Bedford et al. v. Canada (Attorney General) 2012 ONCA 186
Civil Rights - Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7)
The applicants challenged the following three Criminal Code provisions that indirectly restricted the practice of prostitution by criminalizing various related activities. Section 210, which prohibited the operation of common bawdy-houses, prevented prostitutes from offering their services out of fixed indoor locations such as brothels, or even their own homes. Section 212(1)(j), which prohibited living on the avails of prostitution, prevented anyone, including but not limited to pimps, from profiting from another’s prostitution. Section 213(1)(c), which prohibited communicating for the purpose of prostitution in public, prevented prostitutes from offering their services in public, and particularly on the streets.
The Ontario Superior Court, in a decision reported at  O.T.C. Uned. 4264, held that the provisions were unconstitutional and had to be struck down because they did not accord with the principles of fundamental justice enshrined in s. 7 of the Canadian Charter of Rights and Freedoms. The court reasoned that the challenged laws exacerbated the harm that prostitutes already faced by preventing them from taking steps that could enhance their safety. Those steps included: 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)). The court also held that s. 213(1)(c) was unconstitutional and had to be struck down because, inter alia, it constituted a prima facie infringement of s. 2(b) of the Charter and could not be saved by s. 1. The court issued supplementary reasons respecting a stay of the judgment and costs. See  O.T.C. Uned. 5712. The Attorney Generals of Canada and Ontario appealed the decision on the merits.
The Ontario Court of Appeal allowed the appeal in part. The court agreed that the prohibition on common bawdy-houses for the purpose of prostitution was unconstitutional and had to be struck down. However, it suspended the declaration of invalidity for 12 months to give Parliament an opportunity to redraft a Charter-compliant provision. The court also held that the prohibition on living on the avails of prostitution infringed s. 7 of the Charter to the extent that it criminalized non-exploitative commercial relationships between prostitutes and other people. However, the court did not strike down the prohibition, but read in words of limitation so that the prohibition applied only to those who lived on the avails of prostitution in circumstances of exploitation. The court, MacPherson and Cronk, JJ.A., dissenting on this point, overturned the application judge’s conclusion that the ban on communicating in public for the purpose of prostitution was unconstitutional. The court extended the stay on the application judge’s decision for a further 30 days so that all parties could consider their positions.