Today in Ottawa, the Supreme Court of Canada (SCC), in a decision known as Bedford, unanimously agreed that three Criminal Code provisions related to sex work are unconstitutional. As expected, this decision released of flurry of responses (including quite the twitter storm)!
As always occurs in such cases, someone invariably asks: how can the SCC do this? Those judges are not elected. What about the supremacy of Parliament? Shouldn’t Parliament decide this issue?
In order to answer the question of whether the Court had a right to do what it did, let’s have a look at just what the Court actually did, and did not, do.
First of all, this was not a decision about whether or not “prostitution” (or, as we shall call it, “sex work) should be allowed, criminalized, or decriminalized. That is not what the judges decided upon, and not what they were tasked with. No one was commenting of the issue of the morality of sex work itself. You see, in Canada, sex work, in and of itself, is already not illegal. The Criminal Code does not make sex work illegal. It just makes some of the stuff around it illegal. In other words, sex work is already legal.
So what was in front of the Court? The “surrounding” issues that Parliament had made illegal. Specifically, the Court was examining:
- s. 210 (keeping or being found in a bawdy house) of the Criminal Code. This made it illegal to have a brothel. So sex work is ok, just not in a specific place or residence. What this did, was make sex workers and those who might profit from their work, take the matter to the streets and into, say, vehicles;
- s. 212(1)(j) (living on the avails of prostitution) of the Criminal Code. This refers to people who profit from the existence of sex work. For example, pimps; and
- s. 213(1)(c) (communicating in public for the purpose of prostitution) of the Criminal Code. This is the part where the parties could discuss what exactly would be done and for how much. This that was illegal, it had to happen in secret (as in public would lead to trouble).
The issue? That all 3 of these Criminal Code provisions violate the s. 7 right to security of the person protected by the Canadian Charter of Rights and Freedoms (the Charter).
What does that mean? Well, the Canadian Charter of Rights and Freedoms is document, properly passed by a properly elected Parliament, which guarantees certain rights and freedoms for citizens. In other words, at a specific point in our past, our federal government decided that it would be a good thing to have a document that protected citizens from potential inappropriate actions by their own government. This is quite a normal thing in most democracies: it is a recognition that there are bad apples in every barrel and that sometimes governments abuse their powers. This is not much of a surprise, considering humanity’s rife history of “absolute power corrupting absolutely”. The Charter is also part of a larger document called the Constitution. Constitutions describe how a country governs itself. It contains rules or principles which tell the government what it can or cannot do. If the government makes a law that contradicts the Constitution, a court can tell the government that the law is ‘unconstitutional’ and therefore that it has no effect. So, again, at a point in our past, our federal government decided that it would be a good thing to have a document that set out the rules for governance. And, in so doing our Parliament left the job of enforcing the Constitution (including the Charter) to our courts. This, too, is quite common in democracies.
Now that we know all that, we can look at exactly what section 7 of the Charter says:
“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.”
So, bearing in mind that the Charter protects citizens from the government, this means that all citizens have the right to be subject to laws created, and actions carried out, by the government, that do not jeopardize citizens’ right to life, liberty, and security. In other words, if a law or action of the government does jeopardize citizens’ rights to life, liberty, and security, it is not good law and should be abolished. And, as per our Constitution, that decision is to be made by courts.
In this case, it was argued that sections 210, 212(1)(j) , and 213(1)(c) of the Criminal Code did jeopardize citizens’ rights to life, liberty, and security. Example arguments about how this provisions did that included that
- the bawdy house law prevents sex workers from working in one safe place, and instead, forces them onto the street or other risky locations;
- the law preventing living on the avails does not distinguish the various kinds of “living off the avails” and, as a result prevents sex workers from hiring body guards, drivers, even receptionists, who could increase their safety;
- the law prohibiting communication increases the risk faced by sex workers, by forcing them into more isolated areas, preventing them from taking the time to screen clients and setting terms such as condom use
The Court found that the three sections in questions did in fact violate section 7 of the Charter. Specifically, the court noted (amongst other things):
- “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 risk.”
- “The law punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes (such as controlling and abusive pimps) and those who could increase the safety and security of prostitutes (for example, legitimate drivers, managers, or bodyguards).”
- “By prohibiting communication 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 risk they face.”
- “The harms identified by the courts below are grossly disproportionate to the deterrence of community disruption that is the object of the law. Parliament has the power to regulate against nuisances, but not at the cost of the health safety and lives of prostitutes.”
So, back to the question of what the Court was doing? It’s job. The job given to it by our government. Parliament had not made sex work illegal, it had merely put some restrictions on it (making some of the things around sex work illegal). The Court examined these restrictions in light of section 7 of the Charter and decided that these restrictions were unconstitutional:
“The prohibitions all heighten the risks. . . . They 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.”
The Court did not get into suggestions of alternatives, but instead, gave the job to Parliament , who now has one year to fix the problems. What happens next remains to be seen.
For more information on the role of the Constitution and the Charter, see here.
For more commentary on the Bedford decision, see here.