Supreme Court Rules for Bedford
The Supreme Court of Canada has released its decision in Attorney General of Canada, et al. v. Terri Jean Bedford, et al., the case involving prostitution that has been before Ontario courts eight times. In a 9-0 judgment delivered by the Chief Justice the Court dismissed the appeal by the Attorney-General and allowed the cross-appeal by Terri Bedford.
From the headnote:
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 Reference that s. 213(1)(c) does not violate s. 2(b) since it is possible to resolve this case entirely on s. 7 grounds.
The summary of the case, taken from the Supreme Court site, is as follows:
The respondents, former and current sex trade workers, challenged the constitutional validity of s. 210 (keeping common bawdy houses) as it relates to prostitution, s. 212(1)(j) (living off the avails of prostitution), and s. 213(1)(c) (communicating for the purpose of prostitution) of the Criminal Code. The trial judge held that these provisions breach the respondents’ right to security of the person under s. 7 of the Charter of Rights and Freedoms and that s. 213(1)(c) breaches s. 2(b) of the Charter. The Court of Appeal allowed an appeal in part. It held that it was not open to the trial judge to review whether s. 213(1)(c) breaches s. 2(b) of the Charter because that issue was decided in Reference Re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123. It held that all three provisions infringe the respondents’ security of the person. It held that s. 213(1)(c) does not violate principles of fundamental justice and should remain in force and effect. It held that s. 210 should be struck and the limiting words “in circumstances of exploitation” should be read into s. 212(1)(j).
Slaw will have some reasoned commentary on this important case in the next few days.
I hope that the reasoned commentary will address a couple of questions about the timing of the remedy:
(i) what is it about the invalidated provisions that makes it appropriate that they should stay in force for a year while Parliament tries to replace them with something less offensive under the Charter? Why not just invalidate them, and let Parliament try to come up with something valid without a deadline?
(ii) where does the court get the power to suspend the effect of declarations of invalidity? I recognize that courts do this frequently now, though I don’t think they did in pre-Charter days (examples, anyone?) How can a court say ‘this is unconstitutional but it doesn’t matter till next year’? Meanwhile, prosecutions, convictions and jailings can continue.
Although it’s not a pre-Charter case, the SCC its authority to suspend the effect of its decision in Reference re: Manitoba Language Rights,[1985] 1 S.C.R. 721 which was a non-Charter case.
John, thank you for raising the most important question arising from this SCC ruling: “Where do we go from here?” The court has declared that judicial and legislative settings defining the constitutionality of this case are different and that the Criminal Code does not support harm reduction. I am also questioning why it should take a year to draft and pass legislation that would make prositution safer. The only answer I can think of is that this “difference” is entirely due to separtion of powers which, if fully exercised, by the courts in Bedford, would leave few laws on prostitution in the Criminal Code. The court’s role is not drafting and enacting legislation but rather to continue to share responsibility for resolving Charter conflicts with parliament. I think the court is very aware of how much time parliament needs to get it right. I am hoping this will be time well spent in support of the Charter and this SCC decision.
Stephen left out his main verb in his comment – I think it was probably going to be ‘first exercised’ or at least ‘exercised’. Now that he reminds me, I think it may have been close to the first.
I certainly understand the usefulness of the device – especially in a radical case like the Manitoba language reference, which could have left the province with no operative legislation until the legislature translated and re-enacted its laws. But the invalidation of any complex regulatory system can cause transitional problems or problems of public order.
That still leaves my questions: where does this useful power come from (and maybe the Manitoba case explains its principle)? and why is it needed in Bedford, for the provisions that were invalidated? Does it really matter if someone lives off the avails of prostitution for a few months, till a new law is enacted that controls it?
It continues to be my understanding (since I first commented on this problem in relationship to the Edgar Schmidt lawsuit), that for “disappearing ink” to occur, the judicial decision needed to include an order of removal, by the Attorney General, which would invoke provisions to declare the legislation as constitutionally invalid. In theory, these flawed laws would immediately disappear from the Criminal Code. The court did not take this necessary step but that is not to say that parliament can’t undertake the task without delay.
I think it might be very prudent for parliament and the court to work closely on Bedford, et al., to ensure a comprehensive and speedy resolution to this intermissionary break, in the Criminal Code, until new legislation is in place.The safety and security of sex trade workers must be the first priority.
To pick up on John’s concern about suspension: what is the status of those already convicted under sections that are now [seen to be] [declared prospectively to be] [are, but not yet] in violation of the convicted person’s Charter rights? what of someone charged now: does he or she have the ability (or the burden) of arguing that Charter rights have been violated, or is it now settled and all that’s needed is to wave Bedford? what in heaven’s name is a judge to do: say to the accused, I have to violate your Charter rights and, so, convict you because the offending laws are still in force but come back in a bit and I’ll undo it? In theory, I suppose, there was a brief bit of time — a scintilla juris – in which an accused — Bedford — could be not guilty because of the incompetence of the criminal laws, but before and after that, assuming the government passes some compliant but still punitive legislation, no dice.
The Court claims to ground the power to suspend the declaration in section 52 but it is nothing more than judicial fiat. It is a result that is quite inconsistent with any understanding of constitutional supremacy. Its use could be defended in a extreme situation like Manitoba’s where an immediate declaration would have resulted in a jurisdiction no longer governed by law. Of course, it has inevitably been expanded beyond all reason. It has become conventional. The Court’s treatment of the suspension in Bedford, in fact, is so casual as to amount to: “whatever.”
In my opinion, this 9-0 judgment was primarily an example of judicial activism: intervention over the decisions of policy makers to right error in law thru a unamimous decision as the policy of the court. Personally, I would not classify this level of important judicial attention, to producing change and righting wrongs that are brought before it, as arbitrary. The secondary but equally vital component, in this judgment, is the use of judicial restraint: the court is limited to bringing about broad social changes or create new policy and therefore, must share the deference on policy with other political bodies (parliament). What is left? The judges have an incredibly important role to play, as arbitrators during this time of “suspension”, to level the playing field in compliance with the SCC Charter ruling in Bedford. Until new legislation is enacted, the courts must function as an apparatus for intervention in addressing the flaws of the Criminal Code . Canadian judges can act as the “Bridge Over Troubled Water” by continuing to right errors in law thru their decisions.