Canada (Attorney General) v. Bedford

2013 SCC 72
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Three applicants, who were all current or former prostitutes, challenged the constitutionality of three provisions of the Criminal Code, R.S.C. 1985. The three provisions outlawed “bawdy-houses” (also referred to as brothels), “living on the avails” (living off of a prostitutes profits), and public communication with prostitutes. Prostitution was legal in Canada, however, Parliament was allowed to restrict how prostitution was conducted as long as such restrictions did not violate a constitutional right. The applicants alleged that their inability to implement safety measures due to the restrictions in the Criminal Code violates their rights under the Canadian Charter of Rights and Freedoms (the “Charter”). Section 7 of the Charter stated that the State “cannot deny a person’s right to life, liberty, or security of the person, except in accordance with the principles of fundamental justice.”

Applicants initially brought their case to the Ontario Superior Court of Justice, which found each of the impugned laws “deprived the applicants and others like them of their liberty (by reason of potential imprisonment) and their security of the person (because they increased the risk of injury).” (Para. 18). The Court also found the bawdy-house provision and the prohibition against living on the avails of prostitution overly broad and, along with the prohibition on communicating for the purposes of prostitution, in violation of the principle of gross disproportionality.

The Court of Appeals agreed that the bawdy-house and living on avails provisions were unconstitutional, but found that the prohibition on communicating in public for the purposes of prostitution was constitutional.

The Court first noted that the three impugned provisions materially increased the risks faced by prostitutes and thus engaged the security rights of the women concerned under s.7 of the Charter. It also debunked the Attorney General’s claim that risks at issue were not caused by the impugned provisions, but rather by the choice of the prostitutes to engage in risky work and third parties, noting that persons who engage in prostitution often have little choice and that the provisions were actively making a legal activity more dangerous. Considering that the impugned provisions infringed on fundamental rights, the Court then determined that such infringement would only be permissible if it was in accordance with the principles of fundamental justice, namely the basic values against arbitrariness, overbreadth and gross disproportionality.

The Court held that the bawdy-house provision was unconstitutional. The Court agreed with the lower court’s finding  that the “negative impact of the bawdy-house prohibition on the applicant’s security of the person is grossly disproportionate to its objective.” The Court considered the high homicide rate of prostitutes and the general well-being of individuals in the profession, and determined that the potential nuisance posed by a bawdy-house was not comparable to the health and safety of the prostitution workers.

The Court further held that the “living on the avails of prostitution” provision was unconstitutional. While the purpose of the provision was to stop the exploitation of prostitutes, the Court held that the provision was overly broad because it covered relationships that were non-exploitative as well. This provision covered drivers, bodyguards, accountants and those who could help the prostitute rather than exploit her.

Finally, the Court held that the “communicating in public” ban was unconstitutional. The harm conferred by communicating in public, which was nothing more than a nuisance to neighbors, was grossly disproportionate to the safety and lives of prostitutes.

“The prohibitions at issue do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks.” Para. 60

“The s. 7 analysis is concerned with capturing inherently bad laws: that is, laws that take away life, liberty, or security of the person in a way that runs afoul of our basic values. The principles of fundamental justice are an attempt to capture those values. Over the years, the jurisprudence has given shape to the content of these basic values. In this case, we are concerned with the basic values against arbitrariness, overbreadth, and gross disproportionality.” Para. 96

“The harms identified by the courts below are grossly disproportionate to the deterrence of community disruption that is the object of the law. Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes. A law that prevents street prostitutes from resorting to a safe haven such as Grandma’s House while a suspected serial killer prowls the streets, is a law that has lost sight of its purpose.” Para 136.

“The law punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes (for example, controlling and abusive pimps) and those who could increase the safety and security of prostitutes (for example, legitimate drivers, managers, or bodyguards). It also includes anyone involved in business with a prostitute, such as accountants or receptionists. In these ways, the law includes some conduct that bears no relation to its purpose of preventing the exploitation of prostitutes. The living on the avails provision is therefore overbroad.” Para 142