Prostitution in Canada - Constitutional and Case Law

Constitutional and Case Law

The passage of the Canadian Charter of Rights and Freedoms in 1982 allowed for the provision of challenging the constitutionality of laws governing prostitution in Canada in addition to interpretative case law. Other legal proceedings have dealt with ultra vires issues (whether a jurisdiction, such as a Provincial Government or municipality, has the powers to legislate on the matter).

In 1990, the Supreme Court of Canada upheld the law which bans public solicitation of prostitution, arguing that the law had the goal to abolish prostitution, which was a valid goal. Reference re ss. 193 and 195.1 of Criminal Code, (the Prostitution Reference), 1 S.C.R. 1123 is a decision of the Supreme Court of Canada on the right to freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms, and on prostitution. The Court held that, although the criminal code provision that prohibited communication for the purpose of engaging in prostitution was in violation of the right to freedom of expression, it could be justified under section 1 of the Charter and so it was upheld. The majority found, with a 5:2 split and both women dissenting that the purpose of eliminating prostitution was a valid goal, and that the provision was rationally connected and proportional to that goal. Accordingly, the provision was upheld.

In 2010 a decision of the Ontario Superior Court in Bedford v. Canada held that the key provisions of the Criminal Code dealing with prostitution (Keeping a bawdy house; Living of the avails; Soliciting or Communicating for the purpose) were invalid, but a stay of effect was put in place. This was appealed by the crown resulting in a decision by the Ontario Court of Appeal on March 26, 2012. That court upheld the lower court's ruling on bawdy houses, modified the ruling on living on the avails to make exploitation a criminal offence, but reversed the decision on soliciting, holding that the effect on communities justified the limitation. Two of the five judges dissented from the last ruling, stating that the law on solicitation was not justifiable. The court continued a stay of effect of a further twelve months on the first provision, and thirty days on the second.

Both parties had up to sixty days to appeal this decision to the Supreme Court of Canada and on April 25, the federal government stated it would do so. On October 25, 2012, the Supreme Court of Canada agreed to hear the appeal. . The Supreme Court will also hear a cross-appeal by sex-trade workers on the Court of Appeal for Ontario's decision to ban solicitation.

Meanwhile a related challenge was mounted in British Columbia in 2007, but did not proceed due to a procedural motion by the Attorney General of Canada seeking dismissal on the grounds of lack of standing by the litigants. This was upheld by the BC Supreme Court in 2008, but successfully appealed in 2010. The Attorney General then appealed this decision of the British Columbia Court of Appeal to the Supreme Court of Canada who released their decision on September 21, 2012. They dismissed the appeal enabling the case to once again proceed in the court of first instance.