Many of Canada’s anti-prostitution laws violate the Charter of Rights and Freedoms and are thus illegal, says the Ontario Court of Appeal in Bedford v AG Canada (2012 ONCA 186) in a decision Monday.
The majority, partially upholding Justice Himel’s groundbreaking 2010 decision in Bedford v AG Canada, held that sections 210 and 212(1)(j) of the Criminal Code violated Bedford’s section 7 Charter right. The result is that sex workers can hire drivers, staff and bodyguards for protection and may work in brothels. On the other hand, the Court was clear that exploitation remains illegal, as does soliciting customers on the street.
Responding to the government’s argument that prostitution is a “matter of personal choice that inevitably places the respondents at risk,” and the choice to en- gage in sex work breaks the “causal chain between the added risk of harm and the criminal prohibitions that limit the [places where sex work can be performed,]” the majority said,”[This submission] implies that those who choose to engage in the sex trade are for that reason not worthy of the same constitutional protection as those who engage in other dangerous, but legal enterprises.”
“Parliament has chosen not to criminalize prostitution.”
“In the eyes of the criminal law, prostitution is as legal as any other non-prohibited commercial activity. A claim that a criminal law prohibition increases the risk of physical harm to persons who engage in prostitution must, for the purpose of the security of the person analysis, be examined in the same way as any other claim that a criminal law prohibition increases the risk of physical harm to persons engaged in any other lawful commercial activity.”
The dissent would have also allowed open solicitation.
The Court suspended the declaration of invalidity for 12 months to give Parliament a chance to redraft the offending provisions, though there is an almost certain chance that this case will proceed to the Supreme Court in the mean time as both sides said publicly before the decision was released that they would appeal if they lost. Prime Minister Harper has also spoken in support of continuing the status quo.
This case arose in part because of the paradoxical situation in Canada where prostitution itself is a legal activity, but many of the activities surrounding it are not. Thus sex workers such as Mrs. Bed- ford could not hire bodyguards, drivers or other helpers to ensure that they do not become victim to a violent customer.
There have been considerable high-profile cases regarding violence against street prostitutes in Canada, including the Robert Pickton case in BC and missing women particularly throughout northern BC and Alberta, as well as in many major metropolitan areas.
