WestlawNext Canada insight Blog

Digest of the Week — Bedford v. Canada (Attorney General)

2013 CarswellOnt 17681 |  (Westlaw Canada)
Bedford v. Canada (Attorney General) |  (WestlawNext Canada)
Supreme Court of Canada


Criminal law | Charter of Rights and Freedoms | Life, liberty and security of person [s. 7] | Miscellaneous
 
Criminal law | Charter of Rights and Freedoms | Life, liberty and security of person [s. 7] | Principles of fundamental justice | Overbreadth
 
Criminal law | Offences | Prostitution and related offences | Living on avails of prostitution | Miscellaneous
 
Criminal law | Offences | Prostitution and related offences | Soliciting | Miscellaneous
 
Criminal law | Offences | Bawdy-house offences | Keeping common bawdy-house | Keeping
 
Criminal law | Charter of Rights and Freedoms | Charter remedies [s. 24] | Declaration of invalidity
 
Criminal law | Charter of Rights and Freedoms | Charter remedies [s. 24] | Reading in
 
Judges and courts | Stare decisis | Obiter dicta | Of Supreme Court of Canada


In 1990, Supreme Court of Canada held in Prostitution Reference that certain prostitution-related criminal offences, including keeping common bawdy-house, living off of avails of prostitution and communication (”soliciting”) for purpose of prostitution, did not violate s. 7 of Canadian Charter of Rights and Freedoms — Majority judgment in Prostitution Reference considered s. 7 solely in context of “physical liberty” — Current and former sex trade workers brought application for declaration that these provisions were in violation of s. 2(b) and s. 7 of Charter — Application was granted and provisions were struck down — Crown brought appeal that was allowed in part — Court of Appeal held that trial judge asking to depart from precedent on basis of new evidence, or new social, political or economic assumptions, may make findings of fact for consideration by higher courts, but cannot apply them to arrive at different conclusion from previous precedent — Crown brought appeals against finding on bawdy-house prohibition; sex trade workers cross-appealed on soliciting provision and reading-in remedy — Appeals dismissed; cross-appeal allowed — While reference opinions may not be legally binding, in practice they have been followed — Supreme Court of Canada’s advisory opinion upholding constitutionality of prohibitions on bawdy-houses and communicating was based on physical liberty interest under s. 7, not security of person — Principles of arbitrariness, overbreadth, and gross disproportionality raised in case at bar were developed only in past 20 years: arguments based on Charter provisions that were not raised in earlier case constituted new legal issue — As well, common law principle of stare decisis is subordinate to Constitution and cannot require court to uphold law that is unconstitutional — Prohibitions were declared to be inconsistent with Charter and hence void — Declaration of invalidity suspended for one year.

Parliament has criminalized various prostitution-related activities, including keeping a common bawdy-house (s. 210 of the Criminal Code of Canada); living off the avails of prostitution (s. 212(1)(j)); and communicating (”soliciting”) for the purpose of prostitution (s. 213(1)(c)). In 1990, in Reference re ss. 193 & 195.1(1)(c) of the Criminal Code (Canada) (”The Prostitution Reference”), the Supreme Court of Canada held that the offences of keeping a common bawdy-house and communicating for the purpose of prostitution were constitutional.

Three sex trade workers brought an application for a declaration that the above-noted charging provisions were unconstitutional under the Canadian Charter of Rights and Freedoms.

The application was granted and all of the impugned provisions were declared unconstitutional, subject to a judicial stay pending the disposition of any appellate proceedings. The Crown appealed.

The appeal was allowed in part. The majority of the Court of Appeal upheld the invalidity of the bawdy-house provision. It agreed that the provision against living off the avails was overbroad; its remedy was to read in the words “in circumstances of exploitation”. The majority allowed the appeal with respect to the communication or “soliciting” provision.

The appellant Attorneys General appealed from the Court of Appeal’s declaration that ss. 210 and 212(1)(j) of the Code were unconstitutional. The respondents cross-appealed on the issue of the constitutionality of s. 213(1)(c), and in respect of the Court of Appeal’s remedy to resolve the unconstitutionality of s. 210.

Held: The appeals were dismissed; the cross-appeal was allowed.

Per McLachlin C.J.C. (LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ. concurring): The Court of Appeal erred in holding that the application judge’s findings on social and legislative facts were not entitled to deference. A court of appeal should not interfere with the trial judge’s conclusions on social and legislative facts, absent reviewable error in the trial judge’s appreciation of the evidence.

The Supreme Court of Canada’s advisory opinion in The Prostitution Reference was based on the physical liberty interest under s. 7, not security of the person. Arguments based on Charter provisions that were not raised in the earlier case constituted a new legal issue.

The application judge correctly concluded that the bawdy-house prohibition materially increases the risks sex trade workers face, including preventing resort to safe houses. The bawdy-house provision negatively impacts the security of the person of sex trade workers and engages s. 7 of the Charter.

The evidence amply supported the application judge’s conclusion that hiring drivers, receptionists, and bodyguards could increase the safety of sex trade workers but was prevented by the prohibition against living on the avails of prostitution of another person. Accordingly, s. 212(1)(j) of the Code negatively impacts security of the person and engages s. 7.
The application judge found that face-to-face communication was an “essential tool” in reducing the risks sex trade workers face by allowing them to screen prospective clients. The prohibition on soliciting (s. 213(1)(c) of the Code) had the effect of displacing sex trade workers from familiar areas to more isolated areas, thereby making them more vulnerable. The application judge correctly concluded that the prohibition of such communication sufficed to engage security of the person under s. 7.

The applicable standard for causation should be the flexible “sufficient causal connection”, which allows the circumstances of each particular case to be taken into account and represents a fair and workable threshold for engaging s. 7 of the Charter.

The basic values under s. 7 in the present case are against arbitrariness, overbreadth, and gross disproportionality. All three principles compare the rights infringement caused by the law with the objective of the law, not with the law’s effectiveness. Under s. 1, the question is whether the negative impact of a law on the rights of individuals is proportionate to the pressing and substantial goal of the law in furthering the public interest.

The negative impact of the bawdy-house prohibition on the applicants’ security of the person is grossly disproportionate to its objective. The harms identified by the courts below are grossly disproportionate to the deterrence of community disruption that is the object of the law. A law that prevents resort to a safe haven while a suspected serial killer prowls the streets is a law that has lost sight of its purpose.

As found by the courts below, the living on the avails provision is overbroad. The law punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit sex trade workers and those who could increase their safety and security.

The majority of the Court of Appeal wrongly attributed errors in reasoning to the application judge, who had had correctly concluded that prohibition on soliciting has a negative impact on the safety and lives of sex trade workers on the street that is grossly disproportionate to the possibility of nuisance caused by street prostitution.

By imposing dangerous conditions on prostitution, the prohibitions at issue prevent people engaged in a risky but legal activity from taking steps to protect themselves from the risks.

Parliament is not precluded from imposing limits on where and how prostitution may be conducted, as long as it does so in a way that does not infringe the constitutional rights of sex trade workers. The regulation of prostitution is a complex and delicate matter. It will be for Parliament to devise a new approach, reflecting different elements of the existing regime, should it choose to do so.

Sections 210, 212(1)(j) and 213(1)(c) of the Code were declared to be inconsistent with the Charter and hence void. The declaration of invalidity was suspended for one year.
© Copyright WestlawNext Canada, Thomson Reuters Canada Limited. All rights reserved.