Bedford and the structure of section 7.

• Author: Stewart, Hamish
• Position: Of the Canadian Charter of Rights and Freedoms

In Canada (A.G.) v. Bedford, the Supreme Court of Canada invalidated three prostitution-related provisions of the Criminal Code on grounds of overbreadth and gross disproportionality. The implications of Bedford go well beyond the particular context of sex work and even of criminal law. First, the Court held that the three constitutional norms against overbreadth, arbitrariness, and gross disproportionality are distinct from each other rather than aspects of a single norm against overbreadth. Second, the Court held that a Charter applicant could establish a violation of section 7 by showing that a law is overbroad, arbitrary, or grossly disproportionate in its impact on the life, liberty, or security of only one person and that the effectiveness of the law in achieving its policy objectives was not relevant to these norms. There are some difficulties in understanding this highly individualistic approach to section 7, and those difficulties lead to the third implication. By deferring any consideration of the effectiveness of the law to the question of whether it is a proportional limit on a section 7 right, the Court may be indicating a willingness to do something it has never done before: recognize an infringement of a section 7 right as a justified limit under section 1. The Court's clarification of the relationship between the norms against overbreadth, arbitrariness, and gross disproportionality is welcome, but its individualistic articulation of those norms is difficult to understand and its suggestion that section 7 violations may now be easier to save under section 1 is troubling.

Dans l'affaire Canada (P.G.) c. Bedford, la Cour supreme du Canada a invalide trois dispositions du Code criminel bees a la prostitution, statuant quelles avaient une portee excessive et un effet prejudiciable totalement disproportionne. Les repercussions de Bedford se ressentent bien au-dela du seul contexte du travail du sexe ou meme du droit criminel. Premierement, la Cour a statue que la portee excessive, l'arbitraire, et la disproportion totale sont trois notions distinctes. Elles ne decoulent donc pas toutes d'une norme unique s'opposant a ce qu'une loi ait une portee excessive. Deuxiemement, la Cour a statue qu'un demandeur pouvait etablir une atteinte aux droits garantis par l'article 7 de la Charte en demontrant qu'une loi a un effet excessif, arbitraire, ou totalement disproportionne sur la vie, la liberte ou la securite d'une seule personne. La Cour a egalement affirme que l'efficacite de la loi dans la realisation de ses objectifs n'est pas pertinente a l'evaluation de sa conformite avec ces trois normes constitutionnelles. Cette approche hautement individualiste a l'analyse de l'article 7 souleve certaines difficultes qui menent a la troisieme consequence majeure de l'arret Bedford, En deplacant toute consideration de l'efficacite de la loi sous l'analyse de la proportionnalite de la limite des droits proteges par l'article 7, la Cour semble indiquer une volonte de faire quelque chose qu'elle n'a jusqu'ici jamais fait, c'est-a-dire reconnaitre qu'une atteinte de ces droits puisse etre justifiee sous l'article premier de la Charte. La clarification de la Cour concernant la relation entre les normes de la portee excessive, de l'arbitraire et de la disproportion totale est bienvenue, mais son articulation individualiste de ces normes est difficile a comprendre. Par ailleurs, sa suggestion qu'une atteinte aux droits garantis par l'article 7 serait maintenant plus facile a justifier sous l'article premier est troublante.

Introduction I. An Overview of Bedford II. Revisiting the Principles of Fundamental Justice III. Revisiting the Relationship Between Section 7 and Section 1 Conclusion Introduction

In Canada (A.G.) v. Bedford, (1) the Supreme Court of Canada surprisingly--and unanimously--invalidated three prostitution-related provisions of the Criminal Code, (2) The decision has sparked an important public discussion about the appropriate regime for the legal regulation of sex work and a legislative response that emphatically reasserts the role of criminal prohibitions. (3) But the focus of this paper is not on sex work. It is rather on the broader implications of Bedford for section 7 of the Charter. (4) The decision suggests three important and related developments in the Court's understanding of the substance of certain principles of fundamental justice and how an infringement of those principles might be justified under section 1. The first development concerns the distinctiveness of the specific principles of fundamental justice that were raised in Bedford: the norms against arbitrariness, overbreadth, and gross disproportionality. Case law before Bedford suggested that these three norms might all be aspects of a more basic norm against overbreadth. But the Bedford Court confirmed that each of these norms is different from the others and has a distinct role to play in constitutional law. The second development concerns the content of these norms, or how to show that one of them has been violated. The Court held that each of these three norms can be infringed by the effect of a law on the life, liberty, or security of a single person. There are a number of difficulties in the application of this holding, but if the Court really means what it says, then there is a third development. There must be room, somewhere in Charter law, to consider what are often called societal or collective interests; that is, the interests of persons other than those whose section 7 interests are directly affected by the law in question. So if the principles of fundamental justice are entirely concerned with the rights and interests of the individuals directly affected, then the interests of others must be considered under section 1. Thus, the Court's new way of articulating the relationship between the principles of fundamental justice and the Oakes (5) test for justifying a limit on a Charter right may indicate an important shift in the Court's longstanding reluctance to uphold section 7 violations under section 1. The reasoning in Bedford likely makes it easier to establish a section 7 violation because the Charter applicant need only show that the interest in life, liberty, or security of one (possibly hypothetical) person is affected in a manner not in accordance with the principles of fundamental justice. But it might also make it easier to save a limitation of a section 7 right under section 1 because the societal interests that would previously have informed the content and application of the principles of fundamental justice will now be relevant to the question of proportionality. The Court's clarification of the differences between overbreadth, arbitrariness, and gross disproportionality is welcome, but its individualistic approach to those norms is likely to be difficult to apply. And the suggestion that infringements of these norms might be justified under section 1 may work for the norm against overbreadth, but if applied to other principles of fundamental justice may threaten the important principle that infringements of the very basic values protected by section 7 should indeed be very difficult to justify.

1. An Overview of Bedford

   Chief Justice McLachlin began her reasons in Bedford by reminding us that, under the previous criminal law regime, sex work was not a crime in Canada, but was hedged about with criminal restrictions that made it very difficult for sex workers to do their work in a lawful, safe, and business- like way. (6) In Bedford, three sex workers sought a declaration that three of those restrictions were unconstitutional: the offence of keeping a common bawdy-house (s. 210), the offence of living on the avails of prostitution (s. 212(1)(/')), and the offence of communicating in public for the purpose of prostitution (s. 213(1)(c)). (7) The applicants argued that these provisions prevented them from lawfully taking steps to protect themselves from the dangers of sex work, notably from the potential violence of their clients.

   The principal challenge was based on section 7 of the Charter. There are two essential steps in a section 7 claim: first, the Charter applicant has to show that the legislation in question affects his or her life, liberty, or security of the person; second, the Charter applicant has to show that the legislation violates one or more of the principles of fundamental justice. If both of these are demonstrated, then the applicant has shown that his or her section 7 right is violated. The government can then seek to show that the infringement of section 7 was justified under section 1, though the Supreme Court of Canada has yet to recognize a justified limit on a section 7 right. (8)

   Because the impugned provisions were criminal prohibitions punishable by imprisonment, the section 7 right to liberty was of course engaged. But a section 7 claim based on the possibility of imprisonment for committing a prostitution-related offence was not helpful to these applicants; their complaint was not that they might be charged with an offence but that offences relating to sex work constrained the way they could conduct an otherwise lawful activity. (9) So they argued that the impugned provisions engaged the right to security of the person because of the danger that they created to sex workers who are attempting to comply with the law. The Court agreed: the provisions "prevent people engaged in a risky--but legal--activity from taking steps to protect themselves from the risks." (10) In order to reach that conclusion, the Court had to consider three aspects of how the legislation works. First, what exactly was the reach of the legislation--that is, what conduct did it criminalize? Second, given that reach, how did it affect sex workers who were trying to conduct themselves lawfully? Third, should these effects have been attributed to the legislation itself or to the choice of sex workers...