—Vanessa MacDonnell, University of Ottawa Faculty of Law
On December 20, the Supreme Court of Canada ruled in one of the most anticipated cases of 2013: Canada (Attorney General) v Bedford[i], a constitutional challenge to three prostitution provisions of the Criminal Code of Canada.[ii] These provisions made it an offence to keep a common bawdy house, live on the avails of prostitution, and to communicate in public for the purposes of engaging in prostitution.[iii] Three sex workers challenged the provisions on the grounds that they violated their freedom of expression, protected by s 2(b) of the Canadian Charter of Rights and Freedoms[iv], and their right to life, liberty and security of the person, protected by s 7.[v] In a unanimous opinion, the Court struck down all three provisions under s 7 of the Charter.
Anticipation about Bedford came from many quarters. Canadian constitutional law scholars hoped that the Supreme Court would take the opportunity to clarify some of the more technical aspects of its s 7 jurisprudence. They also expected the Court to address questions that had arisen during the litigation about the role of stare decisis and social science evidence when constitutional issues are before the courts. Advocates for and against the decriminalization of sex work were anxious to see how the Court would deal with the broader social issues raised by the case. And the media and the public focussed on the bottom-line issues: would aspects of sex work continue to be criminalized in Canada? And if the Supreme Court struck down the provisions, how would the federal government respond?
The crux of the applicants’ case under s 7 was that the three provisions magnified the risks of sex work (“itself a legal activity,”[vi] as the Court pointed out) by criminalizing a range of safety measures that sex workers might take.[vii] This, the applicants argued, infringed their security of the person in a manner that was inconsistent with the principles of fundamental justice. The bawdy house provisions forced sex workers to engage in “out call” work rather than meeting clients at a place of sex workers’ own choosing.[viii] The avails provision prevented sex workers from retaining the services of bodyguards, drivers or assistants.[ix] And the communication provision prevented sex workers from “screening clients” in a public place.[x] This last prohibition impacted very significantly on street sex workers, “a particularly marginalized population.”[xi]
The Court’s judgment is fascinating on a number of levels. By striking down three longstanding and controversial provisions of the Code, the Court took a decisive step to protect the security of the person of sex workers.[xii] It concluded that as a matter of fact and law, the bawdy house and communication provisions deprived sex workers of their security of the person in a manner that was grossly disproportionate. It further concluded that the avails provision was overbroad in relation to its objective.[xiii] In reaching these conclusions, the Court broke new ground in three areas of Charter jurisprudence.
First, the Court explained that the doctrine of stare decisis retains some flexibility in the Charter context. An inferior court may decline to apply an otherwise binding precedent “when a new legal issue is raised, or if there is a significant change in the circumstances or evidence.”[xiv] “This,” the Court said, “balances the need for finality and stability with the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role.”[xv] The Supreme Court of Canada had dealt with some of the issues raised in Bedford in a 1990 case, the Prostitution Reference.[xvi] For this reason, the courts below had been required to determine whether they had the power to overrule Supreme Court precedent when a similar case presented itself two decades later on different facts and at a more advanced stage of the jurisprudence’s development.[xvii]
The Court’s comments about stare decisis will play an important role in “second generation” Charter cases, in which litigants are seeking more favourable outcomes on constitutional questions decided in the first decades of the Charter. It is important not to overstate the scope of the rule that the Court has laid down, however. The Court held that while the s 7 jurisprudence had shifted sufficiently for the trial judge to reconsider the s 7 issues raised in the Prostitution Reference, she was still bound by the Court’s findings with respect to s 2(b). In other words,
Re-characterizing the type of expression alleged to be infringed [from “commercial expression” to “expression promoting safety”[xviii]] did not convert this argument into a new legal issue, nor did the more current evidentiary record or the shift in attitudes and perspectives amount to a change in the circumstances or evidence that fundamentally shifted the parameters of the debate.[xix]
This suggests that litigants will be on stronger footing where they can argue that the law has shifted since the relevant precedent was decided, as opposed to the evidence or social context. This has somewhat strange consequences where the legal analysis is heavily fact and value-driven, such as under s 1 of the Charter.[xx]
Second, the Court held that appellate courts should defer to the trial judge’s evaluation of the facts, whether those facts were adjudicative, legislative, or social in nature.[xxi] The Court of Appeal had concluded that while deference was owed to adjudicative facts, the same could not be said of social and legislative facts.[xxii] The Court’s discussion of social science evidence is welcome, and will no doubt be of interest to Charter litigants. A lingering question that remains after Bedford is when the courts should defer to the government’s evaluation of social facts.[xxiii] Though the Court has addressed this issue on occasion, it has yet to adopt a single approach.[xxiv] This question will be very important if (and when) the government decides to re-criminalize aspects of sex work in Canada.
Finally, the Supreme Court’s decision in Bedford brings much needed (though not necessarily satisfying) clarity to the s 7 jurisprudence. Litigants raising claims under s 7 must show both that a law or government action infringes their s 7 right to life, liberty and security of the person, and that the deprivation is not in accordance with the principles of fundamental justice. The Court has articulated a range of principles of fundamental justice since 1982, including prohibitions on arbitrariness, overbreadth and gross disproportionality. These three principles are increasingly appearing in tandem in Charter of Rights litigation, and until Bedford, the Supreme Court had declined to elaborate on how they are connected.
In Bedford, the Court confirmed that each of these principles is “distinct,”[xxv] and provided basic definitions of each. While the Court acknowledged that the three principles share some similarities with factors considered under s 1 of the Charter in determining whether an infringement of Charter rights is proportional, the Court was careful to distinguish between the functions of s 7 and s 1.[xxvi] I have argued elsewhere that when arbitrariness, overbreadth and gross disproportionality are considered together, they essentially replicate the analysis under s 1.[xxvii] Continuing to insist upon tenuous distinctions between s 7 and s 1 may therefore prove to be challenging for the Court.[xxviii]
The obvious question for politicians at the federal level following Bedford is, “now what?” The Conservative Government noted in this fall’s Throne Speech that it would “vigorously defend the constitutionality of Canada’s prostitution laws,”[xxix] a rather strange and direct reference to a case that was then under reserve at the Supreme Court. One might infer from this statement that the government intends to respond in some way to the decision, and in fact, Justice Minister Peter MacKay has indicated that the government will introduce new legislation in short order.[xxx] While the government has yet to indicate whether it will employ its criminal law power, that conclusion seems increasingly inevitable.
[i] Canada (Attorney General) v Bedford, 2013 SCC 72.
[ii] Criminal Code of Canada, RSC 1985, c C-46.
[iii] Ibid, s 210 (keeping a common bawdy house), s 212(1)(j) (living on the avails of prostitution); and, s 213(1)(c) (communicating in public for the purposes of engaging in prostitution).
[iv] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c 11, s 2(b): “Everyone has the following fundamental freedoms: (b) freedom of thought, belief, opinion and expression…”
[v] Section 7 of the Charter provides: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
[vi] Bedford, supra at para 59.
[vii] Ibid at para 6.
[viii] Ibid at para 64.
[ix] Ibid at para 66.
[x] Ibid at para 71.
[xi] Ibid at paras 69, 86.
[xii] Brenda Cossman, “What if Ottawa now criminalizes prostitution?” The Globe and Mail (20 December 2013) online: The Globe and Mail <http://www.theglobeandmail.com/globe-debate/what-if-ottawa-criminalizes-prostitution/article16071830˃ (last accessed 7 January 2013).
[xiii] Bedford, supra at paras 134, 139, 159.
[xiv] Ibid at para 44.
[xvi] Reference re ss 193 and 195.1(1)(c) of the Criminal Code (Man.),  1 SCR 1123.
[xvii] See Jula Hughes, Vanessa MacDonnell and Karen Pearlston, “Equality & Incrementalism: The Role of Common Law Reasoning in Constitutional Rights Cases after Bedford (ONCA),” online: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2202437˃ [Hughes, MacDonnell and Pearlston, “Equality & Incrementalism”]; Jula Hughes and Vanessa MacDonnell, “Social Science Evidence in the German Constitutional Court and in the Supreme Court of Canada: Some Comparative Observations” (2013) 32:1 Natl J Constitutional Law 23 [Hughes and MacDonnell, “Social Science Evidence”]. See also Bedford, supra at para 46.
[xviii] Bedford, ibid at para 41.
[xx] Section 1 of the Charter provides that “[t]he Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The leading case on s 1 is R v Oakes,  1 SCR 103. On the narrower point, see Hughes and MacDonnell, “Social Science Evidence,” supra.
[xxi] Bedford, supra at para 48.
[xxii] Canada (Attorney General) v Bedford, 2012 ONCA 186 at para 129.
[xxiii] Hughes and MacDonnell, “Social Science Evidence,” supra.
[xxv] Bedford, supra at para 117.
[xxvi] Ibid at paras 124-128.
[xxvii] Hughes, MacDonnell and Pearlston, supra at 22. See also Hamish Stewart, “Bedford v Canada: Prostitution and Fundamental Justice” (2011), 57 Crim L Q 197 at 213.
[xxviii] See Vanessa MacDonnell, “The Protective Function and Section 7 of the Canadian Charter of Rights and Freedoms” (2012), 17 Review of Constitutional Studies 53.
[xxix] Office of the Prime Minister, Speech from the Throne, online: Office of the Prime Minister <http://www.speech.gc.ca/eng/full-speech˃ (last accessed 7 January 2013).
[xxx] Don Martin, Power Play, online: CTV News <http://www.ctvnews.ca/video?clipId=270757&playlistId=1.1627954&binId=1.810401&playlistPageNum=1˃ (last accessed 8 January 2014).