This Article is written by Siddharth Agarwal. He is a 4th Year Student from Symbiosis Law School, Noida. His Areas of interest include Company Law, competition law and taxation. He has critically analysed the case of Canada (Attorney General) v. Bedford, 2013 SCC 72 dealing with the issue of the constitutionality of Canadian laws on Prostitution.

Facts and Background

Amy Lebovitch, Valerie Scott, and Terri Jean Bedford all three applicants were current or former prostitutes. They argued that three laws of the Criminal Code regulating sex work or prostitution were unconstitutional as they isolated their rights under Section 7 of the Canadian Charter of Rights and Freedoms to ‘life, liberty and security of the person.’ The challenging laws were those prohibiting operating or being found in a ‘bawdy house’ – (S. 210), ‘living off the avails’ of a prostitute’ – (S. 212(1)(j)), and communicating for the purposes of prostitution – (S. 213(1)( c )).

In Canada, it is not illegal to sell sex (for money). The Parliament had confined lawful prostitution into two major categories: one, as street prostitution and second, as out-calls, where prostitute goes out and meets the client at a pre-decided location, which may be the client’s house.

Ms Bedford as of the year 2010 had had 14 years of experience in the line of prostitution, catering to different categories. She had encountered brutal violence throughout her career as a prostitute, more so while working as a prostitute of the first category, i.e. a street prostitute. In her experience, indoor prostitution was safer although it was a subjective opinion. She claimed that she had experienced only one incident of “real violence” so far. She now wanted to go back to indoor prostitution but did not want the people assisting her in being subject to earning a livelihood out of prostitution.

Amy Lebovitch is an educated woman who has worked as different types of prostitutes. She considered herself lucky for not being subjected to violence while working as a street prostitute but moved away from the same seeing the stories and injuries of her peers. She had experienced one notable instance of violence as an indoor prostitute which she had failed to report about, out of fear of police scrutiny and the possibility of facing criminal charges. She now worked from her home but feared of being charged under bawdy-house provision and forfeiture of her home. She also showed concern that her partner could possibly be charged with living on the avails of prostitution. She, however, enjoyed her job and did not plan on leaving it.

Valerie Scott was the director of SPOC (Sex professionals of Canada) at the time of the case. Earlier she had worked as a prostitute in many different ways. For a brief period of time, she was forced to work as a street prostitute because indoor clients felt entitled to not use any protection. She had undergone threats of violence, as well as verbal and physical abuse during the same. She had setup a phone centre for prostitutes in Toronto, where when she spoke to the prostitutes, their main concerns were violence from clients as well as the legal matters arising from arrest.

It is to note that all three took significant steps to maintain their own security and also for the ones working under them while working as an indoor prostitute or running an institute of the same.

The Ontario Superior Court of Justice first heard the case and found all the three laws unconstitutional. Then, the Court of Appeal heard the case and found only 210 and 212(1)(j) unconstitutional and only modified 212 (1)(j) instead of striking it down. Then the case came to the Supreme Court of Canada.

Legal Issues

The legal issue in the case was that whether the three laws which are challenged are unconstitutional as they are against the Section 7 of the Canadian Charter of Rights and Freedoms to ‘life, liberty and security of the person’.

The issue was answered in the judgment passed itself.


Criminal Code, R.S.C. 1985, c. C‑46

  1. 210 makes it an offence to keep or be in a bawdy‑house;
  2. 212(1)(j) prohibits living on the avails of prostitution;
  3. 213(1)(c) prohibits communicating in public for the purposes of prostitution.

The Constitution Act, 1982 – Canadian Charter of Rights and Freedoms

  1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
  2. 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.

Judgment and Analysis of the Court

The Supreme Court of Canada delivered a landmark decision which stated that the three provisions contravene the Section. 7 (relating to the security of the person) rights of the sex workers, and that this violation cannot be justified in any way and that it cannot be saved by Section 1. CJ  McLachlin said “The prohibitions at issue do not merely impose conditions on modus operandi of the prostitutes. They go a major step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky but legal activity of prostitution, from taking steps to protect themselves from the risk of harm.”

For S. 210, the SCC held that the bawdy house law violates sex workers’ constitutionally protected right to security of person. The court found the law increased risk in 3 way:-

1) By preventing them from working in fixed indoor locations

2) By interfering with health checks and preventive health measures.

3) By preventing safe houses, where street-based workers can take clients.

Due to the bawdy house provision, the fixed indoor location was prohibited, which as per the testimonies of Ms Bedford and other prostitutes is safer, they are forced to work more as street prostitutes which increases the danger level immensely including not being able to talk terms clearly.

For S. 212 (1)(j), the SCC agreed that the law prevented sex workers from hiring drivers, receptionists and bodyguards which would increase their safety and security. The law was made to target pimps and ‘parasitic, exploitive conduct.’ But the law was capturing a number of non – exploitive relationships negatively impacting their safety. It was overbroad and grossly disproportionate and did more harm than what it sought to protect.

For S. 213(1)(c),(the communicating law), the SCC found that it prevented sex workers from screening clients, having time to set terms (including condom use). Significantly increasing the risks they face. The law displaced sex workers from familiar areas to more isolated and vulnerable areas. Further, it also had the effect of displacing prostitutes from areas which were familiar to them, where they might be supported by friends and/or regular customers, to more isolated areas, in turn making them more vulnerable. The purpose of the law was to combat the nuisance caused by street prostitution. But if it interferes and increases the already risky job of street prostitutes, then the harmful effects of the law is established and it should be struck down.

The SCC said that all the three laws infringe the sex worker’s rights under Section 7 in such a way which is not in accordance with the ‘principles of fundamental justice’. There are three ways in which a law can violate this:

a.) The impact it has on people is ‘grossly disproportionate’ to the purpose of the law, for eg. a life sentence for spitting on road.

b.) It is ‘overbreadth’. It means that the law goes too far and interferes with some conduct that bears no connection to its objective.

c.) There is a scope of ‘arbitrary’ in the law, i.e., there is no connection or clarity with the purpose of the law and the effect.

Critical Analysis

The SCC disagreed on the argument of the Attorney General that sex workers could avoid harm by simply choosing not to engage in prostitution, and that ‘third parties’ such as johns and pimps are a real source of harm they experience, not the law. He also said that even though some prostitutes may fit this description and freely chose this job, many others have no meaningful choice but to do so. Also, the violence of a john does not diminish the role of the state in making a prostitute more vulnerable to that threat.

The SCC also disagreed with the Court of Appeal’s statement that the application judge’s findings on social and legislative facts, which are the facts about the society at large, were not entitled to deference. SCC said that appellate courts should not interfere with a trial judge’s findings of facts (social and legislative), absent a substantial and overriding error.  

Then the SCC distinguished between S.1 and S.7 of the Charter of Rights and Freedoms. It said that “in brief, although the concepts under S. 7 and S.1 are rooted on similar concerns, they are analytically distinct.”

The Attorney General contended that Section 7 is not engaged because there is the presence of an insufficient causal connection between the laws and the risks faced by prostitutes. To this, the SCC stated that three possible standards for causation were raised for their consideration:

1) Sufficient causal connection – flexible standard, which allowed the circumstances of each particular case to be taken into account. SCC said that this standard should prevail.

2) A ‘general impact’ approach, which was adopted by the Court of Appeal

3) ‘Active and foreseeable’ and ‘direct’ causal connection.

The Court also cited Canada (Prime Minister) v Khadr, at para 21 for the point that the impugned government’s action or law to be the only or the dominant cause of the biasness suffered by the appellants is in no way a requirement for a sufficient causal connection to be established and is rather fulfilled by a reasonable conclusion, drawn on a balance of possibilities.

With respect to S.210, alternate legal reasoning is that why being an inmate of a bawdy house should be offensive? As the three witnesses and rest of the prostitutes have stated that more often than not, women go into prostitution when they do not really have a choice and out of necessity. Then it is viable to reason that the inmates of that bawdy house are there out of necessity and for ‘security’, as a place is known to them, to work, so that they can be safe, as mostly, the prostitution is gender-stereotyped, with women as prostitutes and men as the pimps and clients. Thus the Court is correct in finding that the provision comes in the way of providing a safe working environment to the prostitutes.
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With respect to S. 212(1)(j), let us take a situation wherein the prostitute took up prostitution to help someone make a living, or simply is under the care of the prostitute. What wrong has that person done? Can the law really weigh between one person in need to let’s say ten people who are pimps? It would be unjust and unfair to that person. Amy Lebovitch said that she was afraid that her partner will be charged of living on avails of prostitution. Why should a prostitute’s spouse be charged for just living off their avails? This makes no sense. A prostitute is a human being and still has the right in having a relationship. This would make them afraid of having one. The point that the workers cannot hire safety measures like bodyguards is in itself against their right to take safety precautions.

Finally, with respect to S. 213(1)( c), this section mostly applied to street prostitutes who stand at designated spots and red-light districts. These street prostitutes out of fear of getting caught do not have enough time to talk terms with the clients – terms such as use of a condom (required for preventing diseases like HIV/AIDS), place, etc. This section also applies to clients as it is written ‘hiring a prostitute’. If selling sex for money is legal, then the one making the offer should at least have the opportunity to identify his/her clients. The law of selling sex in itself then juxtaposes with its restriction through this section. The prostitutes are already under a lot of pressure to pick up a client, maybe because their pimps pressurize them, or they require the money urgently. This makes them not care about their own safety and may lead to other criminal offences like homicide and rape. Known areas make them feel a little safer because if anything happens, they know where to go, whom to go to. A new place in itself makes a person quite vulnerable.

John Stuart Mill raises a point in his essay On Liberty that the idea that the will, opinion, or morality of the majority is foolproof reflects the tendency to suppress any kind of behaviour or action that goes against culture or custom. In the event that they don’t need a person to talk about it, they surely don’t need a person to do it. For Mill, this concealment is baseless. On the off chance that the activities of an individual do in truth hurt another, at that point others ought to and some of the time are completely required to meddle. Here the action of not allowing a safe place, other forms of security are harming the prostitutes, and thus the Court needs to interfere and modify the laws.

Aftermath and Conclusion

Years after the Bedford case happened and the Government has passed the C-36 Bill in the year 2014, Canada remained in a moral, political and philosophical debate with regards to the acceptability of sex work in the country. The Protection of Communities and Exploited Persons Act, S.C. 2014, c. 25 went on to adopt the so-called “Nordic model” which has been implemented by many of the European countries and has also been endorsed by a lot of other countries. The bill had repealed the three sections which were challenged in the case.

The C-36 bill that got recognized as an Act on 6th November, 2014 read that the new criminal law regime seeks to protect the equality and dignity of all the Canadians by prohibiting and denouncing the buying of sexual services, the exploitation of the prostitution in any way, the development of economic interests with respect to the sexual exploitation of  the prostitutes of others and the institutionalization of prostitution by the way of commercial enterprises, such as massage parlours, strip clubs, escort agencies, etc that offer sexual services for sale to the customers. The Act went on to add five new provisions to the Criminal Code to meet the said objectives, which are as follows:

  • Purchasing Offence (clients are criminalized)
  • Advertising Offence (third-party advertisers are criminalized)
  • Material Benefit Offence (commercial enterprise is criminalized but legitimate business relations–security, secretary, babysitters–are allowed)
  • Procuring Offence (pimps are criminalized)
  • Communicating Offence (selling services near children is criminalized)

By way of adopting the Nordic model of criminalizing the activities of all clients and pimps, the federal government had completely failed to take into consideration the existence of the very needs of the “victims” that they were trying to protect that were so clearly discussed in the case of Bedford.

Despite the presence of multiple models, it would be just to say that there were no comprehensive solutions that could address the various problems arising out of prostitution. Various researches have demonstrated that there exist drawbacks, however, in engaging in moral arguments that pose sex workers as victims who are in need of salvation or deviant agents that perturb public welfare and morality. The Canadian government should form a policy which refrains from traditions of characteristic violence or immorality associated with sex work, and instead, it should allow the sex workers’ voices to influence the development of laws aimed made in their regard. While the moral, political and philosophic debates may continue to exist and rage, the law should look forward to empowering the sex workers to effectively minimize the risks encountered by them, and by doing so, protect them in the right manner.




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