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Terri Jean Bedford case at the Supreme Court of Canada
June 7, 2013 - 9:46am
A reminder: the Supreme Court of Canada will hear on June 13th the Terri Jean Bedford case.
Here's the Supreme Court's summary:
Quote:
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).
In another thread, I had provided some information on the (numerous) interveners in the case.
Having now glanced at the factums produced by the interveners, I can now provide some more information on the various positions that are being advanced, in the event that is of interest to some of you. (This gives a much better portrait of the positions than the mere enumeration of my earlier post in the other thread.)
Here are the "pro-criminalization" interveners:
- The Quebec Attorney General takes the position that all three provisions are constitutional.
- The Christian Legal Fellowship, the Catholic Civil Rights League and REAL Women of Canada [obligatory shudder] submit a joint factum in which they argue that the bawdy-house and living on the avails provision are constitutional (they do not discuss the communication provision, but they obviously support the Court of Appeal's conclusion that it is constitutional)
- The Evangelical Fellowship of Canada takes the position that all three provisions are constitutional
Here are the "mixed bag" interveners (note: these groups are "mixed" only WRT their approach to the constitutionality of the provisions; these are all groups who adopt an abolitionist perspective):
- The AWCEP Asian Women Society for Equality, operating as Asian Women Coalition Ending Prostitution (Asian Women) takes the position that the living on the avails provision is constitutional and that the bawdy-house provision "cannot constitutionally apply to prostituted persons" but that it is constitutional "insofar as it creates offences committed by persons, such as pimps and buyers, etc., other than prostitued persons"
- The Canadian Association of Sexual Assault Centres, Native Women’s Association of Canada, Canadian Association of Elizabeth Fry Societies, Action Ontarienne contre la Violence Faite aux Femmes, la Concertation des Luttes contre l’Exploitation Sexuelle, Le Regroupement Québécois des Centres d’Aide et de Lutte contre les Agressions à Caractère Sexuel and Vancouver Rape Relief Society, intervening as the Women’s Coalition for the Abolition of Prostitution, submit that s. 210(2)(a) [inmate of a bawdy house] is unconstitutional in its entirety, and s. 210(1) [keeping a bawdy house] and s. 213 [communicating] are unconstitutional only to the extent that they apply to prostituted persons. They further submit that s. 210 [keeping a bawdy house], s. 210(2)(b) [found-in at a bawdy house], s. 210(2)(c) [knowingly permitting a bawdy house], s. 212(1)(j) [living on the avails] and s. 213 [communicating] are constitutional to the extent that they apply to johns, brothel owners, and pimps/profiteers.
Here are the "pro-decriminalization" interveners:
- The Aboriginal Legal Services of Toronto intervener focuses on the communication provision, which they argue is unconstitutional. They also support the Court of Appeal's finding (of unconstitionality) on the two other provisions.
- The Canadian HIV/AIDS Legal Network, the British Columbia Centre for Excellence on HIV/AIDS, the HIV & AIDS Legal Clinic Ontario submit a joint factum arguing that the three provisions are unconstitutional and that the living on the avails provision should be struck down rather than modified by reading in the words "in circumstances of exploitation"
- The Institut Simone de Beauvoir espouses the orders sought by the Respondents. The factum focuses on harm theory and discusses the bawdy-house and communication provisions.
- The British Columbia Civil Liberties Association focuses on the communication provision, which it argues is unconstitutional
- The Downtown Eastside Sex Workers United Against Violence Society, PACE Society and Pivot Legal Society submit a joint factum that espouses the Respondents' positions and focuses on the communication provision, which it argues is unconstitutional
- The Secretariat of the Joint United Nations Programme on HIV/AIDS advances a general argument in favor of decriminalization of sex work
- * The David Asper Centre for Constitutional Rights advances an argument restricted to the sole matter of stare decisis. However, it seems to find no fault with Himel J.'s decision, so I'm putting the intervener in this list
Hope some find this useful.
Thx Barluer that is excellent info.
Yes, thanks Bärlüer as always. But I confess to not understanding exactly where things are at after the Court of Appeal decision.
What I'd love to see (i.e., work for someone else to do, hint hint Bärlüer) is a list or table, in simple terms, saying:
1. Here's the law (before the first challenges).
2. Here's the law after the Court of Appeal's decision.
3. Here's what the appellants are challenging in the Court of Appeal's decision.
If I'm the only one who doesn't know the exact answers to the above, accept my apologies and I'll do my own research!
I won't list all the provisions related to prostitution that exist in the Criminal Code, but the three provisions that were challenged in the case were:
Unionist didn't ask this, but just to be clear: Himel J. struck down all three provisions as being unconstitutional.
The Court of Appeal stated that:
Wow... thanks again! Got it, I think. Isn't it time we discussed your fee schedule? Pro bono doesn't pay the bills...
One more quick question (I'm sure I should know the answer, but I don't):
Other than the circumstances described in the contested sections (indoors, frequent, habitual, etc.), am I right in concluding that there is no legal prohibition as such on either the sale or purchase of sexual... er... favours?
ETA: Here's a really specific question which occurred to me in trying to follow the abolition vs. decrim vs. legalization debates:
Company X advertises for secretarial staff. In the job interviews (but not in the ads), all applicants (irrespective of gender) are told explicitly that the provision of sexual services as instructed by a manager is a job requirement.
Legal or not?
Yep.
This is not behavior that is captured by the Criminal Code.
Whether it is otherwise "legal" is another question. I see that you removed the aspect of gender to evacuate any possible question of discrimination on the basis of sex... Maybe it would be found not to comport with s. 46 of the Quebec Charter, which provides that "Every person who works has a right, in accordance with the law, to fair and reasonable conditions of employment which have proper regard for his health, safety and physical well-being."
Another question (don't know which thread to ask in, so might as well be here):
Are there any "abolitionist" organizations, whether before the court or elsewhere, which advocate full decriminalization?
I put "abolitionist" in quotes because I'm not sure the full scope of what that term captures. I'm using it to mean: Organizations which want to see prostitution gone from society - but in the context of my question, not via criminalization of anyone involved.
hmmmm...many of the decrim org's would like to see poverty and other things that drive people to choose sex work eliminated from society....its not really what you meant.....i actually don't think there is any org's like you have described....
Thank you, Susan. I suspected as much, but the confirmation is important.
The Supreme Court will render its decision in the Bedford case on Friday, December 20.
crossing our fingers in vancouver....
crossing our fingers in Ontario too, and right across the country. scrap these 3 rotten laws now!
Victory! Unanimous decision, with the Supreme Court going even further than the Ontario Court of Appeal, striking down all three of the challenged provisions, rather than just two. Parliament has been given one year to come up with new legislation, if it so chooses. It will be interesting to see how the government handles this.
Congrats to all those who've been fighting and waiting for this day to arrive!
Libby Davies: Statement on Supreme Court Ruling on Prostitution Laws
Here's some nonsense from the Department of Justice.
Note, the bolding above is mine. The law was successfully challenged because:
These laws were struck down because they were deemed to be causing harm, and were not deemed to be "address[ing] the significant harms that flow from prostitution." Anyway, I was glad to read Libby Davies statement that onlinediscountanvils posted.
rabble.ca storify on initial twitter reaction
we are totally exstatic!! we were all together at pivot for the decision this morning...we cried and drank champagne...we hugged each other and mourned those who did not survive to see this day.
finally we can prove that the idealogical arguements have no basis in reality and that in fact what have been saying all along is true.
i am so greatful to live in a country where justice will always prevail...eventually....i testified in 2006...its been a long long road.
going back to celebrations now!!
Maggie's (Toronto Sex Workers Action Project): What Does The Supreme Court Decision Mean For Sex Workers and People in the Sex Trade?
so.......they want more rights than the rest of the work force across canada???????
No, they want more rights for the rest of the work force across Canada.
Congratulations!
Great decision! Congratulations to everyone who worked so hard on this!
Now, is this the right thread to start discussing what Harper is liable to do next?
Here goes:
What if he criminalizes sex work - outright? I need the lawyers at this point:
1) Would that undermine and eliminate the Charter Section 7 basis of the SCC's decision (seems to me it would)?
2) Would such a total ban survive a separate Charter challenge under some other section - freedom of expression? I just can't see how Section 7 would apply to a total ban.
Finally, the pundits please:
From Harper's viewpoint - would this be a vote-getter or vote-loser?
Sorry to be a grouch, but I'm trying to be realistic. Expecting or hoping Harper will introduce any form of decrim or legalization seems like fantasy-land to me. Tell me I'm wrong.
Or he could do nothing and just endlessing 'examine' it through committees
Coyne gives some thoughts on it. He talks about how he feels the struck down laws were too broad, and says that the so-called Nordic option likewise is too broad. Not sure about his suggestion of licensing, though. I was reading New Zealand's Prostitution Reform Act, which seems interesting.
Maybe, but he only has a year before the three laws are gone.
This will definitely be a poll-winner for Harper. Whether it's a vote-winner, I can't yet say. Much like the people who have been commenting on Rob Ford who don't want to acknowledge that middle-class professional whites use crack, I imagine a whole lot of people will publicly proclaim their opposition to prostitution and then go pay a visit to Jenny tonight.
I saw a few comments in other threads about how the "Nordic model" tackled "demand for prostitution" by arresting johns. Yes, exactly like the war on drugs has targeted demand for drugs by arresting drug users. We can all see how well that's worked, can't we? In fact, I don't see why anyone is worried about people who do sex work to support a drug habit. Buying drugs is illegal. This has completely eliminated the market.
I think potentially Harper could pull a notwithstanding (The Charter, s. 33) out of his hat and spend the rest of his term vilifying both prostitutes and the Supreme Court. I don't think he'd do that, because I don't think the public would be on his side, and he realizes it wouldn't be a winning move. But, Harper has surprised me before. They may simply choose not to replace the three laws with anything, though that seems the least likely. Admittedly, I can't even guess how the Cons will handle this.
I still want to know: Could he ban sex for money without offending the Charter at all? Or, could the provinces?
It's definitely a contentious issue. I really hope the political process can lead to an outcome other than outright criminalization of sex work (or the so-called "Nordic" model, which shares the same telos, that is, prohibition).
But if we come to that, what happens legally speaking?
I personally think that the s. 7 reasoning adopted by the Court would still apply to outright criminalization:
- Security of the person would still be engaged: the heightened risks faced by sex workers because of criminal prohibitions would still be there, in an aggravated manner, even.
- The question of legal causation (this is still at the level of determining whether s. 7 is engaged) is unchanged.
- The deprivation of security would still be in violation of principles of fundamental justice: if anything, the prohibition would be more overbroad/grossly disproportionate.
- The government would probably have more arguments to present on s. 1, because the legislative objective of the outright prohibition would be different, etc. But I personally think it wouldn't pass the minimal impairment branch of the s. 1 test. (And courts are loathe to justify a law that violates s. 7 [I don't think it has ever happened at the level of the Supreme Court], although the Court in Bedford does recognize that it could happen.)
I also note that the sex workers' argument would still not amount to an assertion of a so-called "positive right to vocational safety", as the Court rejected in Bedford. They wouldn't be seeking specific measures from the State to ensure safety — the case would still be that the legislative prohibition aggravates risk.
So, in short, the outright prohibition would still have the same harmful effects that the three provisions in Bedford were found to have — and it is the effects of the law that the Court is concerned with. It's true that the Court in Bedford emphasizes a number of times that prostitution itself is legal (it also says that Parliament is not "precluded from imposing limits on where and how prostitution may be conducted"...), but I don't think this means that its s. 7 reasoning actually rests on that being the case. As I've just said, I think the basic argument re: s. 7 remains the same.
But courts might very well not take the same view as me...
Justice Himel had concluded that the communication provision violated freedom of expression, in spite of the precedent of the 1990 Prostitution Reference. The Supreme Court did not examine the argument because of its conclusion on s. 7.
Would a freedom of expression argument have interesting chances if examined anew by courts, in relation to an outright prohibition...? I don't know... I have doubts. I think the s. 7 case is significantly stronger.
Thanks Bärlüer, that's very interesting.
That's interesting. Initially I was focusing on freedom of expression, rather than s. 7, but I do see your point concerning harmful effect of a law.
Yeah, initially I had been focused on freedom of expression when contemplating it -- IE, the question of whether a law proscribing prostitution (or, as advocated by some, proscribing the purchase of services of prostitutes) limits people's constitutionally-protected freedom of expression and, if so, whether that limit is justifiable. But I see your point in the focus on s. 7 being a better way to fight a move toward prohibition by the gov't.
Thanks for the analysis and opinion, Bärlüer. I'm still concerned about Section 7, and here's why in more detail.
In paras 79-92 of their decision, the justices reject the argument that the harm to sex workers comes not from the law, but from the person's choice to engage in a risky activity. They essentially say that: 1. Some people (including Bedford, based on her testimony) have no meaningful "choice" other than to engage in sex work. 2. Anyway, it's a legal activity.
Surely what the court says here (at least my point #1) could apply to a host of unlawful activities under many circumstances - like trafficking in illicit drugs, or petty crime, or major crime, etc. Would the court really apply Section 7 to strike down laws that made criminal activities more risky, on the basis that many people are driven to crime by "financial desperation, drug addictions, mental illness, or compulsion from pimps" (maybe substitute "pimps" by "gangs", etc.)?
It seems to me that an important basis of the reasoning in that section is that selling sex for money is lawful. If it were banned (like selling cannabis, or stolen goods, or a myriad of other examples) - how could Section 7 be invoked? Especially for people that choose freely to engage in sex work? And for those "forced" into crime, surely they'd have to plead that on an individual basis if charged, just as would now be the case for other types of illegal activity.
Am I making sense?