Canada, two levels of Ontario courts ruled that a selection of criminal laws prohibiting prostitution-related activities unjustifiably deprive sex workers of their right to liberty and security of the person. In this paper, the authors clarify misconceptions about the constitutional foundations and implications of Bedford, and explore how the ruling might affect legal and policy-based interactions among various stakeholders.
B, L and S, current or former prostitutes, brought an application seeking declarations that three provisions of the Criminal Code, R. B, L and S also alleged that s.
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. The Ontario Court of Appeal agreed s. The court declared that s. It further held the communicating prohibition under s. The Attorneys General appeal from the declaration that ss. 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. i
It is not necessary to determine whether this Court should depart from or revisit its conclusion in the Prostitution Reference that s. 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 ificant 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. Furthermore, the principles of fundamental justice considered in the Prostitution Reference dealt with vagueness and the permissibility of indirect criminalization.
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The application judge was not, however, entitled to decide the question of whether the communication provision is a justified limit lrostitutes freedom of expression. That issue was decided in the Prostitution Reference and was binding on her. 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. 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.
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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. 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 brdford of the state in making a prostitute more vulnerable to that violence. The analysis is qualitative, not quantitative. The question under s. van
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The harms to prostitutes identified by the courts below, such as being prevented from working in prostltutes 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.
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 becford, for example, legitimate drivers, managers, or bodyguards.
It also includes anyone involved in business with a prostitute, such as ants 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 gind avails provision is consequently overbroad.
The bedford judge and the brothel bust
Third, the purpose of the communicating prohibition in s. While the Attorneys General have not seriously argued that the laws, if found to infringe s. In particular, they attempt to justify the living o the avails provision on the basis that it must be drafted broadly in order to capture all exploitative relationships. The law is therefore not minimally impairing.
Nor, at the final stage of the s. The impugned laws are not saved by s.
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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. Craig, SCC 43 2 S.
Scc 72 (canlii) | canada (attorney general) v. bedford | canlii
Nikolaisen, SCC 33 2 S. Spence, SCC 71 3 S.
Burns, SCC 7 1 S. Khadr, SCC 3 1 S. Demers, SCC 46 2 S.
Khawaja, SCC 69 3 S. Clay, SCC 75 3 S. Director of Public Prosecutions,  A. Criminal Code, S. Rules of Civil Procedure, R. Authors Cited Canada. House of Commons. Coke, Edward. Rubin, Gerald.
Bedford hill prostitution clampdown hailed a success
Stewart, Hamish. Arvay, Q. Glowacki and M. Walid Hijazi, for the intervener the Simone de Beauvoir Institute.