the risk of incarceration was disproportionate to the legislative objective of curbing public nuisance, especially in light of her finding that the communicating provision also violated a person's right to freedom of expression and could not be upheld by s. 1. (25)

The Trial Decision

The arguments of both Bedford and the Attorney General presented the Application Judge (Justice Susan Himel) with a formidable task because of the stigma attached to sex work. Bedford's position was that the criminal prohibitions make sex work more dangerous and that the Supreme Court decision in the Prostitution Reference relating to communicating and freedom of expression needed to be revisited in light of "new evidence and a material change in circumstances." (26) The Attorney General of Canada argued Bedford had not shown sufficient reasons in law or new evidence which would warrant a re-evaluation of the Supreme Court's previous ruling and that the danger inherent in the sex trade was not caused by the impugned provisions. (27) Interveners, the Attorney General of Ontario, the Christian Legal Fellowship, REAL Women of Canada and the Catholic Civil Rights League all spoke to human dignity and vulnerability of the people...