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LexView 71.0 - Safety When Flouting the Law: Can Parliament Still Criminalize Practices of Prostitutes?

From the Archived "LexView" Series

In her decision in late September, Justice Susan Himel of the Ontario Superior Court struck down provisions of the federal law making it illegal to communicate for the purposes of prostitution, live off the avails of prostitution or keep a bawdy house. While libertarians might argue that commercial sex should be strictly a matter of contract between willing buyer and seller, that is a political argument to be made in Parliament, not before the courts. Justice Himel should have deferred to Parliament's prerogative to pass laws reflecting society's deep antipathy to dehumanizing acts associated with the rental of bodies for sexual gratification.

Bedford v. Canada
2010 ONSC 4264
Ontario Superior Court of Justice

Date of Decisions: September 28, 2010
Date of Issue: November 16, 2010

In this issue:

  1. Key Terms
  2. Summary of Facts
  3. Significant Issues
  4. Decision and the Court's Reasons
  5. LexView Commentary
    1. Repeated Constitutional Challenges
    2. Weighing Harm in the Social Sciences
    3. What then of Individual Liberty?

Key Terms:

Prostitution; avails of prostitution; common bawdy house; solicitation; liberty; security of the person; principles of fundamental justice; section 7; ambiguity; overbroad; freedom of expression; section 2(b); harm; safety; Criminal Code; Charter of Rights and Freedoms

Summary of Facts:

Terri Jean Bedford, Amy Lebovitch, Valerie Scott have all worked as prostitutes and wish to either resume working as prostitutes or otherwise engage in the business of prostitution. Together, they applied to the Ontario Supreme Court of Justice to challenge the constitutionality of three provisions in the Criminal Code:

(a) Section 210 makes it an offence to keep a "common bawdy house", which is defined as a place that is kept or occupied or resorted to by one or more persons for the purpose of prostitution (the "Bawdy House Provision");

(b) Paragraph 212(1)(j) makes it an offence to live, in whole or in part, on the avails of prostitution of another person (the "Avails Provision"); and

(c) Paragraph 213(1)(c) makes it an offence to stop or attempt to stop any person or in any manner communicate with any person for the purpose of engaging in prostitution (the "Communicating Provision").

The Applicants challenged all three provisions, arguing that they contravene section 7 of the Charter of Rights and Freedoms, which guarantees "life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice". Their arguments were based, in part, on the fact that they could be imprisoned for breaching these Criminal Code provisions.

They also challenged the Communicating Provision under the freedom of expression guarantee in s.2(b) of the Charter.

With respect to the Bawdy House Provision, the Applicants argued that violence against prostitutes is significantly reduced in settings such as brothels where the presence of others will discourage attacks. They argued that the Avails Provision makes it illegal to hire managers, drivers and security personnel, and thereby increases the risk of physical harm associated with engaging in prostitution.

With respect to the Communicating Provision, they argued that allowing communication for the purpose of prostitution would also enhance safety by allowing prostitutes to properly screen Johns.

Significant Issues:

  1. What constitutional principles govern Parliament's ability to criminalize conduct that it judges to be contrary to society's proper functioning? Where is the limit to be placed on the Court's role in testing laws whose ameliorative effects are inherently uncertain and based on community values?

    This case tests the limitations of relying on anecdotal and social science evidence in constitutionally challenging laws. At some point, and despite the libertarian impulses of both the Charter and those who advocate for unpopular social practices, Parliament is entitled to some deference in defining what conduct is appropriate in Canada.

  2. Was the court's demand for proof of harm in this case appropriate given the nature of the harms of prostitution addressed by the impugned legislation?

    All laws passed by Parliament and the provincial legislatures are subject to scrutiny under the Charter. However, when it comes to issues such as prostitution, it may simply be impossible to weigh the evidence of "harm" in a sufficiently precise and neutral way. In other words, the Courts will be drawn into some discussion around social policy.

  3. Since two of the impugned provisions were already subject to, and passed, constitutional scrutiny, there is also a significant issue around when it is appropriate to have repeated Charter challenges.

Decision and the Court's Reasons:

At the outset, and throughout the 131 page decision, the Court noted that prostitution has never been illegal in Canada. Parliament has chosen to combat prostitution indirectly, by making most acts associated with prostitution criminal offences. For example, it is difficult to understand how one can engage in prostitution without breaching the Communicating Provision.

Justice Himel concluded that all three provisions are not in accord with the principles of fundamental justice and must be struck down because they "force prostitutes to choose between their liberty . . . and their security of the person".

The Court also found that the Communicating Provision breached s.2(b) of the Charter and could not be saved under s.1 as an "unjustifiable limit on the right to freedom of expression".

With respect to the Bawdy House Provision, Justice Himel found that the provision was primarily directed at health, safety and neighbourhood disruption and disorder concerns (although it did originally have a morality objective, which the Court found was no longer a proper legislative purpose). But the Court held that the provision was overbroad, and therefore contrary to principles of fundamental justice, since none of the harms sought to be prevented by the law need to be shown in order to make out the offence.

The Court held that the legislative aim of the Avails Provision was to prevent the exploitation of prostitutes by profiteering pimps and was designed to criminalize a parasitic relationship. The Court held that the provision is arbitrary, since it may increase the vulnerability of the persons it seeks to protect, and therefore contrary to principles of fundamental justice. It also found the provision to be overbroad.

The Communicating Provision was found to have, as its purpose, controlling the social nuisance associated with street prostitution. The Court found that its harmful effects on prostitutes were grossly disproportionate to the goal of combating social nuisance, and therefore contrary to the principles of fundamental justice.

With respect to the freedom of expression arguments, Justice Himel relied on the 1990 finding of the Supreme Court of Canada in the Prostitution Reference to hold that the Communicating Provision breached s.2(b) of the Charter. Noting that the Supreme Court of Canada had placed communicating for the purposes of prostitution "at the periphery of constitutionally protected expression", she did not consider herself bound to the Supreme Court of Canada's section 1 analysis. She found "changed circumstances", since there is now more evidence available than in 1990 and the "social, political and economic assumptions underlying" the Prostitution Reference "are no longer valid today".

In the result, Justice Himel held that the Communicating Provision can no longer be viewed as minimally impairing freedom of expression as it is not sufficiently tailored to its objective. She found the purpose of guarding personal security made the illegal discussion much more important than simple economic communication.

The Court struck down all three provisions because "the danger faced by prostitutes outweighs any harm which may be faced by other members of the public." The Court was persuaded that, on a balance of probabilities, the risk of harm to prostitutes could be reduced, were it not for these provisions. In light of this, Justice Himel stayed the decision for only 30 days to allow the government to study, consult and make submissions how best to address regulatory issues around the establishment of brothels.

Overall, Justice Himel was persuaded on the evidence that prostitutes engage in a high-risk activity and that such risk could be reduced by, inter alia:

  1. working indoors (which is limited by the Bawdy House Provision);
  2. working in close proximity to others, including paid security staff (which is limited by the Avails Provision);
  3. using drivers, receptionists and bodyguards (which is also limited by the Avails Provision);
  4. taking time to screen potential Johns (which is limited by the Communicating Provision); and
  5. using indoor safeguards like closed-circuit monitoring (which is limited by the Bawdy House Provision).

In conducting her analysis, Justice Himel relied on the section 1 analysis of Justice Sopinka in R v. Butler in which he observed that moral disapprobation may be a legitimate state objective, but only when it is rooted in Charter values. Ultimately she held that the avoidance of harm justifies parliamentary action.

LexView Commentary:

This case is significant, and not just because, if the ruling is sustained, it promises to make prostitution more widely available. The reasoning would also make it more difficult for Parliament to criminalize and regulate other activities that cause social harm, such as pornography and illegal drug use.(Specifically with respect to the impugned provisions curtailing practices associated with prostitution, on October 12, 2010, a similar case was given the green light to proceed in British Columbia.

For example, Justice Himel referenced the words of Madam Justice Rowles of the B.C. Court of Appeal in PHS Community Services Society v. Canada (Attorney General), concerning Vancouver's "safe" injection site, to the effect that the Courts are charged with determining the constitutionality of even controversial criminal code and other statutory provisions. As noted by Chief Justice McLachlin in Chaoulli v. Quebec (Attorney General) at para. 107, the fact that a matter is complex, contentious or laden with social values does not mean that courts can abdicate their responsibility to test provisions against our constitution.

Given the court's role in reviewing such laws, constitutional testing should be constrained to reviewing whether Parliament has truly exceeded its constitutional limitations and engaged in an illegal exercise of its powers. For reasons articulated below, in complex social matters involving community values, deference to Parliament's social objectives is essential. In our system, the legislative branch is better able to react to the needs of Canadians and weigh the benefits and harms of current social practices and their impact on society.

A Note on the Prostitution Reference and Repeated Constitutional Challenges

As referenced above, the Supreme Court of Canada held in 1990 that the Bawdy House Provision and the Communicating Provision were consistent with s.7 and s.2(b) of the Charter. Justice Himel concluded that she was not bound by this precedent because "there is an implicit need for courts to reconsider constitutional interpretation . . . due to the difficult process of constitutional amendment" and "given the breadth of evidence that has been gathered over the course of the intervening twenty years". She specifically referenced other western democracies, such as the Netherlands and Nevada, which have taken a more liberal view of prostitution.

This reasoning is inconsistent with the doctrine of precedent and ignores the hierarchy of the superior courts. It allows for individual judges to ignore the decisions of the Supreme Court of Canada and would permit repeated challenges to and re-argument on the constitutionality of any law based on new social science research or activities in other jurisdictions. This is a challenge to the rule of law and undermines constitutional dialogue between Parliament and the courts, particularly in relation to controversial social practices.

The legislative objectives and benefits of the Bawdy House Provision and the Communicating Provision were first weighed by Parliament and then by the Supreme Court of Canada in the Prostitution Reference. They were held at that time to be constitutional. Those legislative objectives and the societal benefits of the provisions remain today.

Permitting repeated constitutional challenges allows those unhappy with legitimate regulation to continue amassing supportive social evidence over long periods of time. They can then launch attacks when they believe that the social climate is right, despite how temporary that favorable climate may be. Once found unconstitutional, it may be impossible or impractical for Parliament to reenter the regulatory field to constrain behaviour. One thinks of abortion laws in Canada as an example of provisions that, once specific provisions were found unconstitutional, were never again successfully addressed by Parliament.

In a society governed by the rule of law and a clear hierarchy of courts, Parliament must have more certainty. In the Prostitution Reference, Parliament took the unusual step of asking the Supreme Court of Canada to determine the constitutionality of the provisions and only the Supreme Court of Canada may reverse that decision, and only with good reason. There should be a much greater reason than changed "social, political or economic assumptions" as majoritarian perspectives can be expected to wax and wane over time.

Where, as here, the legislation in question is a matter of a good faith attempt to address a complex social harm, any reviewing court must approach the question of the efficacy of the legislation with an attitude of deference; deference because the legislative branch is in a much better position to create solutions for complex social problems than courts who see only the parties before them.

Constitutional protections must be more solid and are not so tenuous as to be swayed by the fickleness of public opinion. Otherwise, legislative constraints on socially controversial behaviour and practices may never be sustained in the long run, since challengers can lay in the weeds, waiting for public opinion to swing in their favour and then launch a fresh attack.

Weighing Harm in the Social Sciences

While prostitution in Canada is not a criminal offence, the provisions impugned in this case are clearly intended to severely restrict its practice.

In the Prostitution Reference, the Supreme Court of Canada rejected arguments that the Bawdy House Provision and Communicating Provision were impermissible because Parliament was sending out conflicting messages. Chief Justice Dickson, writing for the majority, stated:

"The fact that the sale of sex for money is not a criminal act under Canadian law does not mean that Parliament must refrain from using the criminal law to express society's disapprobation of street solicitation."

There has not yet been a direct challenge to the constitutional competence of Parliament to criminalize prostitution and the Supreme Court of Canada has already recognized Parliament's ability to "express society's disapprobation" of prostitution. (See also R. v. Butler, supra. at p.492 where Justice Sopinka held that Parliament does have the right to legislate on the basis of some fundamental conception of morality for the purpose of safeguarding values that are integral in a free and democratic society.) It has clearly done so through the Criminal Code provisions in issue in this case.

That does not mean that these provisions may not have some detrimental impact on the ability of prostitutes to conduct their business. These provisions are designed to limit prostitution and therefore can be expected to interfere with the business of prostitution, even to the point of making it practically impossible.

The Court in this case defined the legislative objectives too narrowly, such as limiting nuisances in the street with respect to the Communicating Provision. Doing so makes it much easier to undermine the provisions based on the countervailing "harm" to prostitutes who engage in a "legal" business.

While the courts have held that preventing "dirt for dirt's sake" is not a legitimate objective that would justify violating the Charter, the wider social objective of limiting or eliminating prostitution is legitimate, as found in the Prostitution Reference. The harm caused by prostitution is considered by many Canadians (and by Parliament) to go beyond minor issues of nuisance, and is much greater than simply the legislation of morality or prevention of "dirt".

None of us lives in splendid isolation and the practice of prostitution has wider impacts than the narrow harm identified by the Court. The moral disapprobation of prostitution is connected with our society's deep beliefs pertaining to dehumanizing acts associated with the rental of bodies for sexual gratification. These laws are intrinsically connected with how Canadian society views and values human dignity.

The Court focused on the barriers to safely practicing prostitution created by the three provisions, weighed against only narrowly defined legislative benefits. It did not weigh such "harm" against the broader legislative aims and societal benefits of limiting prostitution.

A significant resulting problem is that the government's objectives and the harm it seeks to avoid are measured by different standards than the "harm" caused to prostitutes. In demanding substantial social science "proof" from the government of the harm avoided, the Court required Parliament to prove the negative. It is precluded from relying on its legitimate broad objective based on human dignity and is instead required to prove the benefits of the provisions in narrow and mundane "avoidance of nuisance" terms. (Although even on this basis, there are certainly benefits to these provisions. See for example the charges laid on October 13, 2010 against a human trafficker in British Columbia under the Avails Provision and the Bawdy House Provision.)

How can Parliament prove that its laws preserve human dignity by discouraging prostitution? Parliament will need to make arguments from a social values perspective and looking at negative impacts of prostitution more generally. Before dismissing the government's expert evidence of social harms of prostitution, the Court ought to have born in mind the Supreme Court of Canada's admonition that context, deference and a flexible and realistic standard of proof are essential aspects of the s. 1 analysis.

There are limits on social science evidence. It is very doubtful that social science testing can legitimately determine whether prostitution practices cause more harm than good to a society. When it comes to issues like these, Parliament needs some leeway to determine what should be a legitimate mode of living. It may need to constitutionally justify the narrow outcomes encountered by those who choose to flout the law, but it cannot do so without reference to the wider social structures under which Canadians choose to live.

This balancing of "harms" undertaken by the Court, ignoring the greater social justification associated with the three impugned provision, leads to an unequal focus on the individual harm argued by the advocates of prostitution. This approach will always tend to undermine the law since the greater harm avoided by society cannot be proven on the social science evidence utilized by the challengers. Such an exercise looks only at whether prostitution could be more safely undertaken balanced against the discrete nuisance avoided. A true balancing would take into account the limitation or elimination of prostitution more generally as that is what Parliament wished to do.

The issues involved in this case go far beyond what regulations on an economic transaction are justifiable from a "safety" perspective. The Court ought to have been more deferential to Parliament's legitimate disapprobation of prostitution. Had it done so, the conclusion may not have been to make easier the conduct that Parliament sought to limit or eliminate. The conclusion would have more directly recognized that Parliament can legitimately limit practices associated with prostitution in order to discourage what it views to be a social ill.

This is why legislating based on ideas on the formation of a society and the principles underlying a good society must remain in the hands of Parliament and not be subjected to pseudo-scientific testing on a balancing of discrete harms. Ideas concerning the value of humans and limits on how they treat their bodies remain relevant and important to the dialogue, but that dialogue is a democratic one effectively undertaken in legislatures, which are designed to formulate perspectives on controversial social practices.

What then of Individual Liberty?

There is no question that from a libertarian perspective, there are arguments to be made in favour of permitting prostitution. The libertarian impulse creates an antipathy towards any "morality" laws, including those dealing with illicit drugs, pornography and prostitution. Prostitution is one of the so-called "victimless" crimes (although it is clear that there are many victims associated with prostitution, including those under the control of human traffickers).

Perhaps most Canadians wish to become like Amsterdam with its window prostitutes and Nevada with its legal brothels. If so, it should be for Canadians to convince parliamentarians that our society should be that permissive.

This issue should not be finally determined under a constitutional challenge where the true rationale for making prostitution practices criminal is given inadequate weight. Doing so gives insufficient protection to the society most Canadians wish to see and makes socially controversial practices a matter of economic, as opposed to social, regulation.

Any one or more of the Bawdy House Provision, Avails Provision and Communicating Provision may be bad policy in the eyes of many Canadians. This is a discussion worth having at a parliamentary level (assuming that a large enough percentage of Canadian are not happy with the Criminal Code provisions as they existed before this challenge). It should not be determined based on balancing the narrowly defined "harms" that can be articulated by social science practitioners without reference to the greater social and human dignity issues involved.


This issue of LexView was researched and written by:
Kevin L. Boonstra, B.A. (Hons.), LL.B., of the British Columbia Bar.

LexView is a project brought to you by the Cardus Centre for Cultural Renewal, a not-for-profit agency. LexView is made possible through the donations of foundations, corporations and individuals. To inquire about making your contribution, please contact Cardus.

Copyright © 2010 Kevin L. Boonstra

LexView is an on-going review of judgments of Canadian courts that have an impact on the complex interrelationships between law, public policy, culture, moral reasoning and religious belief.

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