Canada (Attorney General) v. Bedford

Author: Beverley McLachlin C.J. (Chief Justice of the Supreme Court of Canada, 2013)

Citation (APA): Canada (Attorney General) v. Bedford, 2013 SCC 72.

Summary:

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.

[…]

Held:  The appeals should be dismissed and the cross‑appeal allowed.  Sections 210, 212(1)(j) and 213(1)(c) of the Criminal Code are declared to be inconsistent with the Charter.  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 Referencethat s. 213(1)(c) does not violate s. 2(b) since it is possible to resolve this case entirely on s. 7 grounds.

[…]

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 imposingdangerous 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.

Read the full decision here: http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/item/13389/index.do

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