Canada (Attorney General) v Bedford

Bedford struck down three provisions targeting sex work — bawdy-house, communicating for prostitution, and living off the avails — for violating s.7 by preventing sex workers from taking measures to protect themselves.

Three current and former sex workers challenged provisions that prevented them from operating indoors, screening clients, and hiring drivers or security.

Do ss.210, 212(1)(j), and 213(1)(c) of the Criminal Code violate s.7?

Yes — all three. None saved by s.1. Suspended declaration of invalidity for one year.

Section 7 protects against deprivations of life, liberty and security of person that are arbitrary, overbroad, or grossly disproportionate. A law is overbroad if it captures conduct unrelated to its objective. A law is grossly disproportionate if its effects are completely out of proportion to its objective. Stare decisis can be revisited where the legal landscape and social facts have fundamentally changed.

McLachlin CJ revisited the Prostitution Reference (1990) given the developed s.7 framework. The bawdy-house provision was grossly disproportionate (forcing street work to avoid safer indoor work). Living-on-avails was overbroad (capturing protective relationships). Communicating was grossly disproportionate (preventing screening). Parliament's response — the PCEPA — followed.

Demonstrated post-Bedford the willingness of the Court to revisit precedent on social-fact change. Parliament's response (PCEPA, 2014) is itself constitutionally contested. Foundational for arbitrariness/overbreadth/gross-disproportionality analysis under s.7.

Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101.

McLachlin CJ, LeBel J, Fish J, Abella J, Rothstein J, Cromwell J, Moldaver J, Karakatsanis J, Wagner J