The Respondents, a group of prostitutes and former prostitutes, argued that a number of Criminal Code provisions prohibiting expression and commercial activities relating to prostitution were in breach of Sections 7 and 2(b) of the Charter of Rights and Freedoms:
 Here, the applicants argue that the prohibitions on bawdy-houses, living on the avails of prostitution, and communicating in public for the purposes of prostitution, heighten the risks they face in prostitution — itself a legal activity…
Although the legislation in question had previously been declared constitutional in the Prostitution Reference, the Respondents argued that Canadian constitutional jurisprudence, as well as the social and political context surrounding prostitution, had evolved since the time of that decision. A Justice of the Ontario Superior Court of Justice agreed with these arguments and found the prohibitions on communication for the purpose of prostitution, living off the avails of prostitution, and keeping a common bawdy house, to be unconstitutional. The Supreme Court of Canada declined to interfere with the application judge’s findings of fact, noting that “The standard of review for findings of fact — whether adjudicative, social, or legislative — remains palpable and overriding error.”
In regard to the prohibition on common bawdy houses and living off the avails, the Supreme Court noted that “the prohibition prevents prostitutes from working in a fixed indoor location, which would be safer than working on the streets or meeting clients at different locations,” and further that “hiring drivers, receptionists, and bodyguards, could increase prostitutes’ safety.” On this basis, the criminal laws in question were found to engage security of the person concerns.
Communication for the purpose of prostitution, meanwhile, “allows prostitutes to screen prospective clients for intoxication or propensity to violence, which can reduce the risks they face.” On this basis, the prohibition on such communication gives rise to security of the person concerns within the meaning of Section 7 of the Charter.
The Supreme Court ultimately concluded that the legislation in question was grossly disproportionate to the harms it aimed to avert. “Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes,” the Court opined, later stating that: “If screening could have prevented one woman from jumping into Robert Pickton’s car, the severity of the harmful effects is established.”
On this basis, the Supreme Court found the criminal provisions surrounding prostitution to be in breach of Section 7 of the Charter of Rights and Freedoms, but suspended the declaration of invalidity for one year, so as to allow Parliament an opportunity to regulate the area in a manner consistent with the constitution.
In view of the conclusion under Section 7 of the Charter, the Court found that the Section 2(b) (freedom of expression) issue was not necessary to consider.
Decided by the Supreme Court of Canada on December 20, 2013.
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