Canada (Attorney General) v. Bedford

Canada (Attorney General) v. Bedford
Collection
Supreme Court Judgments
Date
2013-12-20
Neutral citation
2013 SCC 72
Report
[2013] 3 SCR 1101
Case number
34788
Judges
McLachlin, Beverley; LeBel, Louis; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard
On appeal from
Ontario
Subjects
Constitutional law
Courts
Notes
SCC Case Information: 34788
Decision Content
SUPREME COURT OF CANADA
Citation: Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101
Date: 20131220 Docket: 34788
Between:
Attorney General of Canada
Appellant/Respondent on cross-appeal
and
Terri Jean Bedford, Amy Lebovitch and Valerie Scott
Respondents/Appellants on cross-appeal
And Between:
Attorney General of Ontario
Appellant/Respondent on cross-appeal
and
Terri Jean Bedford, Amy Lebovitch and Valerie Scott
Respondents/Appellants on cross-appeal
- and -
Attorney General of Quebec, Pivot Legal Society, Downtown Eastside Sex Workers United Against Violence Society, PACE Society, Secretariat of the Joint United Nations Programme on HIV/AIDS, British Columbia Civil Liberties Association, Evangelical Fellowship of Canada, Canadian HIV/AIDS Legal Network, British Columbia Centre for Excellence in HIV/AIDS, HIV & AIDS Legal Clinic Ontario, Canadian Association of Sexual Assault Centres, Native Women’s Association of Canada, Canadian Association of Elizabeth Fry Societies, Action ontarienne contre la violence faite aux femmes, Concertation des luttes contre l’exploitation sexuelle, Regroupement québécois des Centres d’aide et de lutte contre les agressions à caractère sexuel, Vancouver Rape Relief Society, Christian Legal Fellowship, Catholic Civil Rights League, REAL Women of Canada, David Asper Centre for Constitutional Rights, Simone de Beauvoir Institute, AWCEP Asian Women for Equality Society, operating as Asian Women Coalition Ending Prostitution and Aboriginal Legal Services of Toronto Inc.
Interveners
Coram: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
Reasons for Judgment: (paras. 1 to 169)
McLachlin C.J. (LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ. concurring)
Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101
Attorney General of Canada Appellant/Respondent on cross‑appeal
v.
Terri Jean Bedford,
Amy Lebovitch and
Valerie Scott Respondents/Appellants on cross‑appeal
‑ and ‑
Attorney General of Ontario Appellant/Respondent on cross‑appeal
v.
Terri Jean Bedford,
Amy Lebovitch and
Valerie Scott Respondents/Appellants on cross‑appeal
and
Attorney General of Quebec,
Pivot Legal Society,
Downtown Eastside Sex Workers United Against Violence Society,
PACE Society,
Secretariat of the Joint United Nations Programme on HIV/AIDS,
British Columbia Civil Liberties Association,
Evangelical Fellowship of Canada,
Canadian HIV/AIDS Legal Network,
British Columbia Centre for Excellence in HIV/AIDS,
HIV & AIDS Legal Clinic Ontario,
Canadian Association of Sexual Assault Centres,
Native Women’s Association of Canada,
Canadian Association of Elizabeth Fry Societies,
Action ontarienne contre la violence faite aux femmes,
Concertation des luttes contre l’exploitation sexuelle,
Regroupement québécois des Centres d’aide et de lutte contre les agressions à caractère sexuel, Vancouver Rape Relief Society,
Christian Legal Fellowship, Catholic Civil Rights League,
REAL Women of Canada,
David Asper Centre for Constitutional Rights,
Simone de Beauvoir Institute,
AWCEP Asian Women for Equality Society, operating as Asian Women Coalition Ending Prostitution and
Aboriginal Legal Services of Toronto Inc. Interveners
Indexed as: Canada (Attorney General) v. Bedford
2013 SCC 72
File No.: 34788.
2013: June 13; 2013: December 20.[*]
Present: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
on appeal from the court of appeal for ontario
Constitutional law — Charter of Rights — Right to security of person — Freedom of expression — Criminal law — Prostitution — Common bawdy‑house — Living on avails of prostitution — Communicating in public for purposes of prostitution — Prostitutes challenging constitutionality of prohibitions on bawdy‑houses, living on avails of prostitution and communicating in public for purposes of prostitution under Criminal Code — Prostitutes alleging impugned provisions violate s. 7 security of the person rights by preventing implementation of safety measures that could protect them from violent clients — Prostitutes also alleging prohibition on communicating in public for purposes of prostitution infringes freedom of expression guarantee — Canadian Charter of Rights and Freedoms, ss. 1 , 2(b) , 7 — Criminal Code, R.S.C. 1985, c. C‑46, ss. 197(1) , 210 , 212(1) (j), 213(1) (c).
Courts — Decisions — Stare decisis — Standard of review — Prostitutes challenging constitutionality of prohibitions on bawdy‑houses, living on avails of prostitution and communicating in public for purposes of prostitution under Criminal Code — Under what circumstances application judge could revisit conclusions of Supreme Court of Canada in Prostitution Reference which upheld bawdy‑house and communicating prohibitions — Degree of deference owed to application judge’s findings on social and legislative facts.
B, L and S, current or former prostitutes, brought an application seeking declarations that three provisions of the Criminal Code , R.S.C. 1985, c. C‑46 , which criminalize various activities related to prostitution, infringe their rights under s. 7 of the Charter : s. 210 makes it an offence to keep or be in a bawdy‑house; s. 212(1)(j) prohibits living on the avails of prostitution; and, s. 213(1)(c) prohibits communicating in public for the purposes of prostitution. They argued that these restrictions on prostitution put the safety and lives of prostitutes at risk, by preventing them from implementing certain safety measures — such as hiring security guards or “screening” potential clients — that could protect them from violence. B, L and S also alleged that s. 213(1)(c) infringes the freedom of expression guarantee under s. 2( b ) of the Charter , and that none of the provisions are saved under s. 1.
The Ontario Superior Court of Justice granted the application, declaring, without suspension, that each of the impugned Criminal Code provisions violated the Charter and could not be saved by s. 1. The Ontario Court of Appeal agreed s. 210 was unconstitutional and struck the word “prostitution” from the definition of “common bawdy‑house” as it applies to s. 210, however it suspended the declaration of invalidity for 12 months. The court declared that s. 212(1)(j) was an unjustifiable violation of s. 7, ordering the reading in of words to clarify that the prohibition on living on the avails of prostitution applies only to those who do so “in circumstances of exploitation”. It further held the communicating prohibition under s. 213(1)(c) did not violate either s. 2(b) or s. 7. The Attorneys General appeal from the declaration that ss. 210 and 212(1)(j) of the Code are unconstitutional. B, L and S cross‑appeal on the constitutionality of s. 213(1)(c) and in respect of the s. 210 remedy.
Held: The appeals should be dismissed and the cross‑appeal allowed. Sections 210, as it relates to prostitution, and ss. 212(1) (j) and 213(1) (c) of the Criminal Code are declared to be inconsistent with the Charter . The word “prostitution” is struck from the definition of “common bawdy-house” in s. 197(1) of the Criminal Code as it applies to s. 210 only. The declaration of invalidity should be suspended for one year.
The three impugned provisions, primarily concerned with preventing public nuisance as well as the exploitation of prostitutes, do not pass Charter muster: they infringe the s. 7 rights of prostitutes by depriving them of security of the person in a manner that is not in accordance with the principles of fundamental justice. It is not necessary to determine whether this Court should depart from or revisit its conclusion in the Prostitution Reference that s. 213(1)(c) does not violate s. 2(b) since it is possible to resolve this case entirely on s. 7 grounds.
The common law principle of stare decisis is subordinate to the Constitution and cannot require a court to uphold a law which is unconstitutional. However, a lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one to reach. The threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence. In this case, the application judge was entitled to rule on the new legal issues of whether the laws in question violated the security of the person interests under s. 7, as the majority decision of this Court in the Prostitution Reference was based on the s. 7 physical liberty interest alone. Furthermore, the principles of fundamental justice considered in the Prostitution Reference dealt with vagueness and the permissibility of indirect criminalization. The principles raised in this case — arbitrariness, overbreadth, and gross disproportionality — have, to a large extent, developed only in the last 20 years. The application judge was not, however, entitled to decide the question of whether the communication provision is a justified limit on freedom of expression. That issue was decided in the Prostitution Reference and was binding on her.
The application judge’s findings on social and legislative facts are entitled to deference. The standard of review for findings of fact — whether adjudicative, social, or legislative — remains palpable and overriding error.
The impugned laws negatively impact security of the person rights of prostitutes and thus engage s. 7. The proper standard of causation is a flexible “sufficient causal connection” standard, as correctly adopted by the application judge. The prohibitions all heighten the risks the applicants face in prostitution — itself a legal activity. They 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. That causal connection is not negated by the actions of third‑party johns and pimps, or prostitutes’ so‑called choice to engage in prostitution. While some prostitutes may fit the description of persons who freely choose (or at one time chose) to engage in the risky economic activity of prostitution, many prostitutes have no meaningful choice but to do so. Moreover, it makes no difference that the conduct of pimps and johns is the immediate source of the harms suffered by prostitutes. The violence of a john does not diminish the role of the state in making a prostitute more vulnerable to that violence.
The applicants have also established that the deprivation of their security of the person is not in accordance with the principles of fundamental justice: principles that attempt to capture basic values underpinning our constitutional order. This case concerns the basic values against arbitrariness (where there is no connection between the effect and the object of the law), overbreadth (where the law goes too far and interferes with some conduct that bears no connection to its objective), and gross disproportionality (where the effect of the law is grossly disproportionate to the state’s objective). These are three distinct principles, but overbreadth is related to arbitrariness, in that the question for both is whether there is no connection between the law’s effect and its objective. All three principles compare the rights infringement caused by the law with the objective of the law, not with the law’s effectiveness; they do not look to how well the law achieves its object, or to how much of the population the law benefits or is negatively impacted. The analysis is qualitative, not quantitative. The question under s. 7 is whether anyone’s life, liberty or security of the person has been denied by a law that is inherently bad; a grossly disproportionate, overbroad, or arbitrary effect on one person is sufficient to establish a breach of s. 7.
Applying these principles to the impugned provisions, the negative impact of the bawdy‑house prohibition (s. 210) on the applicants’ security of the person is grossly disproportionate to its objective of preventing public nuisance. The harms to prostitutes identified by the courts below, such as being prevented from working in safer fixed indoor locations and from resorting to safe houses, are grossly disproportionate to the deterrence of community disruption. Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes. Second, the purpose of the living on the avails of prostitution prohibition in s. 212(1)(j) is to target pimps and the parasitic, exploitative conduct in which they engage. The law, however, punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes 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 consequently overbroad. Third, the purpose of the communicating prohibition in s. 213(1)(c) is not to eliminate street prostitution for its own sake, but to take prostitution off the streets and out of public view in order to prevent the nuisances that street prostitution can cause. The provision’s negative impact on the safety and lives of street prostitutes, who are prevented by the communicating prohibition from screening potential clients for intoxication and propensity to violence, is a grossly disproportionate response to the possibility of nuisance caused by street prostitution.
While the Attorneys General have not seriously argued that the laws, if found to infringe s. 7, can be justified under s. 1, some of their arguments under s. 7 are properly addressed at this stage of the analysis. In particular, they attempt to justify the living on the avails provision on the basis that it must be drafted broadly in order to capture all exploitative relationships. However, the law not only catches drivers and bodyguards, who may actually be pimps, but it also catches clearly non‑exploitative relationships, such as receptionists or accountants who work with prostitutes. The law is therefore not minimally impairing. Nor, at the final stage of the s. 1 inquiry, is the law’s effect of preventing prostitutes from taking measures that would increase their safety, and possibly save their lives, outweighed by the law’s positive effect of protecting prostitutes from exploitative relationships. The impugned laws are not saved by s. 1.
Concluding that each of the challenged provisions violates the Charter does not mean that Parliament is 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 prostitutes. The regulation of prostitution is a complex and delicate matter. It will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime. Considering all the interests at stake, the declaration of invalidity should be suspended for one year.
Cases Cited
Referred to: Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; R. v. Morgentaler, [1988] 1 S.C.R. 30; Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. Malmo‑Levine, 2003 SCC 74, [2003] 3 S.C.R. 571; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458; R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; R. v. Pierce (1982), 37 O.R. (2d) 721; R. v. Worthington (1972), 10 C.C.C. (2d) 311; R. v. Downey, [1992] 2 S.C.R. 10; R. v. Grilo (1991), 2 O.R. (3d) 514; R. v. Barrow (2001), 54 O.R. (3d) 417; R. v. Head (1987), 59 C.R. (3d) 80; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791; R. v. Heywood, [1994] 3 S.C.R. 761; R. v. Demers, 2004 SCC 46, [2004] 2 S.C.R. 489; R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555; R. v. S.S.C., 2008 BCCA 262, 257 B.C.A.C. 57; R. v. Clay, 2003 SCC 75, [2003] 3 S.C.R. 735; Rockert v. The Queen, [1978] 2 S.C.R. 704; R. v. Zundel, [1992] 2 S.C.R. 731; Shaw v. Director of Public Prosecutions, [1962] A.C. 220; Schachter v. Canada, [1992] 2 S.C.R. 679.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 1 , 2( b ) , 7 .
Criminal Code , R.S.C. 1985, c. C‑46, ss. 197(1) “common bawdy‑house”, 210, 212(1)(j), 213(1)(c).
Criminal Code, S.C. 1953‑54, c. 51, Part V, s. 182.
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 14.05(3)(g.1).
Authors Cited
Canada. House of Commons. Subcommittee on Solicitation Laws of the Standing Committee on Justice and Human Rights. The Challenge of Change: A Study of Canada’s Criminal Prostitution Laws. Ottawa: Communication Canada, 2006.
Coke, Edward. The Third Part of the Institutes of the Laws of England: Concerning High Treason, and Other Pleas of the Crown and Criminal Causes. London: Clarke, 1817 (first published 1644).
Hogg, Peter W. “The Brilliant Career of Section 7 of the Charter ” (2012), 58 S.C.L.R. (2d) 195.
Ontario. Inquiry into Pediatric Forensic Pathology in Ontario: Report, vol. 3, Policy and Recommendations, by Stephen T. Goudge. Toronto: Ministry of the Attorney General, 2008.
Rubin, Gerald. “The Nature, Use and Effect of Reference Cases in Canadian Constitutional Law” (1960), 6 McGill L.J. 168.
Stewart, Hamish. Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms. Toronto: Irwin Law, 2012.
APPEALS and CROSS‑APPEAL from a judgment of the Ontario Court of Appeal (Doherty, Rosenberg, Feldman, MacPherson and Cronk JJ.A.), 2012 ONCA 186, 109 O.R. (3d) 1, 290 O.A.C. 236, 346 D.L.R. (4th) 385, 282 C.C.C. (3d) 1, 256 C.R.R. (2d) 143, 91 C.R. (6th) 257, [2012] O.J. No. 1296 (QL), 2012 CarswellOnt 3557, affirming in part a decision of Himel J., 2010 ONSC 4264, 102 O.R. (3d) 321, 327 D.L.R. (4th) 52, 262 C.C.C. (3d) 129, 217 C.R.R. (2d) 1, 80 C.R. (6th) 256, [2010] O.J. No. 4057 (QL), 2010 CarswellOnt 7249. Appeals dismissed and cross‑appeal allowed.
Michael H. Morris, Nancy Dennison and Gail Sinclair, for the appellant/respondent on cross‑appeal the Attorney General of Canada.
Jamie C. Klukach, Christine Bartlett‑Hughes and Megan Stephens, for the appellant/respondent on cross‑appeal the Attorney General of Ontario.
Alan N. Young, Marlys A. Edwardh and Daniel Sheppard, for the respondents/appellants on cross‑appeal.
Sylvain Leboeuf and Julie Dassylva, for the intervener the Attorney General of Quebec.
Katrina E. Pacey, Joseph J. Arvay, Q.C., Elin R. S. Sigurdson, Lisa C. Glowacki and M. Kathleen Kinch, for the interveners the Pivot Legal Society, the Downtown Eastside Sex Workers United Against Violence Society and the PACE Society.
Written submissions only by Michael A. Feder and Tammy Shoranick, for the intervener the Secretariat of the Joint United Nations Programme on HIV/AIDS.
Brent B. Olthuis, Megan Vis‑Dunbar and Michael Sobkin, for the intervener the British Columbia Civil Liberties Association.
Georgialee A. Lang and Donald Hutchinson, for the intervener the Evangelical Fellowship of Canada.
Jonathan A. Shime, Megan Schwartzentruber and Renée Lang, for the interveners the Canadian HIV/AIDS Legal Network, the British Columbia Centre for Excellence in HIV/AIDS and the HIV & AIDS Legal Clinic Ontario.
Janine Benedet and Fay Faraday, for the interveners the Canadian Association of Sexual Assault Centres, the Native Women’s Association of Canada, the Canadian Association of Elizabeth Fry Societies, Action ontarienne contre la violence faite aux femmes, Concertation des luttes contre l’exploitation sexuelle, Regroupement québécois des Centres d’aide et de lutte contre les agressions à caractère sexuel and the Vancouver Rape Relief Society.
Robert W. Staley, Ranjan K. Agarwal and Amanda C. McLachlan, for the interveners the Christian Legal Fellowship, the Catholic Civil Rights League and REAL Women of Canada.
Joseph J. Arvay, Q.C., and Cheryl Milne, for the intervener the David Asper Centre for Constitutional Rights.
Walid Hijazi, for the intervener the Simone de Beauvoir Institute.
Gwendoline Allison, for the intervener the AWCEP Asian Women for Equality Society, operating as Asian Women Coalition Ending Prostitution.
Christa Big Canoe and Emily R. Hill, for the intervener Aboriginal Legal Services of Toronto Inc.
TABLE OF CONTENTS
Paragraph
I.......... The Case. 3
II........ Legislation. 16
III....... Prior Decisions. 17
A. Ontario Superior Court of Justice (Himel J.) 17
B. Ontario Court of Appeal (Doherty, Rosenberg, Feldman, MacPherson and Cronk JJ.A.) 25
IV....... Discussion. 36
A. Preliminary Issues. 38
(1) Revisiting the Prostitution Reference. 38
(2) Deference to the Application Judge’s Findings on Social and Legislative Facts. 48
B. Section 7 Analysis. 57
(1) Is Security of the Person Engaged?. 58
(a) Sections 197 and 210: Keeping a Common Bawdy-House. 61
(b) Section 212(1)(j): Living on the Avails of Prostitution. 66
(c) Section 213(1)(c): Communicating in a Public Place. 68
(2) A Closer Look at Causation. 73
(a) The Nature of the Required Causal Connection. 74
(b) Is the Causal Connection Negated by Choice or the Role of Third Parties?. 79
(3) Principles of Fundamental Justice. 93
(a) The Applicable Norms. 93
(b) The Relationship Between Section 7 and Section 1. 124
(4) Do the Impugned Laws Respect the Principles of Fundamental Justice?. 130
(a) Section 210: The Bawdy-House Prohibition. 130
(i) The Object of the Provision. 130
(ii) Compliance With the Principles of Fundamental Justice. 133
(b) Section 212(1)(j): Living on the Avails of Prostitution. 137
(i) The Object of the Provision. 137
(ii) Compliance With the Principles of Fundamental Justice. 139
(c) Section 213(1)(c): Communicating in Public for the Purposes of Prostitution. 146
(i) The Object of the Provision. 146
(ii) Compliance With the Principles of Fundamental Justice. 148
C. Do the Prohibitions Against Communicating in Public Violate Section 2( b ) of the Charter ?. 160
D. Are the Infringements Justified Under Section 1 of the Charter ?. 161
V........ Result and Remedy. 164
The judgment of the Court was delivered by
[1] The Chief Justice — It is not a crime in Canada to sell sex for money. However, it is a crime to keep a bawdy-house, to live on the avails of prostitution or to communicate in public with respect to a proposed act of prostitution. It is argued that these restrictions on prostitution put the safety and lives of prostitutes at risk, and are therefore unconstitutional.
[2] These appeals and the cross-appeal are not about whether prostitution should be legal or not. They are about whether the laws Parliament has enacted on how prostitution may be carried out pass constitutional muster. I conclude that they do not. I would therefore make a suspended declaration of invalidity, returning the question of how to deal with prostitution to Parliament.
I. The Case
[3] Three applicants, all current or former prostitutes, brought an application seeking declarations that three provisions of the Criminal Code , R.S.C. 1985, c. C-46 , are unconstitutional.
[4] The three impugned provisions criminalize various activities related to prostitution. They are primarily concerned with preventing public nuisance, as well as the exploitation of prostitutes. Section 210 makes it an offence to be an inmate of a bawdy-house, to be found in a bawdy-house without lawful excuse, or to be an owner, landlord, lessor, tenant, or occupier of a place who knowingly permits it to be used as a bawdy-house. Section 212(1)(j) makes it an offence to live on the avails of another’s prostitution. Section 213(1)(c) makes it an offence to either stop or attempt to stop, or communicate or attempt to communicate with, someone in a public place for the purpose of engaging in prostitution or hiring a prostitute.
[5] However, prostitution itself is not illegal. It is not against the law to exchange sex for money. Under the existing regime, Parliament has confined lawful prostitution to two categories: street prostitution and “out-calls” — where the prostitute goes out and meets the client at a designated location, such as the client’s home. This reflects a policy choice on Parliament’s part. 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 prostitutes.
[6] The applicants allege that all three provisions infringe s. 7 of the Canadian Charter of Rights and Freedoms by preventing prostitutes from implementing certain safety measures — such as hiring security guards or “screening” potential clients — that could protect them from violent clients. The applicants also allege that s. 213(1)(c) infringes s. 2( b ) of the Charter , and that none of the provisions are saved under s. 1.
[7] The backgrounds of the three applicants as revealed in their evidence were reviewed in the application judge’s decision (2010 ONSC 4264, 102 O.R. (3d) 321).
[8] Terri Jean Bedford was born in Collingwood, Ontario, in 1959, and as of 2010 had 14 years of experience working as a prostitute in various Canadian cities. She worked as a street prostitute, a massage parlour attendant, an escort, an owner and manager of an escort agency, and a dominatrix. Ms. Bedford had a difficult childhood and adolescence during which she was subjected to various types of abuse. She also encountered brutal violence throughout her career — largely, she stated, while working on the street. In her experience, indoor prostitution is safer than prostitution on the street, although she conceded that safety of an indoor location can vary. Ms. Bedford has been convicted of both keeping and being an inmate of a common bawdy-house, for which she has paid a number of fines and served 15 months in jail.
[9] When she ran an escort service in the 1980s, Ms. Bedford instituted various safety measures, including: ensuring someone else was on location during in-calls, except during appointments with well-known clients; ensuring that women were taken to and from out-call appointments by a boyfriend, husband, or professional driver; if an appointment was at a hotel, calling the hotel to verify the client’s name and hotel room number; if an appointment was at a client’s home, calling the client’s phone to ensure it was the correct number; turning down appointments from clients who sounded intoxicated; and verifying that credit card numbers matched the names of clients. She claimed she was not aware of any incidents of violence by the clientele towards her employees during that time. At some point in the 1990s, Ms. Bedford ran the Bondage Bungalow, where she offered dominatrix services. She also instituted various safety measures at this establishment, and claimed she only experienced one incident of “real violence” (application decision, at para. 30).
[10] Ms. Bedford is not currently working in prostitution but asserted that she would like to return to working as a dominatrix in a secure, indoor location; however, she is concerned that in doing so, she would be exposed to criminal liability. Furthermore, she does not want the people assisting her to be subject to criminal liability due to the living on the avails of prostitution provision.
[11] Amy Lebovitch was born in Montréal in 1979. She comes from a stable background and attended both CEGEP and university. She currently works as a prostitute and has done so since approximately 1997 in various cities in Canada. She worked first as a street prostitute, then as an escort, and later in a fetish house. Ms. Lebovitch considers herself lucky that she was never subjected to violence during her years working on the streets. She moved off the streets to work at the escort agency after seeing other women’s injuries and hearing stories of the violence suffered by other street prostitutes. Ms. Lebovitch maintains that she felt safer in an indoor location; she attributed remaining safety issues mainly to poor management. Ms. Lebovitch experienced one notable instance of violence, which she did not report to the police out of fear of police scrutiny and the possibility of criminal charges.
[12] Presently, Ms. Lebovitch primarily works independently out of her home, where she takes various safety precautions, including: making sure client telephone calls are from unblocked numbers; not taking calls from clients who sound drunk, high, or in another manner undesirable; asking for expectations upfront; taking clients’ full names and verifying them using directory assistance; getting referrals from regular clients; and calling a third party — her “safe call” — when the client arrives and before he leaves. Ms. Lebovitch fears being charged and convicted under the bawdy-house provisions and the consequent possibility of forfeiture of her home. She says that the fear of criminal charges has caused her to work on the street on occasion. She is also concerned that her partner will be charged with living on the avails of prostitution. She has never been charged with a criminal offence of any kind. Ms. Lebovitch volunteers as the spokesperson for Sex Professionals of Canada (“SPOC”), and she also records information from women calling to report “bad dates” — incidents that ended in violence or theft. Ms. Lebovitch stated that she enjoys her job and does not plan to leave it in the foreseeable future.
[13] Valerie Scott was born in Moncton, New Brunswick, in 1958. She is currently the executive director of SPOC, and she no longer works as a prostitute. In the past, she worked indoors, from her home or in hotel rooms; she also worked as a prostitute on the street, in massage parlours, and she ran a small escort business. She has never been charged with a criminal offence of any kind. When Ms. Scott worked from home, she would screen new clients by meeting them in public locations. She never experienced significant harm working from home. Around 1984, as awareness about HIV/AIDS increased, Ms. Scott was compelled to work as a street prostitute, since indoor clients felt entitled not to wear condoms. On the street, she was subjected to threats of violence, as well as verbal and physical abuse. Ms. Scott described some precautions street prostitutes took prior to the enactment of the communicating law, including working in pairs or threes and having another prostitute visibly write down the client’s licence plate number, so he would know he was traceable if something was to go wrong.
[14] Ms. Scott worked as an activist and, among other things, advocated against Bill C-49 (which included the current communicating provision). Ms. Scott stated that following the enactment of the communicating law, the Canadian Organization for the Rights of Prostitutes (“CORP”) began receiving calls from women working in prostitution about the increased enforcement of the laws and the prevalence of bad dates. In response, Ms. Scott was involved in setting up a drop-in and phone centre for prostitutes in Toronto; within the first year, Ms. Scott spoke to approximately 250 prostitutes whose main concerns were client violence and legal matters arising from arrest. In 2000, Ms. Scott formed SPOC to revitalize and continue the work previously done by CORP. As the executive director of this organization, she testified before a Parliamentary Subcommittee on Solicitation Laws in 2005. Over the years, Ms. Scott estimates that she has spoken with approximately 1,500 women working in prostitution. If this challenge is successful, Ms. Scott would like to operate an indoor prostitution business. While she recognizes that clients may be dangerous in both outdoor and indoor locations, she would institute safety precautions such as checking identification of clients, making sure other people are close by during appointments to intervene if needed, and hiring a bodyguard.
[15] The three applicants applied pursuant to rule 14.05(3)(g.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for an order that the provisions restricting prostitution are unconstitutional. The evidentiary record consists of over 25,000 pages of evidence in 88 volumes. The affidavit evidence was accompanied by a large volume of studies, reports, newspaper articles, legislation, Hansard and many other documents. Some of the affiants were cross-examined.
II. Legislation
[16] The relevant legislation is as follows:
Canadian Charter of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
2. Everyone has the following fundamental freedoms:
. . .
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Criminal Code
197. (1) In this Part,
. . .
“common bawdy-house” means a place that is
(a) kept or occupied, or
(b) resorted to by one or more persons
for the purpose of prostitution or the practice of acts of indecency;
210. (1) Every one who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
(2) Every one who
(a) is an inmate of a common bawdy-house,
(b) is found, without lawful excuse, in a common bawdy-house, or
(c) as owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or control of any place, knowingly permits the place or any part thereof to be let or used for the purposes of a common bawdy-house,
is guilty of an offence punishable on summary conviction.
(3) Where a person is convicted of an offence under subsection (1), the court shall cause a notice of the conviction to be served on the owner, landlord or lessor of the place in respect of which the person is convicted or his agent, and the notice shall contain a statement to the effect that it is being served pursuant to this section.
(4) Where a person on whom a notice is served under subsection (3) fails forthwith to exercise any right he may have to determine the tenancy or right of occupation of the person so convicted, and thereafter any person is convicted of an offence under subsection (1) in respect of the same premises, the person on whom the notice was served shall be deemed to have committed an offence under subsection (1) unless he proves that he has taken all reasonable steps to prevent the recurrence of the offence.
212. (1) Every one who
. . .
(j) lives wholly or in part on the avails of prostitution of another person,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
213. (1) Every person who in a public place or in any place open to public view
. . .
(c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person
for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction.
III. Prior Decisions
A. Ontario Superior Court of Justice (Himel J.)
[17] The application judge, Himel J., concluded that the applicants had private interest standing to challenge the provisions. She held that the decision of this Court upholding the bawdy-house and communicating law in the Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 (“Prostitution Reference”), did not prevent her from reviewing their constitutionality because: (1) s. 7 jurisprudence has evolved considerably since 1990; in particular, the doctrines of arbitrariness, overbreadth and gross disproportionality had not yet been fully articulated and therefore were not argued or considered in the Prostitution Reference; (2) the evidentiary record before her was much richer, based on research not available in 1990; (3) the social, political and economic assumptions underlying the Prostitution Reference may no longer be valid; and (4) the type of expression at issue differed from that considered in the Prostitution Reference.
[18] In considering the legislative scheme as it exists and the evidence before her, Himel J. found that 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). The increased risk of violence created by the laws constituted a “sufficient” cause, engaging the security of the person protected by s. 7. She stated:
With respect to s. 210, the evidence suggests that working in-call is the safest way to sell sex; yet, prostitutes who attempt to increase their level of safety by working in-call face criminal sanction. With respect to s. 212(1)(j), prostitution, including legal out-call work, may be made less dangerous if a prostitute is allowed to hire an assistant or a bodyguard; yet, such business relationships are illegal due to the living on the avails of prostitution provision. Finally, s. 213(1)(c) prohibits street prostitutes, who are largely the most vulnerable prostitutes and face an alarming amount of violence, from screening clients at an early, and crucial stage of a potential transaction, thereby putting them at an increased risk of violence.
In conclusion, these three provisions prevent prostitutes from taking precautions, some extremely rudimentary, that can decrease the risk of violence towards them. Prostitutes are faced with deciding between their liberty and their security of the person. Thus, while it is ultimately the client who inflicts violence upon a prostitute, in my view the law plays a sufficient contributory role in preventing a prostitute from taking steps that could reduce the risk of such violence. [paras. 361-62]
[19] Himel J. concluded that the deprivation of security thus established was not in accordance with the principles of fundamental justice, notably the requirements that laws not infringe security of the person in a way that is arbitrary, overbroad or grossly disproportionate.
[20] Himel J. found the bawdy-house provision (s. 210) overbroad because it extended to virtually any place and allowed for convictions that were unrelated to the objective of preventing community nuisance. And the harms it inflicted were grossly disproportionate to the few nui