Imminent SCC Decision on Leave Application for Sex Work Challenge

The Supreme Court of Canada is expected to release its decision tomorrow on the leave for appeal and cross-appeal filed in Canada (Attorney General) v. Bedford, 212 ONCA 186.

At issue in the Bedford application are three Criminal Code provisions: s. 210, which prohibits the operation of common bawdy-houses (any place that is used regularly for the purpose of prostitution); s. 212(1)(j), which prohibits living on the avails of prostitution (preventing anyone from profiting from another’s sex work); and s. 213(1)(c), which prohibits communicating for the purpose of prostitution in public. The applicants challenge these provisions as a violation of their section 7 Charter rights to liberty and security of the person.

At the Superior Court of Justice, Justice Himel deemed all three provisions unconstitutional. In their March 2012 decision, the five-member panel of the Court of Appeal agreed that s. 210 (the bawdy house provision) was unconstitutional, and struck it down. They also agreed that s. 212(1)(j) (the living on the avails provision) was unconstitutional, but read in a limitation such that the prohibition applies only to those who live on the avails of prostitution “in circumstances of exploitation.”

The Court of Appeal split on s. 213(1)(c) (the communication provision). Justices Doherty, Rosenberg, and Feldman held that street-level sex work was a social problem, and as such, the nuisance associated with it outweighed any section 7 deprivations. More importantly, the majority held that given the harm that street-level sex workers already face due to what they characterized as “social, economic, personal and cultural factors,” they could not quantify the harm that was caused to street-level sex workers by the communicating law.

Justices MacPherson and Cronk strongly disagreed, stating that the communication provision was grossly disproportionate to its legislative objectives. In direct contrast to the majority analysis, Justices MacPherson and Cronk held that the pre-existing vulnerabilities of sex workers who work on the streets – vulnerabilities arising from gender, race, sexual orientation and disability, all of which are enumerated or analogous grounds under section 15 of the Charter – are exacerbated by the communicating provision, and thus increase the detrimental impact of the law.

It promises to be a hot, dense debate at our highest Court, one that will go to the basic underlying values of our Charter of Rights and Freedoms. Fingers crossed for tomorrow.

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