1. What is the name of the case?
Canada (Attorney General) v. Bedford,
2. What was the date
of the case? What was the date of the judgment?
The
Date of the Case was on June 13, 2013 and the Judgment was also given on
December 20, 2013
3.
In which court was the case heard?
The Case was heard at the Supreme Court
of Canada
4. Was the case heard in another
court(s) previously? If so, which one(s)?
5.
How many judges were on the panel of the case? Who were they?
Nine Judges in total, the
Puisne
Justices were, Louis LeBel, Morris Fish, Rosalie Abella, Marshall Rothstein, Thomas
Cromwell, Michael Moldaver, Andromache
Karakatsanis, Richard Wagner, and Chief Justice Beverly Mclachlin
6. Who
is the appellant(s) and who is the respondent(s)? (Who is challenging whom?)
Terri
Jean Bedford, Amy Lebovitch and Valerie Scott, VS. AG Canada
7.
Are there any interveners? If so,
who are they?
A lot of Interveners were present in this Case, Attorney
General of Quebec, Pivot Legal Society, Downtown Eastside Sex Workers United
Against Violence Society, PACE Society, Secretariat of the Joint United Nations
Program on HIV/AIDS, British Columbia Civil Liberties Association, Evangelical
Fellowship of Canada, Canadian HIV/AIDS Legal Network, British Columbia Centre
for Excellence in HIV/AIDS, HIV & AIDS Legal Clinic Ontario, Canadian
Association of Sexual Assault Centers, Native Women’s Association of Canada,
Canadian Association of Elizabeth Fry Societies, Action Ontarienne Contre la Violence
Faite aux Femmes, Concertation des luttes contre l’exploitation sexuelle,
Regroupement Québécois des Centres d’aide et de lutte Contre les Agressions à Caractère
Sexuel, Vancouver Rape Relief Society, Christian Legal Fellowship, Catholic
Civil Rights League, REAL Women of Canada, David Asper Centre for
Constitutional Rights, Simone de Beauvoir Institute, AWCEP Asian Women for
Equality Society, operating as Asian Women Coalition Ending Prostitution and
Aboriginal Legal Services of Toronto Inc.
8.
Which policy or law is being challenged?
Sections
210, 212(1) (j) and 213(1) (c) of The Criminal Code. Living off the avails of prostitution; 2)
keeping a common bawdy house; and 3) communicating in public for the purpose of
engaging in prostitution, In Criminal Code Section 210-213
9.
What was the ruling of the court?
·
What
is the basis of the reason for judgment?
Chief Justice Beverly Michoclin gave the judgment of the Court “It is not a crime in
Canada to sell sex for money. However, it is a crime to keep a
bawdy-house, to live on the avails of prostitution or to communicate in public
with respect to a proposed act of prostitution. It is argued that these
restrictions on prostitution put the safety and lives of prostitutes at risk,
and are therefore unconstitutional.”
·
Is
it the same as the ruling of the lower court(s) (if applicable)?
Appellants
Terri Jean Bedford, Amy Lebovitch and
Valerie Scott road to challenging prostitution laws in Canada started
out in Ontario Superior Court of
Justice, followed by the Ontario Superior
Court of Appeal, before the Supreme Court of Canada. The ruling in the Ontario
superior court was 1) living off the avails of prostitution; 2)
keeping a common bawdy house; and 3) communicating in public for the purpose of
engaging in prostitution, In Criminal Code Section 210-213 were found to be
unconstitutional.[1]
The ruling in the Appellant Court was a little
different as they found that 1) living off the avails of prostitution; 2) keeping a common bawdy house,
were unconstitutional but not 3) communicating in public for the purpose of
engaging in prostitution. The Supreme Court gave the same ruling as the Ontario Superior Court of
Justice but
the ruling was not the same in the Ontario Superior Court of Appeal:
·
Was
the ruling unanimous (was it one opinion or concurring opinions)
The ruling was unanimous
·
Were
there dissenting opinions?
There were no dissenting opinions
Individuals in situations that make them vulnerable such as sex trade
workers rejoiced when the SCC ruled in
favor of applicant Terra Bedford in the Court Case (Attorney General) v.
Bedford, 2013 SCC 72.[2]
The fear against the Court Party, the broad terms and entrenched laws of the
Charter of Rights and Freedoms, and The Rule of Law that has been granted by
the Canada Act 1982, makes a strained relationship between the Prime Minister
of Canada, Stephen Harper and the Supreme Court of Canada (SCC). The SCC has
the ability to grant remedy to any laws in the Criminal Code that are found to
be inconsistent with the Charter of Rights and Freedoms and allows interest
groups to partake in Charter Litigation. The ruling in the Bedford case was not
without controversy as media outlets extensively reporting on the judgement and
the courts, Parliament has been ordered by the SCC to change laws and must
respond
The Supreme Court of Canada is the highest Court in the country, to get
there one usually needs to first take their Case to the Inferior Courts, then
Provincial Superior Court followed by the Provincial Superior Court of Appeal
then the SCC. The path is not guaranteed, one’s appeal needs to be granted by
the higher Courts and they can decline a lower Court’s appeal without giving
any reason. The SCC is a legislative body that wields the power to grant remedy
to Laws that have been passed by the House of Commons and Provincial
Legislation that are inconsistent with the Charter of Rights and Freedoms. Section 52(1) of the Constitution Act, 1982, "The
Constitution of Canada is the Supreme Law of Canada, and any Law that is
inconsistent with the provisions of the Constitution is, to the extent of the
inconsistency, of no force or effect."[3]
The Charter is the Supreme Law of the land, and no Law can go against
this entrenched statute as its purpose is to give Canada, Rule of Law. Supreme
Court Judges, although not elected, are appointed by the executive, who is an
elected MP, and an elected party member, the Supreme Court is a part of a
system of checks and balances that ensures that Canada is represented and
accountable to all citizens.
Terri Jean Bedford, Amy Lebovitch and Valerie Scott were the Appellant
in the SCC hearing. All three experienced violence and abuse for most of their
lives. The qualitative evidence presented focused on how the sex trade workers
could not call for help from police if they were being attacked because they
were in their home while they were exchanging sexual services for money. The
sex trade worker would be prosecuted. Bedford has been convicted in the past
for “keeping a bawdy house” and has fought prostitution laws since the 1994
police raid on her “Bondage Bungalow” in Thornhill, which made her famous. She
was convicted of keeping a common bawdy house in 1998.” Bedford grew up in
poverty and was taken away from her parents when she was a young girl; she had
to battle a drug addiction and had her daughter taken away from her. Bedford
has worked as an escort, a street prostitute and a dominatrix. Being that she
is a woman from a poor family and was raised in foster care suggests that the
sex trade is a social problem and not a criminal one.[4]
Women growing up in poverty have an incredible disadvantage in
Canada. The lack of financial
opportunity and positive goal orientated guidance can impede someone into the
dark corners of society. The result of fear and ridicule living in poverty
and/or becoming a prostitute can be challenging to get help and come out when
you are labelled a deviant that suggests “prostitution requires a devalued
class.”[5] Bedford's
background is one of experiencing violence and hardship. She is fighting for
sex workers to obtain the help they need so that the future of sex workers will
not be in danger. With a change in laws, sex workers could also ask for help
from law enforcement, and feel protected in their home. Chief Justice Beverley McLachlin
noted “Parliament has the power to regulate against nuisances, but not at the
cost of the health, safety and lives of prostitutes.”[6]
On December 20, 2013 the
Supreme Court of Canada, Chief Justice Beverly McLachlin gave the judgment of
the Court that
“it
is not a crime in Canada to sell sex for money.
However, it is a crime to keep a bawdy-house, to live on the avails of
prostitution or to communicate in public with respect to the proposed act of
prostitution. It is argued that these
restrictions on prostitution put the safety and lives of prostitutes at risk,
and are, therefore, unconstitutional.” [7]
This law was
found to be unconstitutional under section 7. As it states: “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.”[8] Under section seven in the Charter, the words
(everyone) has the right to (security) was used against the s. 210,
Criminal Code, R.S.C. 1985, c. C-46 that makes it an offence to keep or be
in a bawdy‑house. Legally defined in “common bawdy-house”
means a place that is,(a) kept or occupied, or(b) resorted
to by one or more persons, for the purpose of prostitution or the practice of
acts of indecency.[9] The definition when placed in s.210 of the
Criminal Code, makes it a criminal act for prostitutes to have their own place
of residence. The law states “ a prostitute may even be found guilty of keeping
a common bawdy-house where he or she has used his or her residence by herself, for the purposes of
prostitution”[10]
The Bedford judgement was
a land slide victory as all nine judges in the SCC ruled in favor of appellant
Terra Bedford. “The
appeals should be dismissed and the cross Appeal allowed. Sections 210, 212(1) (j)
and 213(1) (c) of The Criminal
Code are declared to be inconsistent with the Charter. The declaration of invalidity should
be suspended for one year.”[11]
The solution used in this
case was based on section 52 of the Constitution Act 1982 which states: “the
Constitution of Canada is the supreme law of Canada, and any law that is
inconsistent with the provisions of the Constitution is, to the extent of the
inconsistency, of no force or effect.”[12] However, the Supreme
Court of Canada did give the federal government one year to write a new law
into the criminal code. The remedy was granted based on its constitutional inconsistency
countries do not have some form of regulation on prostitution, and the Supreme
Court wanted to give the federal government position to make a new law. The
Power of the Supreme Court of Canada upholds the rule of law, so that any party
that any government must create bills according to the rules in the Charter.
Charter Critics of the Conservative Government
did not celebrate the Charter of Rights and Freedoms anniversary.[13] Charter Critics are under the perception that
the Court Party is under the powers of minorities and radical feminist
ideologies. This perception is based on Alberta politician Ted Morton, who is a
member of the Conservative Party in Alberta and political scientist Rainer
Knopff, who argue that the primary tool of the Charter is for Public-Interest
Litigation. This tool is used by the Court Party that consists of National
unity advocates, civil libertarians, equality seekers, social engineers and
post-materialists. They say that the
courts should not be allowed to strike down sections in the Criminal Code that
have been found to be unconstitutional, because we are allowing minorities to
dictate our future and not the majority who have elected policies. Morton and
Knopff argue that the living tree that is the Charter lacks the ability to
transform into another tree.[14]
Stephen Harper, who leads the Federal Conservative Government, has also
been a lifelong critic of the Charter. In 1996, Harper gave a speech to the
Council for National Policy. He
critiqued the Supreme Court stating “we have a Supreme Court, like yours, which,
since we put a Charter of Rights in our Constitution in 1982, is becoming
increasingly arbitrary and important.”[15]
It is interesting to point out that Harper used the words “increasingly
arbitrary” as this suggests that Harper considers the SCC, power is getting out
of hand. Harper holds the same views as Ted Morton. Harper sees the French,
Homosexuals, and feminist as a threat to traditional values. Harper critiqued the values of the former
Progressive Conservative Party before the Reform party, of which he was a part,
merged with the PC party. Harper stated that:
“They were in favour of
gay rights officially, officially for abortion on demand. Officially – what
else can I say about them? Officially for the entrenchment of our universal,
collectivized, health-care system and multicultural policies in the
constitution of the country”[16]
The people he was
delivering to at the Council for National Policy were Conservative and
traditional value advocate interest groups. They have strong views against abortion
and gay rights. Harper's perspective on
the courts striking down traditional value laws is seen as threatening to his
ideology of the majority rule policy body that Harper would very much desire.[17]
The Charter of Rights and Freedoms does have critics in the media,
sometimes this criticism is broadcasted overtly other times you need to look at
in depth to see their criticism. Sun News Media covered the story on the
Bedford case results “SUPREME COURT GREEN LIGHTS PROSTITUTION” where Media host
Brian Lilley gives his argument against the Supreme Court of Canada. Canada is
no longer ruled by the elective representative government but is now ruled by
nine unelected judges. This is misleading because the nine judges are appointed
by the Governor-General on the advice of the executive (Stephen Harper) who is
an elected Member of Parliament. The Broadcast also Interviews Jason Kenny who
is a Conservative MP, who believes that it was shameful that the elected
representatives need to work within the Rule of Law. Jason Kenny tells the Sun
News reporter that we need to have our elected representatives to have the
final say because that would be more democratic.
Prime Minister Stephen Harper could use the notwithstanding clause in
the Charter of Rights and Freedoms (section 33 (b). This would allow the
Government to uphold the Supreme Court’s decision on prostitution for five
years. The Sun News Media also recommend a Nordic model for prostitution laws
in the criminal code, putting the offence on the johns as they are responsible
for violence against women when partaking in the sex trade.[18]
The Globe and Mail
covered the results of The Bedford Case, which illustrated their perception on
prostitutes and the Conservative government’s response on the remedy granted by
the SCC, to get the nation laws on prostitution. The Globe and Mail reports “Tories
Prepare to Fast Track Prostitution Bill C-36, is Proposed by the Honorable
Peter MacKay, for Central Nova.”[19] The article was
under-reported and over-represented by Conservative party members. Even the
critics of the Proposed Bill C-36 are controversial because it may be
unconstitutional. This offered insights to the Conservative Governments
proposed Bill, C-36 that proposed to make it a criminal offence to sell sexual
favors near schools and playgrounds. The
Bill would also make it illegal for a media outlet to promote sex trade workers
knowingly.[20]
Charter
Litigation has proven that the Charter of Rights and Freedoms change our laws
for the twenty-first century. Conservative policy to make Prostitution a
criminal act is going to need to grow, regardless of the party that rules the House
of Commons. “Prostitution has persisted in many civilizations through many
centuries and the failure of attempts eradicate it out by repressive
legislation shows it cannot be abolished through the agency of criminal
law."[21]
Will the Swedish model for prostitution work? Alternatively, are we still
individualizing the problem by prosecuting the buyers of sex? The Charter's
interpretation will decide what law binding forces need to change for society
to move in the right direction.
Bibliography
“Canada (Attorney General) v. Bedford, SCC Cases (Lexum).” 2014. Accessed
October 19. <http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13389/index.do.>
Supreme Court Rulings, 2014. Accessed September 28. <https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13389/index.do.>
“CBC, Canada Votes 2006 Leaders and
Parties, Issues.” Accessed November 9 2014. <http://www.cbc.ca/canadavotes2006/leadersparties/harper_speech.html.>
“Constitution Acts, 1867 to 1982.”
2012, January. <http://laws-lois.justice.gc.ca/eng/const/page-15.html.>
“Constitutional ‘Divisions’ Keep Harper
from Celebrating Charter, Politics, CBC News.” 2014. Accessed November 10.
<http://www.cbc.ca/news/politics/constitutional-divisions-keep-harper-from-celebrating-charter-1.1132860.>
“Council for National Policy.”
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“Criminal Code.” 2014,
September. <http://laws-lois.justice.gc.ca/eng/acts/C-46/section-197.html.>
“Current Publications, Law, Justice
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of Congress, Library of Congress.” 2010. <http://www.loc.gov/lawweb/servlet/lloc_news?disp3_l205402311_text.>
Heritage, Canadian, Communications, and Government of Canada. 2013a. “Section 7-14, Legal Rights.” <http://www.pch.gc.ca/eng/1356636395105/1356636488152.>
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Charter. 2013b. “Section 52 -
Constitution Act, 1982.” <http://www.pch.gc.ca/eng/1355345301024/1355345382146.>
“Multidimensional Analysis as a Window
into Activism Scholarship, Searching for Meaning with Sniffer Dogs,
Richard Jochelson, Academia.edu.” 2014. Accessed November 10. <http://www.academia.edu/501832/Multidimensional_Analysis_as_a_Window_into_Activism_Scholarship_Searching_for_Meaning_with_Sniffer_Dogs.>
“Supreme Court Strikes down
Canada’s Prostitution Laws, Politics, CBC News.” 2014. Accessed October
22. <http://www.cbc.ca/news/politics/supreme-court-strikes-down-canada-s-prostitution-laws-1.2471572.>
“Supreme Court Strikes down Prostitution Laws, Straight Talk and Hard News, SunNews Video Gallery.” 2014.
Accessed November 3. <http://www.sunnewsnetwork.ca/video/featured/straight-talk-and-hard-news/868018287001/supreme-court-strikes-down-prostitution-laws/2955333119001#2956498534001.>
“Toronto Star, The Making of A‘bad
Girl” 2014. Accessed November 10. <http://www.thestar.com/news/gta/2011/06/13/the_making_of_abad_girl.html.>
"The Globe and Mail,"Supreme
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[1] (“Global Legal Monitor: Canada: Government Appeals
Prostitution Ruling, Global Legal
Monitor, Law Library of Congress, Library of Congress” 2010)
[2] (“Canada (Attorney General) v. Bedford - SCC Cases
(Lexum)” 2014a)
[3] (“Constitution Acts, 1867 to 1982” 2012)
[4] (“The Making of A‘bad Girl’, Toronto Star” 2014)
[5] (“Current Publications: Law, Justice and Rights:
Prostitution in Canada: International Obligations, Federal Law, and Provincial
and Municipal Jurisdiction.” 2014)
[6] (“Supreme Court Strikes down Canada’s Prostitution
Laws - Politics - CBC News” 2014)
[7] (“Canada (Attorney General) v. Bedford - SCC Cases
(Lexum)” 2014b)
[10] (“Current Publications: Law, Justice and Rights:
Prostitution in Canada: International Obligations, Federal Law, and Provincial
and Municipal Jurisdiction (PRB 03-30E)” 2014)
[11] (“Canada (Attorney General) v. Bedford - SCC Cases
(Lexum)” 2014a)
[12] (Heritage, Communications, Canada, 2013)
[13] (“Constitutional ‘Divisions’ Keep Harper from
Celebrating Charter - Politics - CBC News” 2014)
[14](“Multidimensional Analysis as a Window into Activism
Scholarship: Searching for Meaning with Sniffer Dogs, Richard Jochelson -
Academia.edu” 2014)
[15] (“CBC - Canada Votes 2006 - Leaders and Parties -
Issues” 2014)
[16] (“CBC - Canada Votes 2006 - Leaders and Parties -
Issues” 2014)
[17] (“Council for National Policy” 2014)
[18] (“Supreme Court Strikes down Prostitution Laws :
Straight Talk and Hard News : SunNews Video Gallery” 2014)
[19] (The
Honourable Peter Gordon Mackay” 2014)
[20] (“Tories Prepare to Fast-Track Prostitution Bill
through Parliament - The Globe and Mail” 2014)
[21] (“The Victim as Criminal, A Consideration of
California’s Prostitution Law - Viewcontent. 2014)
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