Moving beyond the Prostitution Reference: Bedford V. Canada
Powell, Maria, University of New Brunswick Law Journal
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. …