Canada (AG) v. Bedford [2013] — Prostitution Law
Introduction
Canada (Attorney General) v. Bedford, [2013] 3 SCR 1101, is a landmark constitutional decision in which the Supreme Court of Canada struck down three Criminal Code provisions regulating prostitution. The case is significant for its articulation of the principles of arbitrariness, overbreadth, and gross disproportionality under section 7 of the Canadian Charter of Rights and Freedoms, and for its willingness to overturn a relatively recent precedent.
Facts
Terri Jean Bedford, Amy Lebovitch, and Valerie Scott — three current or former sex workers — challenged the constitutionality of three Criminal Code provisions:
- Section 210: Keeping or being in a common bawdy-house (prohibiting indoor prostitution)
- Section 212(1)(j): Living on the avails of prostitution (prohibiting third-party involvement)
- Section 213(1)(c): Communicating in public for the purpose of prostitution (prohibiting street solicitation)
The applicants argued that these provisions prevented sex workers from taking basic safety measures, such as:
- Working indoors where they could control access and screen clients (bawdy-house provision)
- Hiring security guards, drivers, or receptionists to protect them (living on the avails provision)
- Screening clients in a safe environment (communication provision)
The application was dismissed at trial in Ontario, but the Ontario Court of Appeal allowed the appeal in part. The Crown appealed, and the applicants cross-appealed to the Supreme Court of Canada.
The Supreme Court’s Decision
Chief Justice McLachlin, writing for a unanimous Court, struck down all three provisions. The decision is notable for overruling the Court’s earlier decision in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Prostitution Reference), [1990] 1 SCR 1123, which had upheld similar provisions.
Section 7 — Principles of Fundamental Justice
The Court unanimously held that the three provisions violated the security of the person rights of sex workers by preventing them from taking steps to reduce the serious risks inherent in prostitution, including violence, disease, and exploitation.
The Court identified three distinct principles of fundamental justice:
Arbitrariness: A law is arbitrary if it bears no connection to its purpose. The bawdy-house provision (s. 210) was arbitrary because its purpose was to prevent public nuisance and exploitation, but it had the effect of forcing sex workers to work on the streets — the most dangerous environment.
Overbreadth: A law is overbroad if it catches conduct that bears no connection to its purpose. The living-on-the-avails provision (s. 212(1)(j)) was overbroad because it captured not only pimps and exploiters but also legitimate third parties — security guards, drivers, receptionists — who could protect sex workers. The law’s purpose was to prevent exploitation, but it swept in conduct that could enhance safety.
Gross disproportionality: A law is grossly disproportionate if its effects are so severe as to be completely out of sync with its objective. The communication provision (s. 213(1)(c)) was grossly disproportionate because its purpose was to prevent public nuisance, but its effect was to force sex workers into isolated, dangerous locations where they could not screen clients, dramatically increasing the risk of violence.
Overruling the Prostitution Reference
The Court explicitly overruled the Prostitution Reference (1990), which had upheld essentially the same provisions. Chief Justice McLachlin identified several circumstances justifying overruling:
- Changed social context: Greater awareness of violence against sex workers and the ineffectiveness of criminalization
- New evidence: Extensive evidence of the harms caused by the provisions
- Legal developments: The articulation of the principles of arbitrariness, overbreadth, and gross disproportionality as distinct concepts under section 7
- Different framework: The Prostitution Reference had been analyzed under section 1 rather than the more protective section 7 framework
The Court held that the doctrine of stare decisis does not prevent overruling where the earlier decision has proven unworkable or has led to demonstrably unjust results.
Section 1
The Court unanimously held that the violations could not be saved under section 1. The provisions caused harm to sex workers without corresponding benefits that could justify the rights violations. The government’s objective of preventing exploitation could not justify laws that had the effect of increasing danger for the very people they were supposed to protect.
Suspended Declaration of Invalidity
The Court suspended the declaration of invalidity for one year to give Parliament time to respond. The Court emphasized that Parliament was free to design a new legislative response — including continuing to criminalize prostitution — provided the new laws complied with the Charter.
Aftermath
Parliamentary Response: Bill C-36
Parliament responded with the Protection of Communities and Exploited Persons Act (PCEPA), which received Royal Assent in November 2014 (six months after the Bedford deadline was extended by four months). The PCEPA adopted a Nordic model approach:
- Decriminalized the sale of sex for sex workers
- Criminalized the purchase of sexual services (johns)
- Criminalized advertising of sexual services
- Retained criminal prohibitions on third-party involvement with new exceptions
- Retained prohibitions on procurement and material benefit with broader exceptions for legitimate assistance
Constitutional Challenges to PCEPA
The PCEPA was challenged in Canada (Attorney General) v. 2245703 Ontario Inc., 2024 SCC 41, where the Supreme Court upheld key provisions of the PCEPA. The Court held that the prohibition on purchasing sexual services and the prohibition on receiving material benefit were constitutional, applying the Bedford framework while recognizing that Parliament’s objective had shifted from regulating prostitution to abolishing prostitution markets and protecting vulnerable persons.
Significance
Bedford is significant for several reasons:
Articulation of s. 7 principles: The case provided clear definitions of arbitrariness, overbreadth, and gross disproportionality as distinct principles of fundamental justice.
Overruling precedent: The Court demonstrated its willingness to overrule precedent where circumstances and legal understanding have evolved.
Evidence-based constitutional review: The Court relied heavily on social science evidence about the effects of prostitution laws, establishing the importance of legislative facts in Charter litigation.
Vulnerable populations: The case recognized that constitutional rights apply to marginalized and criminalized populations and that the state cannot, through criminal law, increase the danger faced by those it regulates.
Parliamentary dialogue: The Court’s suspended declaration and Parliament’s subsequent enactment of the Nordic model illustrate the dialogue theory of Charter interaction.
Conclusion
Canada (AG) v. Bedford is a watershed decision in Canadian constitutional law. It clarified the principles of fundamental justice under section 7, demonstrated the Court’s willingness to correct its own errors through overruling, and affirmed that Charter rights protect even those engaged in socially controversial activities. The case exemplifies the modern approach to Charter adjudication, which is evidence-sensitive, attentive to the real-world effects of laws, and respectful of the proper roles of both courts and legislatures.