There are a myriad of moral and legal grounds to object to or support prostitution. However, rarely has the health and safety of those who work in prostitution been as central to the reasoning of a court as it was in the Ontario Court of Appeal’s (ONCA) decision in Bedford v Attorney General of Canada. This decision was recently argued on appeal before the Supreme Court of Canada (SCC). This post takes a closer look at the ONCA’s decision – a decision that is exceptional in its sensitivity to one of the most vulnerable and marginalised groups in Canadian society.
Prostitution is legal in Canada, but currently much of the associated activity is criminalised. Sections 210, 212(1)(j) and 213(1)(c) of the Criminal Code criminalise the operation of a common bawdy house, prohibit living on the avails of prostitution and communication for the purposes of prostitution in public. Three women working in prostitution argued these provisions were unconstitutional, as they violated the right to life, liberty and security of the person, section 7 of the Canadian Charter. Section 7 holds these rights cannot be deprived except in accordance with the principles of fundamental justice. The three women argued the Criminal Code provisions were not in accordance with the principles of fundamental justice, namely that they were over-broad and grossly disproportionate.
Whereas previous decisions of Canadian courts had focused on public order and morality the ONCA’s places the safety of the prostitute at the centre of its reasoning. The ONCA accepted that prostitutes working on the street are at a high risk of being victims of physical violence. The risk of violence can be reduced by working indoors, in close proximity to others, by hiring security staff and by taking time to screen clients. By looking at the factual and social context, the ONCA concludes the criminal prohibitions on the activities associated with prostitution do increase the risk of serious physical harm and impairs the security of the person; thus prima facie violating section 7 of the Charter.
The Court then proceeds to the principles of fundamental justice analysis. The bawdy-house provisions were struck down by the ONCA because they were overbroad as it prohibits single prostitutes working alone from their own home which is unlikely to cause significant disruption. More interestingly, the ONCA held by criminalising bawdy-houses the impact on prostitutes is extreme. The increased risk of violence and harm to prostitutes means the legislation is grossly disproportionate to its objective and therefore is unconstitutional. With respect to living off the avails, the ONCA similarly concludes the legislation is overbroad and grossly disproportionate as it prohibits prostitutes from hiring personnel to ensure their safety. Rather than strike down this section, the ONCA prefers to amend the section to prohibit living off the avails of prostitution in circumstances of exploitation.
However, a majority of the ONCA held the prohibition on communication is constitutional. While the chance to screen clients may decrease the risk to the prostitute, it is not a “dominant or even significant factor [that] place survival sex workers at significant risk on the street.” On the other hand, the dissent concluded the communication prohibition was also unconstitutional. By prohibiting public communication the law displaced prostitutes into isolated areas and discouraged them from working together increasing their safety risks. This means it violated the prostitute’s security interest.
What is encouraging about the ONCA’s decision is that rather than debate on the morality of prostitution or the importance of quiet and orderly neighbourhoods and streets, the ONCA squarely addressed how the law increases the risks of serious bodily harm to those who work in prostitution. Not only did it focus on the prostitute, but it allowed their interests to triumph. The importance of safety for prostitutes in real and significant as the gruesome murders carried by Robert Pickton clearly demonstrate. It can only be hoped that the SCC will follow the ONCA’s lead and place those who work in prostitution at the centre of their decision.
Meghan Campbell is a DPhil Candidate in Law at the University of Oxford