The Year in Review 2012

Article excerpt

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.

I. 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. …