In a decision released on December 20, 2013, the Supreme Court of Canada has declared that three provisions of the Criminal Code (“Code”) criminalizing various activities of sex workers are unconstitutional: Canada (Attorney General) v. Bedford, 2013 SCC 72.
The constitutional challenged was launched by Terri Jean Bedford, Amy Lebovitch, and Valerie Scott, current and/or former sex workers and activists who argued that the Code prohibitions on operating a bawdy-house, communicating for the purpose of engaging in prostitution, and living off the avails of another’s prostitution violated section 7 Canadian Charter of Rights and Freedoms. Section 7 of the Charter provides that “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.”
Prostitution itself is not illegal in Canada, however the Code contains provisions that restrict the manner in which sex workers can communicate and operate their trade. Bedford argued that the three Code provisions infringed her Charter rights to security of the person, because the impugned laws prevented her and other sex workers from implementing certain safety measures, such as hiring security guards or drivers, “screening” potential clients, and other measures that that could protect them from violent clients.
The Supreme Court accepted that sex workers, especially street sex workers, are, with some exceptions, a particularly marginalized population. The Court found that the current Code provisions were unconstitutional and overbroad, as they deprived sex workers of the opportunity to implement measures to make themselves safe, creating increased risk of violence, injury and imprisonment. The Supreme Court observed that the impugned Code provisions prohibited street prostitutes, who are largely the most vulnerable sex workers and who face an alarming amount of violence, from screening clients, thereby putting them at an increased risk of violence.
The Supreme Court held that the three Code provisions infringe section 7 of the Charter and were not saved under section 1 of the Charter. The Supreme Court has suspended its declaration of invalidity for one year. This means that the constitutionally invalid Code provisions will remain in force for one year, which will give Parliament that time to enact a new legislative scheme respecting prostitution, should it choose to do so.