Today the Supreme Court of Canada delivered a landmark unanimous decision in the case of Attorney General of Canada v. Terri Jean Bedford, Amy Lebovitch and Valerie Scott. Canada’s highest court has ruled that three provisions of Canada’s Criminal Code, s. 210 (keeping or being found in a bawdy house), s. 212(1)(j) (living on the avails of prostitution), and s. 213(1)(c) (communicating in public for the purpose of prostitution) violate the s. 7 right to security of the person protected by the Charter of Rights and Freedoms. All three laws have been struck down.
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Rights not rescue
This case was initiated in 2007 by three Ontario sex workers: Terri Jean Bedford, Amy Lebovitch and Valerie Scott. The applicants asked the court to strike down the three provisions of the Criminal Code because they violate sex workers’ constitutional right to security of the person.
In a decision written by the Chief Justice, the court said:
“The prohibitions at issue do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky – but legal – activity from taking steps to protect themselves from the risk.” (para 60)
Pivot, Downtown Eastside Sex Workers United Against Violence and PACE Society intervened in this case and took the position that all three provisions should be struck down. Given the limited time given to interveners for legal argument, we focused our submissions on the communication law, which creates serious dangers for street-based sex workers and prevents them from taking basic safety measures. We argued that a law that has the stated purpose of preventing public nuisance cannot be justified when it results in a risk of serious harm and death to marginalized women. The Supreme Court agreed.
Here is a summary of the judgment:
s. 210 (keeping or being found in a common bawdy house)
The SCC held that the bawdy house law violates sex workers’ constitutionally protected right to security of the person and is struck down. The Court found that this law prevents sex workers from working a fixed location that is safer than working on the street or meeting clients at different locations. (para 64)
Specifically, the Court stated that “the harms identified by the courts below are grossly disproportionate to the deterrence of community disruption that is the object of the law. Parliament has the power to regulate against nuisances, but not at the cost of the health safety and lives of prostitutes. A law that prevents street-prostitutes from resorting to a safe haven such as Grandma’s House while a suspected serial killer prowls the streets, is a law that has lost sight of its purpose.” (para 136)
s. 212(1)(j) (living on the avails of prostitution)
The SCC held that the living on the avails provision violates sex workers’ constitutionally protected right to security of the person and is struck down.
The SCC writes that the law is overbroad in that:
“The law punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes (such as controlling and abusive pimps) and those who could increase the safety and security of prostitutes (for example, legitimate drivers, managers, or bodyguards.” (para 142)
s. 213(1)(c) (communicating in public for the purpose of prostitution)
The SCC held that the communication law violates sex workers’ constitutionally protected right to security of the person and is struck down.
In the decision the court writes:
“By prohibiting communication in public for the purpose of prostitution, the law prevents prostitutes from screening clients and setting terms for the use of condoms or safe houses. In these ways, it significantly increases the risk they face.” (para 71)
In this way, the harms caused by the law is grossly disproportional to intended objective of the law. The court writes:
“If screening could have prevented one woman from jumping into Robert Pickton’s car, the severity of the harmful effects is established” (para 158)
This decision marks a huge step forward for sex workers’ rights and human rights in Canada. The declaration of invalidity suspended for one year, during which time the federal government can consider whether to design new laws that comply with the Charter of Rights of Freedoms.
The full decision is available at: http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/item/13389/index.do
Watch the journey here: