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PROSTITUTION

Canada (Attorney General) v. Bedford, 2012 ONCA 186 (CanLII)


Doherty, Rosenberg, and Feldman JJ.A.:


[1]               For decades, and even for centuries, governments around the world have grappled with prostitution and its associated problems. Some have opted for an outright ban. Others have chosen to decriminalize and regulate certain aspects of prostitution. Still others have criminalized the purchase, but not the sale, of sex.

[2]               In Canada, prostitution itself is legal.  There is no law that prohibits a person from selling sex, and no law that prohibits another from buying it.  Parliament has, however, enacted laws that indirectly restrict the practice of prostitution by criminalizing various related activities.

[3]               At issue in this case is the constitutionality of three provisions of the Criminal Code, R.S.C. 1985, c. C-46, which form the core of Parliament’s response to prostitution:

1.      Section 210, which prohibits the operation of common bawdy-houses.  This prevents prostitutes from offering their services out of fixed indoor locations such as brothels, or even their own homes;

2.      Section 212(1)(j), which prohibits living on the avails of prostitution.  This prevents anyone, including but not limited to pimps, from profiting from another’s prostitution; and

3.      Section 213(1)(c), which prohibits communicating for the purpose of prostitution in public.  This prevents prostitutes from offering their services in public, and particularly on the streets.


[4]               In the court below, the application judge held that these provisions are unconstitutional and must be struck down because they do not accord with the principles of fundamental justice enshrined in s. 7 of the Canadian Charter of Rights and Freedoms.  She reasoned that the challenged laws exacerbate the harm that prostitutes already face by preventing them from taking steps that could enhance their safety.  Those steps include: working indoors, alone or with other prostitutes (prohibited by s. 210); paying security staff (prohibited by s. 212(1)(j)); and screening customers encountered on the street to assess the risk of violence (prohibited by s. 213(1)(c)).

[5]               As we will explain, we agree with the application judge that the prohibition on common bawdy-houses for the purpose of prostitution is unconstitutional and must be struck down.  However, we suspend the declaration of invalidity for 12 months to give Parliament an opportunity to redraft a Charter-compliant provision.

[6]               We also hold that the prohibition on living on the avails of prostitution infringes s. 7 of the Charter to the extent that it criminalizes non-exploitative commercial relationships between prostitutes and other people.  However, we do not strike down that prohibition, but rather read in words of limitation so that the prohibition applies only to those who live on the avails of prostitution in circumstances of exploitation.  This cures the constitutional defect and aligns the text of the provision with the vital legislative objective that animates it.

[7]               We do not agree with the application judge’s conclusion that the ban on communicating in public for the purpose of prostitution is unconstitutional, and we allow the appeal on that issue.


Jim O'Neil, LL.B.

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