Monday, March 26, 2012

Ontario Court of Appeal on the Constitutionality of Criminalizing Prostitution

 In a much anticipated decision, the Court of Appeal for Ontario has just rendered its opinion in Canada (Attorney General) v. Bedford, 2012 ONCA 186 regarding constitutional challenges to commercial sex.

Note that to a large extent - - - or at least much larger than in most of the U.S. - - - Canada has decriminalized commercial sex.  At issue in Bedford is the constitutionality of three provisions of the Criminal Code 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.

The constitutional challenges were based on the Canadian Charter of Rights and Freedoms.  Specifically, §7 provides:

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

and §2(b) provides:

Everyone has the following fundamental freedoms:     ...
                    (b) freedom of ... expression

Section 1 of the Charter is the limiting (or balancing) provision providing that the Charter

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.....

Ontario court of appeal ceiling

In a closely reasoned, well-organized, and lengthy opinion, the Court of Appeal for Ontario reached disparate conclusions.

The provincial high court held Section 210 regarding the operation of bawdy houses unconstitutional, but suspended the declaration of invalidity to allow Parliament to redraft the provision. 

The court held that Section 212(1)(j) should be interpreted to save its constitutionality, by including words of limitation so that it applies "only to those who live on the avails of prostitution in circumstances of exploitation."

Over two dissents in an otherwise unanimous opinion, the court upheld the constitutionality of criminalizing "communicating for the purpose of prostitution in public." 

Sure to elicit much commentary (initial reports here, here & here) and perhaps appeal to the Supreme Court of Canada, this opinion is of obvious import to Canadian constitutional scholars, but also merits a great deal of attention from ConLawProfs south of the border.

RR
[image: ceiling in Osgoode Hall, Court of Appeal for Ontario, via]

http://lawprofessors.typepad.com/conlaw/2012/03/ontario-court-for-appeal-on-the-constitutionality-of-criminalizing-prostitution.html

Comparative Constitutionalism, Fundamental Rights, Gender, Sexuality, Speech | Permalink

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