The year in review 2012.

• Author: Drake, Tony
• Position: Canadian appeals courts - II. Part 2 through III. Conclusion, with footnotes, p. 128-165

II PART 2

The following summaries are intended to give the reader an in-depth review of the significant issues and the reasons for judgment in select cases. These cases were chosen because they stand out. The summaries are longer and more detailed than those found on our website, because the cases have much about them that is interesting and significant.

1. BEDFORD V CANADA (AG)

   An application for leave to appeal to the Supreme Court of Canada was granted on October 25, 2012. (111)

   (i) Introduction

   In Bedford v Canada (AG), (112) Doherty, Rosenberg, and Feldman JJA of the Ontario Court of Appeal struck down the common bawdy-house provision as unconstitutional and limited the prohibition against living on the avails of prostitution by narrowing its application to those who do so "in circumstances of exploitation". The majority of the Court also held that the communication provision did not violate section 7 and is a reasonable limit on expression. The Court stayed the decision, striking down the common bawdy-house provision for 12 months to give Parliament an opportunity to draft a Charter-compliant provision.

   (ii) Facts/Background

   In Canada, prostitution itself is legal; however, the prostitution laws indirectly restrict the practice of prostitution by criminalizing various related activities. Many of these provisions were found constitutional in the Prostitution Reference. (113) In the Prostitution Reference, the constitutional challenge failed: although the common bawdy-house and communication provisions had been found to infringe the right to liberty under section 7, the infringements were in accordance with the principles of fundamental justice. (114) The communication provision was also found to have infringed freedom of expression under section 2(b) but was nevertheless upheld under section 1. (115)

   In Bedford, Terri Bedford, Amy Lebovitch, and Valerie Scott, all sex workers, sought to re-challenge the constitutionality of these laws, arguing that the effect of these provisions was to create significant harm to sex workers.

   The three provisions of the Criminal Code that form the core of Canada's prostitution laws are

   1. section 210, which prevents prostitutes from offering services out of fixed indoor locations ("the bawdy-house provision");

   2. section 212(1)(j), which prevents anyone from profiting from another's prostitution ("the avails provision"); and

   3. section 213(1)(c), which prevents prostitutes from offering their services in public ("the communication provision").

   The applicants argued that the provisions deprived them of their section 7 rights to life, liberty, and security of the person, that this deprivation did not accord with the principles of fundamental justice, and that the provisions could not be saved by section 1. They also argued that the communication provision violated their section 2(b) freedom of expression rights and could not be saved under section 1. (116)

   The Attorney General of Canada opposed the application on two grounds: (1) the Supreme Court's decision in the Prostitution Reference, coupled with the doctrine of stare decisis, prevented the application judge from reconsidering the constitutionality of the bawdy-house and communication provisions, which were both upheld on reference; (117) and (2) the applicants failed to meet their evidentiary burden of proving a violation of their section 7 rights. The Attorney General argued that it was not the law that created the risk to prostitutes; rather, the harm was inherent in the activity itself. (118)

   (iii) Lower Court Decision

   The application judge found that the availability of imprisonment for all three provisions engaged the liberty of the person. (119) She then considered whether the prohibitions accorded with the principles of fundamental justice. Although the bawdy-house provision was not arbitrary in itself, it had the effect of being arbitrary when taken together with the other provisions. (120) Justice Himel further held that this provision was overbroad and grossly disproportionate. (121)

   The application judge found that the avails provision violated the three principles of fundamental justice under consideration. She held that although the provision was targeted at pimps, the provision in fact encompassed all those who provided business services to prostitutes because they are prostitutes. (122) The application judge found that the communication provision was neither arbitrary nor overbroad, since it was sufficiently connected to the objective of combating social nuisance; however, it was grossly disproportionate in effect by forcing prostitutes to forgo screening, "an 'essential tool' to enhance prostitutes' safety". (123) Furthermore, the application judge departed from the Prostitution Reference because of "changed context" and found that this provision was a prima facie infringement of section 2(b) which could not be saved by section 1. (124)

   None of these provisions were found to be a reasonable limit under section 1. As a result, all three were declared unconstitutional. (125)

   (iv) The Court of Appeal's Decision

   (a) Stare Decisis

   The Court of Appeal held that the application judge did not err in considering whether the bawdy-house and communication provisions violated section 7 of the Charter because the legal issues and legal framework were different now than they had been during the Prostitution Reference. (126) The majority in the Prostitution Reference had not considered security of the person, having only considered the liberty interest. (127) In addition, the number of principles of fundamental justice had expanded since the Prostitution Reference. (128) Because the Prostitution Reference had not decided the substantive section 7 issues before the application judge, the doctrine of stare decisis did not apply:

   Henry and Prokofiew stand for the proposition that the actual words of the Supreme Court do not bind lower courts when those words are sufficiently tangential to the disposition of the case. Surely, then, the silence of the Supreme Court on "independent interests ... which must be given independent significance" ... cannot preclude future consideration of those interests by a court of first instance. (129) However, the Court of Appeal held that the application judge erred in reconsidering whether the communication provision violated section 2(b) since this had been definitively decided in the Prostitution Reference: (130)

   The Supreme Court's decision that s. 213(1)(c) of the Criminal Code is a justified limit on freedom of expression was fully binding on the application judge, as there was no suggestion that it had been expressly or by implication overruled by a subsequent decision of the Supreme Court. In short, it is for the Supreme Court, and only that court, to overrule one of its own decisions. (131) The Court of Appeal allowed the appeal on this issue, as it was also bound by the Prostitution Reference. (132)

   However, the Court does articulate the necessary role a court of first instance plays when a party seeks to argue that a decision of the Supreme Court should be reconsidered and overruled in light of new and significant evidence. The court of first instance may allow the parties to present their evidence and create the factual record should the SCC decide to reconsider its prior decision. (133) However, there is no role for the lower court in reconsidering a higher court's decision. (134) Here, the application judge erred for three reasons. First, she had relied on Wakeford v Canada (AG) (135) and Leeson v University of Regina, (136) but neither case contemplated that a trial court could reconsider a binding Supreme Court decision. (137) Second, the reasoning that supports a court's reconsideration of its own decision is not applicable to a lower court reconsidering a Supreme Court decision. (138) Third, recasting the nature of the expression at issue did not alter the ratio decidendi of the Prostitution Reference. (139) The Court went on to emphasize the importance of stare decisis in the context of Charter litigation:

   In our view, the need for a robust application of stare decisis is particularly important in the context of Charter litigation. Given the nature of the s. 1 test, especially in controversial matters, the evidence and legislative facts will continue to evolve, as will values, attitudes and perspectives. But this evolution alone is not sufficient to trigger a reconsideration in the lower courts. (140) If lower courts were empowered to reconsider binding precedents, the reasons went, then the legitimacy of Charter decisions and the rule of law would be undermined generally. (141) The Court analogized that "[s]uch an approach to constitutional interpretation yields not a vibrant living tree but a garden of annuals to be regularly uprooted and replaced". (142)

   (b) Do the challenged provisions interfere with the respondents' right to life, liberty, and security of the person as guaranteed by section 7?

   Liberty

   All parties agreed that risk of imprisonment is sufficient to engage the liberty interest. (143) Some of the interveners made a broader liberty claim, which the Court rejected. (144) Although the case law recognizes that a right to liberty extends to the right to make individual choices that go to the heart of personal autonomy, the Court rejected the argument that engaging in prostitution is such a personal life choice that ought to be protected. (145) The Court stated that to accept this argument would be to extend constitutional protection for economic or commercial decisions, which would be inconsistent with the deliberate decision to exclude property-related rights from the ambit of section 7. (146)

   Security of the Person

   The respondents' security of the person claim was about self-preservation, a fundamental aspect of personal autonomy, which, in turn, lies at the heart of the right to security of the person. (147) The application judge found that...