On 20 December 2013, the Supreme Court of Canada made a significant ruling relating to the rights of sex workers. In the case of Canada (Attorney General) v Bedford, a unanimous nine-panel Supreme Court bench ruled that various prostitution laws were unconstitutional.
Canada, like most southern African countries (excluding South Africa), does not prohibit the selling or buying of sex. However, various provisions of the Canadian Criminal Code prohibit acts related to sex work, as is the case in southern Africa. Sections 197 and 210(1) of the Canadian Criminal Code make it an offence to keep or be found in a place used for prostitution (a common bawdy-house); section 212(1)(j) makes it an offence to live wholly or in part on the avails of prostitution of another person; and section 213(1)(c) makes it an offence to communicate or attempt to communicate with someone in public for the purpose of engaging in prostitution. It was argued that these restrictions on sex work put the safety and lives of sex workers at risk and accordingly violated sex workers’ constitutional right to security of person (section 7 of the Canadian Charter of Rights and Freedoms). Essentially, compliance with these laws meant that sex workers could not increase their security by working indoors, by screening clients or by hiring drivers, bodyguards, assistants or receptionists.
The Attorneys General sought to justify the Criminal Code provisions by saying that the immediate harms suffered by sex workers were committed by clients and pimps, and that the sex workers had chosen to engage in a risky activity. The Supreme Court rejected these arguments. According to the court, the violence perpetrated by clients and pimps did not diminish the role of the State in making sex workers more vulnerable to that violence. The court found that the claimants had established a sufficient causal connection between the State-caused effect and the prejudice suffered by the claimants, for section 7 to be engaged. The court further recognised that the engagement in prostitution was often a constrained choice, and even where a person freely engaged in prostitution, the act of selling sex was a legal activity and sex workers were entitled to the means to protect themselves from risks.
Having found that the provisions negatively impacted on sex workers’ security of person, the court proceeded to enquire whether the provisions complied with the principles of fundamental justice which prohibit arbitrariness, over-breadth and gross disproportionality. These principles require that there must be a rational connection between the effects and objectives of a law.
The court held that the objectives of the prohibition of bawdy-houses are to combat neighbourhood disruption and to safeguard public health and safety. The court concluded that the negative impact of this prohibition on sex workers’ security of person is disproportionate to these objectives – ‘Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes’.
The court further held that the purpose of the ‘living off avails’ prohibition is to target the exploitative conduct of pimps. The court concluded however that the prohibition is overly broad in that it criminalises a number of non-exploitative relationships unconnected with the law’s purpose.
Finally, the court held that the objective of the communicating provision is to prevent some of the nuisances caused by street prostitution by removing it from the public view. However, the court concluded that the negative impact of the provision on the safety and lives of street sex workers is a grossly disproportionate response to the possibility of nuisance.
In finding that these prohibitions are unconstitutional, the court made it clear that it was not passing judgment on whether prostitution should be legal or not. In this respect, the Supreme Court of Canada made a significant comment on the extent to which courts should influence prostitution policy. The court concluded that the regulation of prostitution is a ‘complex and delicate matter’ which parliament can choose how to respond to. For this reason, the Supreme Court suspended its declaration of invalidity of the prohibitions for one year, to provide the Canadian parliament with an opportunity to enact more appropriate regulatory measures and to avoid ‘moving abruptly from a situation where prostitution is regulated to one where it is entirely unregulated’.
The court’s remedy highlights some of the benefits and limitations of litigation. On the one hand, the judgment has forced the issue of prostitution regulation onto the parliamentary agenda, determined how quickly it should be dealt with and provided some guidelines on the constitutional considerations which should inform any regulatory measures imposed by parliament. On the other hand, the judgment postponed the impact of the declaration of invalidity, thus leaving sex workers in an acknowledged dangerous position for a further year.
The judgment is significant because it affirms that sex workers have the right to security of person and will hopefully bolster the advocacy arguments of sex worker rights activists in many countries when they engage with national policy-makers. The judgment goes beyond that of earlier jurisprudence on sex worker rights in that it recognises the right of sex workers to choose how to engage in sex work and recognises the importance of providing sex workers with choices on how to mitigate some of the risks involved in their occupation. In this respect, the judges should be lauded for the non-judgmental and objective manner in which they approached the legal questions and evaluated the evidence presented in the case.