This is a part of a paper that my partner, Ferishta Saboor, and I submitted for our class, Constitutional Litigation (which is by far the most important and useful class I have ever taken in law school). For the paper, we had to craft a constitutional challenge, including the parties, strategy, evidence, etc. Ferishta created the table and it is an excellent table (analysis by both of us)! For sake of this post, I added some edits to help provide clarification on some points which were not clear without the context of the entire paper. Please contact me (via the contact tab) if you would like to use the information or cite the information for a project or paper.
The SCC held that the three impugned provisions – common bawdy house, living of the avails of prostitution, and communicating in public for the purposes of prostitution – violate section 7 of the Charter and this violation is not in accordance with the principles of fundamental justice (PFJ).
The SCC indicated that these provisions “do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution (emphasis in original).”[1]
Despite this recent ruling, the then-Conservative government proposed and passed a law that does exactly what the SCC has held to be unconstitutional.
In order to demonstrate how the new prostitution provisions violate section 7 of the Charter and that these provisions are contrary to Bedford, the following chart is included as a blunt and deliberate delineation of the provisions’ unconstitutionality.
| Analysis in Bedford | Current Prostitution Laws |
| [60] The prohibitions at issue do not merely impose conditions on how prostitutes operate. 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.
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Though the prostitution provisions have some exceptions to the material benefit provisions, the provisions assume that people who set up a commercial enterprise to provide screening, transportation or advertising services are exploiting sex workers. In northern or rural regions, many sex workers either have to work alone, work in groups or work for an agency. However, the material benefit provisions assume that anyone, even if they are another sex worker, is exploiting a sex worker. By preventing sex workers from working together, the provisions force sex workers to work alone and thus, impose dangerous conditions on sex workers. |
| [61] It is not an offence to sell sex for money. The bawdyhouse provisions, however, make it an offence to do so in any “place” that is “kept or occupied” or “resorted to” for the purpose of prostitution […]. The reach of these provisions is broad. | The new provisions define prostitution as a harm to individuals and society.[2] Though the new provisions do not criminalize keeping a bawdy house for the purposes of prostitution, the provisions still criminalize keeping a bawdy house for indecent purposes, where indecent is defined as a harm to individual or society.[3] If prostitution is defined as harmful to society, then the definition of a bawdy house assumes an indecent house is kept for the purposes of prostitution where an indecent house and prostitution are both defined as harmful to society and individuals. Thus, the provisions force sex workers from setting up indoors and implementing indoor safeguards by assuming they are the source of the harm to society. |
| [64] First, the prohibition prevents prostitutes from working in a fixed indoor location, which would be safer than working on the streets or meeting clients at different locations, especially given the current prohibition on hiring drivers or security guards. This, in turn, prevents prostitutes from having a regular clientele and from setting up indoor safeguards like receptionists, assistants, bodyguards and audio room monitoring, which would reduce risks.
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Same as above. |
| [67] Hiring drivers, receptionists, and body guards, could increase prostitutes’ safety (application decision, at para. 421), but the law prevents them from doing so. Accordingly, I conclude that s. 212(1)(j) negatively impacts security of the person and engages s. 7. | The Material Benefit Provisions prevent sex workers from creating safer work conditions including sharing services, like screening, transportation or advertising services either explicitly or implicitly under a commercial enterprise. The Material Benefit Provisions, despite the exceptions, assume all interactions with sex workers, regardless of the nature of the relationship, are exploitative since the law assumes prostitution to be inherently exploitative.[4] By merely sharing in the benefit from the consideration for sexual services, anyone who has a relationship (professional or personal) with a sex worker is assumed to be exploiting the sex worker. Further, the law also prohibits other third party safety enhancing measures, including online advertising (which is a screening service). |
| [72] By prohibiting communicating in public for the purpose of prostitution, the law prevents prostitutes from screening clients and setting terms for the use of condoms or safe houses. In these ways, it significantly increases the risks they face. | The Advertising Provision prevents sex workers from accessing safer clients through screening services by forcing sex workers to accept dangerous clients under haste in an attempt to avoid arrest or detention. Other screening services include online advertising and prohibiting a sex worker from taking steps to avoid a dangerous client triggers the section 7 Charter violation. |
Principles of Fundamental Justice
| Bedford | Current Prostitution Laws |
| Bawdy House Provisions
[136] Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes. A law that prevents street prostitutes from resorting to a safe haven such as Grandma’s House while a suspected serial killer prowls the streets, is a law that has lost sight of its purpose.
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A law that prohibits sex workers from taking steps to ensure they avoid dangerous or violent clients has lost sight of its purpose. |
| Living on the Avails
[142] The question here is whether the law nevertheless goes too far and thus deprives the applicants of their security of the person in a manner unconnected to the law’s objective. The law punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes (for example, controlling and abusive pimps) and those who could increase the safety and security of prostitutes (for example, legitimate drivers, managers, or bodyguards). It also includes anyone involved in business with a prostitute, such as accountants 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 the avails provision is therefore overbroad. |
The Trafficking Provisions assume that all relationships between a sex worker and others, especially those who receive a material benefit from a sex worker’s services, are exploitative and force sex workers to work alone especially in northern or rural areas; thus, these provisions prevent sex workers from assessing potential dangerous clients by prohibiting sharing of information amongst each other or forcing sex workers to work in areas away from police detection. Preventing sex workers from taking steps to avoid potential dangerous clients is the same situation that Chief Justice outlined as violating a sex workers’ section 7 Charter rights. |
| Communication Provisions
[158] The assessment is qualitative, not quantitative. If screening could have prevented one woman from jumping into Robert Pickton’s car, the severity of the harmful effects is established. |
If the laws prevent only one sex worker from taking steps to implementing safety measures or working with others, including other sex workers, then the harms of the law are established. A law that seeks to save or protect many victims[5] cannot outweigh the effect of criminalization sex work: violation of a sex worker’s section 7 Charter rights. The violation of a sex worker’s section 7 Charter rights is one sex worker too many. |
Section 1
| Bedford | Current Prostitution Laws |
| [162] In particular, the Attorneys General attempt to justify the living on the avails provision on the basis that it must be drafted broadly in order to capture all exploitative relationships, which can be difficult to identify. However, the law not only catches drivers and bodyguards, who may actually be pimps, but it also catches clearly non exploitative relationships, such as receptionists or accountants who work with prostitutes. The law is therefore not minimally impairing. Nor, at the final stage of the s. 1 inquiry, is the law’s effect of preventing prostitutes from taking measures that would increase their safety, and possibly save their lives, outweighed by the law’s positive effect of protecting prostitutes from exploitative relationships. | The law assumes all relationships between sex workers and others parties are exploitative. For instance, while the provisions allow exceptions, these exceptions do not include sex workers who may receive material benefit from other sex workers’ sexual services or do not include commercial enterprises, whether they are run by a sex worker or someone else providing protective services like security in a strip club.[6] Also, the law assumes sex work to be inherently exploitative, including any relationship a sex worker has with other sex workers and non-sex workers, and consequently, sex work exploits sex workers; the law attempts to define all sex work as exploitation. These laws by their very intent and purpose are too broad. When the law is too broad and captures non-exploitative relationships and situations, it is not minimally impairing. |
[1] Canada (AG) v Bedford, 2013 SCC 72 at para 60.
[2] Bill C-36, An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v Bedford and to make consequential amendments to other Acts, 2nd Sess, 41st Parl, 2014, cl 49 (assented to 6 November 2015) [Bill C-36] at “Preamble”.
[3] Lyne Casavant and Dominique Valiquet, Legal and Social Affairs Division, Library of Parliament, “Legislative Summary of Bill C-36: An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v Bedford and to make consequential amendments to other Acts“, Publication Number 41-2-C36-E (18 July 2014), online: Library of Parliament <http://www.lop.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?Language=E&ls=C36&Mode=1&Parl=41&Ses=2&source=library_prb#a2>.
[4] See Bill C-36, “Preamble”.
[5] Hon Peter MacKay, June 4, 2014, https://openparliament.ca/debates/2014/6/11/peter-mackay-4/.
[6] Canada, Department of Justice, Technical Paper: Bill C-36, Protection of Communities and Exploited Person Act, March 2015 update (Ottawa: Department of Justice, 2015), online: Department of Justice <http://www.justice.gc.ca/eng/rp-pr/other-autre/protect/p1.html>. See also, Hon Peter MacKay, June 4, 2014, https://openparliament.ca/debates/2014/6/11/peter-mackay-4/.
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