Canada (Attorney General) v. Bedford

Canada (Attorney General) v. Bedford
Case name	Canada (Attorney General) v. Bedford
Court	Supreme Court of Canada
Date decided	2013-12-20
Citations	[2013] 3 S.C.R. 1101, 2013 SCC 72
Judges	McLachlin C.J., LeBel, Abella, Cromwell, Moldaver, Karakatsanis, Wagner JJ.
Prior actions	Ontario Court (Superior Court) decision 2010; Ontario Court of Appeal 2012

Canada (Attorney General) v. Bedford was a landmark Supreme Court of Canada decision striking down three provisions of the Criminal Code affecting activities around prostitution and sex work. The ruling unanimously found that prohibitions on keeping a common bawdy-house, living on the avails of prostitution, and communicating in public for the purposes of prostitution violated section 7 of the Canadian Charter of Rights and Freedoms by creating dangerous conditions that deprived individuals of life, liberty, or security of the person. The Court suspended the declaration of invalidity to allow Parliament to respond.

Background

The case arose from long-standing legal and political debates involving the regulation of prostitution law in Canada, the status of sex work under the Criminal Code, and constitutional challenges grounded in the Canadian Charter of Rights and Freedoms. Claimants included former sex workers and advocates who had earlier litigated in the Ontario Superior Court of Justice and the Ontario Court of Appeal. The litigation intersected with public policy discussions in the Parliament of Canada, interventions by civil society groups such as the Canadian Civil Liberties Association, and international human rights dialogues including submissions referencing the United Nations Human Rights Committee.

Facts and lower court proceedings

Applicants, including applicants known as Terri-Jean Bedford, along with co-applicants Amy Lebovitch and Valerie Scott, challenged three Criminal Code provisions: the bawdy-house prohibition, the living on the avails offence (s. 212(1)(j)), and the communication offence (s. 213(1)(c)). The applicants, represented by counsel experienced in constitutional law, argued that the statutes made sex work more dangerous by forcing workers to operate in isolated locations, avoid security measures, and restrict screening of clients. The Ontario Superior Court of Justice (per Justice Susan Himel) ruled in favour of the applicants, finding that the provisions violated section 7 of the Canadian Charter of Rights and Freedoms and were not saved under section 1. The Ontario Court of Appeal affirmed the Superior Court's decision in part but varied remedies, prompting an appeal to the Supreme Court of Canada by the Attorney General of Canada.

Issues and legal questions

The Supreme Court framed the appeal around whether the challenged Criminal Code provisions deprived applicants of life, liberty, or security of the person contrary to section 7 of the Canadian Charter of Rights and Freedoms, and if so, whether any deprivation was in accordance with the principles of fundamental justice. Secondary questions concerned whether any impairment could be justified under section 1 of the Canadian Charter of Rights and Freedoms and the appropriate remedy, including suspension of invalidity and the scope of relief given Parliament’s legislative role. Interveners included provincial Attorneys General, advocacy organizations such as the Canadian Association of Chiefs of Police, and feminist groups, all raising differing perspectives rooted in statutes, precedents like R. v. Morgentaler, and comparative approaches from jurisdictions such as the United Kingdom and New Zealand.

Supreme Court decision

In a unanimous decision, the Supreme Court allowed the appeal in part and declared the three provisions invalid for violating section 7 of the Canadian Charter of Rights and Freedoms. The Court held that the prohibitions increased the risk of physical and psychological harm to sex workers by preventing them from implementing safety measures, thereby infringing security of the person in a manner not in accordance with the principles of fundamental justice. The Court suspended the declaration of invalidity for one year to permit Parliament to enact new legislation; it declined to strike down additional Criminal Code provisions not before the Court. Remedial language invited legislative response while vindicating constitutional protections recognized in earlier rulings such as Carter v. Canada (Attorney General) and R. v. Malmo-Levine; R. v. Caine in their different contexts.

Reasoning and legal significance

The Court’s reasoning emphasized empirical evidence, expert testimony, and lived-experience affidavits demonstrating that the challenged provisions produced objectively verifiable harms. The decision applied section 7 principles concerning arbitrariness, overbreadth, and gross disproportionality, finding overbreadth where the impugned provisions captured conduct that was not connected to the legislative objective of reducing the social harms associated with prostitution. The judgment refined jurisprudence on when criminal laws that are protective in aim nonetheless violate the Canadian Charter of Rights and Freedoms by producing dangerous effects, linking to prior doctrines from cases such as R. v. Oakes (section 1 analysis context) and contributing to jurisprudential debates about judicial deference to legislative choices and evidence-based constitutional adjudication.

Aftermath and impact on law and policy

Following the decision, the Parliament of Canada enacted the Protection of Communities and Exploited Persons Act in 2014, reshaping the criminal framework for sex work by criminalizing purchase of sexual services and addressing advertising while aiming to protect vulnerable persons. The ruling influenced litigation, advocacy, policing practices in provinces such as Ontario and British Columbia, and international commentary on sex work regulation. Subsequent cases and academic commentary debated the decision’s role in reconciling autonomy, safety, and public morals, and its interaction with human rights instruments including submissions to the United Nations Committee on the Elimination of Discrimination against Women. The case remains central in Canadian constitutional law and criminal law discourse, cited in scholarship, policy reforms, and further litigation concerning the regulation of intimate conduct and public order.

Category:Supreme Court of Canada cases Category:Canadian constitutional law cases Category:2013 in Canadian case law