TORONTO, ON March 26, 2012 – Today the Court of Appeal for Ontario released its decision in Bedford v. Canada (Attorney General), an appeal of the 2010 Ontario Superior Court decision that declared that the three provisions in the federal Criminal Code that regulate prostitution are unconstitutional. In today’s decision the appeal court maintained that public solicitation would remain illegal but also found that keeping a common bawdy house and (with a modest amendment) living off the avails of prostitution could be struck from the Criminal Code.

The Catholic Civil Rights League, which intervened in the case at both the Superior Court and Appeal level, is disappointed with much of the ruling and has these comments:

“We are pleased that the prohibition on communicating in public for the purposes of prostitution will remain in force, and that the justices cited dangers to the community, particularly to women and children, nuisance and other invasive factors, as justification for this law,” said League Executive Director Joanne McGarry. “But it remains our opinion that the prohibition on keeping a bawdy house and living on the avails are of some assistance in preventing the exploitation of a vulnerable population. All three provisions, as we stated in our affidavit, are in keeping with the moral values of the majority of Canadians.

“The appeal court is correct in noting that Parliament is free to propose a new, more Charter-complaint law to address prostitution, including the possibility of addressing the exploitation inherent in this trade by pursuing clients. We urge the Minister of Justice to explore these options. An appeal to the Supreme Court of Canada is called for to maintain the existing Criminal Code provisions while an ongoing analysis can be pursued.”

The League filed its intervention jointly with Christian Legal Fellowship and REAL Women of Canada. This group was the only non-governmental intervenor at the Ontario Superior Court level. More intervenors joined at the appeal level, but our position remained the only one to rely strongly on moral and non-sectarian religious arguments.

The appeal court found that Sections 210 and 212 (1) (j) are unconstitutional. Section 210 prohibits the operation of a common bawdy house for the purpose of prostitution, while 212 (1) (j) prohibits living on the avails of prostitution. In the former case, the court struck “prostitution” from the definition of “common bawdy-house” and suspended its decision for twelve months to give Parliament opportunity to draft a new “Charter-compliant” bawdy-house provision. For the living on the avails provision, the court stated that a provision should be read in to the law so that the prohibition applies only to those who live on the avails “in circumstances of exploitation.” This provision takes effect in 30 days.

The prohibition on communicating for the purpose of prostitution was upheld, noting that the provision does not offend the principles of fundamental justice, and that its value to communities outweighs any negative impact on prostitutes and their customers. There was a dissenting opinion, by Justices MacPherson and Cronk that, among other things, the provision limits prostitutes’ ability to protect themselves and therefore should be struck.

The decision of the Ontario Court of Appeal, May 26, 2012
Prostitution decision sends wrong signal, says League, CCRL press releases, Sept. 28, 2010