Bedford v. Canada
|Bedford v. Canada|
|Court||Court of Appeal for Ontario|
|Full case name||Attorney General of Canada and Attorney General of Ontario v. Terri Jean Bedford, Amy Lebovitch and Valerie Scott|
|Date decided||March 26, 2012|
|Citation(s)||2012 ONCA 186|
|Judges sitting||Doherty, Rosenberg, Feldman, MacPherson and Cronk JJ.A|
|Decision by||Doherty, Rosenberg, and Feldman JJ.A (majority); MacPherson J.A. (dissenting in part, joined by Cronk J.A.)|
|Prior action(s)||Judgment against the Attorney General of Canada and the Attorney General of Ontario.|
|Appealed from||Ontario Superior Court of Justice|
|Appealed to||Supreme Court of Canada, leave to appeal and cross-appeal granted|
|(1)The criminal prohibition against communicating for the purpose of prostitution in public is constitutional.
(2)The criminal prohibition against the operation of common bawdy-houses is unconsititutional to the extent that it includes prostitution-related activity.
(3)The criminal prohibition against living on the avails of prostitution is constitutional as long as it is read-down to only include those who do so "in circumstances of exploitation".
Bedford v. Canada is a legal challenge to Canada's prostitution laws. The applicants, Terri-Jean Bedford, Amy Lebovitch and Valerie Scott, argued that Canada's prostitution laws were unconstitutional. The Criminal Code of Canada includes a number of provisions outlawing public communication for the purposes of prostitution, operating a bawdy house or living off of the avails of prostitution. However, prostitution itself is legal. The applicants argued that the laws deprive sex workers of their right to security by forcing them to work in secret. In 2012, the Court of Appeal for Ontario ruled that some, but not all, of these prohibitions violated the Canadian Charter of Rights and Freedoms and were unconstitutional. The case is currently on appeal to the Supreme Court of Canada.
While prostitution is legal in Canada, most activities related to prostitution are illegal. Prohibitions include:
- Prohibiting the operation of common bawdy-houses (section 210 of the Criminal Code of Canada). This prevents prostitutes from offering their services out of fixed indoor locations such as brothels, or even their own homes.
- Prohibiting living on the avails of prostitution (section 212(1)(j) of the Criminal Code of Canada). This prevents anyone, including but not limited to pimps, from profiting from another’s prostitution.
- Prohibiting communicating for the purpose of prostitution in public (section 213(1)(c) of the Criminal Code of Canada). This prevents prostitutes from offering their services in public, and particularly on the streets.
Many of these prohibitions were found constitutional by the Supreme Court of Canada in 1990 in the Prostitution Reference case. In 2007, court proceedings began in Ontario to re-challenge the constitutionality of these prohibitions, on the basis that it created significant harm to prostitutes and other sex workers.
The three applicants all work or worked in the sex trade and Amy Lebovitch and Valerie Scott are members of Sex Professionals of Canada (SPOC), an organization which campaigns for the rights of sex workers and the full decriminalization of prostitution.
Terri-Jean Bedford, born 15 October 1959, was formerly a prostitute and now works as a professional dominatrix. Bedford formerly operated an S&M dungeon in Thornhill, Ontario, called Madame de Sade's House of Erotica, but dubbed the Bondage Bungalow by the press. In 1994 she was charged with operating a bawdy house, and was convicted in 1999. Throughout the Superior Court trial, Bedford's appearance was notable, dressing all in leather and always appearing with a black leather riding crop.
Amy Lebovitch, born 24 January 1979, has worked in the sex industry since she was 18. She has worked on the street, indoor (independently and with an agency) and in a fetish house. She has also studied criminology and psychology at the University of Ottawa and social work at Ryerson University in Toronto. As of 2013, she continues to work as a sex worker in Ontario and beyond and is the Executive Director for SPOC.
Valerie Scott, born 9 April 1958, entered the sex trade when she was 24. She worked on the street, independent indoor, escort and in massage parlours. Scott became an activist in 1985 when she joined SPOC (known as the Canadian Organization for the Rights of Prostitutes at the time). She served as the executive director of SPOC from 2004 to 2011 and is now SPOC's Legal Coordinator. For the past 27 years, Scott has spoken at numerous parliamentary committees, universities, community organizations and to the media about the need for decriminalization.
The trial took place in Toronto over seven days in October 2009 in the Ontario Superior Court of Justice. The applicants were represented by Alan Young, a professor of law at Osgoode Hall Law School. Young stated that he brought the challenge forward because the state of the law in Canada made it legal to engage in the act of prostitution, but illegal to be indoors, hire bodyguards or help and to screen clients. One witness, Professor John Lowman of Simon Fraser University, provided evidence that working outside is more dangerous for prostitutes, raising the example of serial-killer Robert Pickton who preyed on streetwalkers.
The federal and provincial governments argued that prostitution is exploitative and harmful to the community. The federal government called experts such as Dr. Janice Raymond of the Coalition Against Trafficking in Women and Dr. Melissa Farley of Prostitution Research and Education. Witnesses for the Crown argued that indoor prostitution is no less risky than outdoor prostitution and that prostitution in any form is inherently dangerous. In addition to the Attorney General of Ontario, other parties granted intervenor status in the case included the Catholic Civil Rights League, the Christian Legal Fellowship and REAL Women of Canada. These intervenors filed a joint submission stating that a majority of Canadians hold prostitution to be immoral and that 80% of Canadians belong to religions supporting this view.
On September 28, 2010, Justice Susan Himel issued her decision after one year of deliberation. She struck down Canada's prostitution laws, specifically sections 210, 212(1)(j) and 213(1)(c). An Angus Reid poll shortly after the decision found 49% of Canadians approved of the decision of Justice Himel, and 34% were opposed, however there was considerable variation by age, gender and province.
Court of Appeal for Ontario
Justice Himel originally allowed a stay of 30 days to permit appeal. Justice Minister Rob Nicholson stated that the Federal Government would appeal the court ruling and seek a stay pending that decision. The Ontario Government, which had intervenor status in the case, supported the appeal and did not seek any Parliamentary discussion of the state of the prostitution laws in Canada.
On October 15, a further stay effective till November 27 was granted to allow the Justice Department to prepare an appeal, and, on November 22, the Government sought a further stay in the court of appeal, claiming dire consequences if the decision was applied.  Mr Justice Marc Rosenberg rebuked the Crown for overstating the consequences of allowing the decision to stand. Judgment was reserved, the parties agreeing to extend the stay until judgment was delivered. On December 2, the court granted an extension of the stay until April 2011, on the grounds of preserving the status quo and that the full appeal should have been heard by then.
In March 2011, the Government filed its brief and applied for and obtained a further stay till the hearing of the appeal in June 2011. They also asked for a further 18-month stay should the appeal be unsuccessful. In its brief the Justice Department made a number of arguments in addition to claims of errors in law: prostitution is inherently harmful, Parliament enacted the provisions to discourage this activity, and the impugned provisions met the stated objectives, were not arbitrary or overbroad, and therefore should stand. Furthermore, it challenged the legal standing of two of the three applicants. The claims that the stated harms were due to sex workers flouting the law, and that there was not a duty of protection to sex workers, since they voluntarily entered a dangerous occupation, were the ones picked up by the media. 
Seven additional parties, including the Canadian Civil Liberties Association, the British Columbia Civil Liberties Association, the Canadian HIV/AIDS Legal Network and the Prostitutes of Ottawa/Gatineau Work, Educate and Resist (POWER), were granted intervenor status as amici curiae, however Maggie's, a sex worker organization  was denied this on March 16, since they sought to raise new constitutional issues under section 15. They were however invited to join one of the existing groups. 
On March 26, 2012 the Court of Appeal struck down the bawdy house provisions as unconstitutional and amended the Criminal Code provisions to clarify that the prohibition on living on the avails of prostitution (pimping) applies only to those who do so “in circumstances of exploitation.”  However, the Crown’s appeal of the communicating for the purposes of prostitution was successful, as the Court of Appeal ruled this law does not violate the prostitutes’ Section 7 rights and is a reasonable limit on the right to expression. This means street prostitution, where prostitutes solicit business in public, still remains effectively illegal.
The Court of Appeal stayed the effect of their ruling on the law against operating a common bawdy-house for 12 months to give Parliament an opportunity to amend the law in a manner that does not infringe the Charter.
Supreme Court of Canada
On Thursday, October 25, 2012, the Supreme Court of Canada granted leave to the Crown's appeal and to the respondents' the cross-appeal of the Bedford decision. They extended the stay on the striking down of the bawdy-house law until the date of the trial. The Supreme Court of Canada heard the case on June 13, 2013.
In Bedford v. Canada, lawyer Ron Marzel supported the striking down of Canada's anti-prostitution laws as unconstitutional, saying that "there are consenting adults who want to go into" prostitution. Natasha Falle, a former prostitute who helped the Crown formulate their appeal of the decision of the Ontario Superior Court of Justice, was angered by this statement by Marzel, responding that 97% of prostitutes are not engaging in prostitution by choice, and that "the voices of the overwhelming majority of women who want to get out of prostitution are being drowned out by a vocal few." In discussion of Bedford v. Canada, executive director of Sex Professionals of Canada Nikki Thomas made reference to Robert Pickton murdering of several prostitutes, and said that Pickton would not have been able to murder these prostitutes if the law allowed prostitutes to work in escort agencies or red-light districts where they could require their clients to show identification. Falle responded that, even if such prostitution establishments were legalized, these prostitutes would never have been allowed to work in such places because desperate situations led these women to prostitution, just as will continue to be the case for many other women even if the laws change. Falle said, in order to determine whether women engage in prostitution by choice, it is better to look at the relevant statistics rather than ask individual women who are currently prostitutes because to ask a prostitute "Do you like what you're doing? Do you want to leave your abuser?" is like asking the same questions to a battered woman; they are usually conditioned to respond that they do not want to leave. Falle said that women enter the sex industry because of "unresolved personal issues," which often includes abuse or trauma.
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- Attorney General of Canada et al. v. Terri Jean Bedford et al., 2012 CanLII 64742 (SCC)