Earlier this year, I argued that the ONCA gave a comprehensive and nuanced assessment of Canada’s criminal provisions on prostitution. The Supreme Court of Canada in a unanimous decision upheld the ONCA’s ruling and struck down these provisions as unconstitutional because they materially increase risk of harm for those who work in the sex trade.
Prostitution is legal in Canada but prior to Bedford much of its associated activity was criminalised. The applicants in this case argued that the prohibition against running a brothel, living off the avails of prostitution and communication in public for the purposes of prostitution violated their constitutional rights to security of the person (sections 210, 212(1)(j) and 213(1)(c) Criminal Code). The Supreme Court agreed with the applicants as the law prevented prostitutes from implementing safety measures such as hiring bodyguards, working indoors or properly screening potential clients. This decision is one step further than the ONCA as the Supreme Court ruled the prohibition on communication was unconstitutional.
Similarly to the ONCA, the Supreme Court relied on the trial judge’s evaluation of the factual and social science evidence. The prohibition against brothels meant that sex-workers were forced outdoors and could not use receptionists, perform health checks or have safe-houses. Criminalising living off the avails of prostitution did not allow sex-workers to hire drivers or bodyguards. Prohibiting public communication limits face to face screening time and forces sex-workers into back alleys. All these prohibitions were held to materially increase the risk of harm to sex workers.
Under section 7 it is not sufficient that the security interest be engaged, a court must also consider whether the provisions are consistent with the principles of fundamental justice: proportionality and breadth. The Court explains that the law will be unconstitutional if it is grossly disproportionate. Under the equality provisions of the constitution there is no requirement to demonstrate that a certain number of people experience the grossly disproportionate effects; if one person is disproportionately affected, this suffices. Therefore, the applicants do not have to spend time and resources showing that a disproportionate number of sex-workers are negatively affected by the law. Rather, they need only present evidence of their own experience.
The purpose of the prohibition against brothels was to prevent neighbourhood disruption. While the law achieves this aim, it is grossly disproportionate as it significantly increases the risk of serious harm to sex workers. Similarly, the communication prohibition is meant to prevent the nuisance of street prostitution and remove it from public view. This is also grossly disproportionate as it removes an essential tool for safety. While the prohibition of living off the avails of prostitution is meant to ensure sex-workers are not exploited, the law is overbroad as it captures relationships that could increase safety.
The Attorney-General of Canada tried to argue that the laws were only unconstitutional if there was direct causation between the criminal provisions and the harm. However, the Supreme Court only required a sufficient causal connection: a reasonable inference between the evidence and the prejudice. The applicants did not need to definitively prove these measures would increase their safety, it was sufficient that there was the possibility that they could.
The Attorney General also argued that because sex workers had freely chosen an inherently risky profession they have to live with these risks. The Court rejects this argument. First, Chief Justice McLachlin questions whether sex-workers are “people who can be said to be truly ‘choosing’ a risky line of business” (para 86). Second, the exchange of sex for money is legal, the key question is whether the law makes this lawful activity more dangerous. Violence from clients “does not diminish the role of the state in making a prostitute more vulnerable to that violence” (para 89).
In light of the reasoning in this judgment, it is surprising that the Court suspended the declaration of invalidity. This means that the Canadian government has one year to introduce new legislation regulating prostitution before the current provisions will be null and void. The Court does not offer any specific guidance on future regulation. However, its repeated emphasis on the safety of sex-workers will hopefully be at the centre as policy-makers discuss the next steps.