Canada v Bedford: Case Summary
Canada v Bedford is a recent Supreme Court of Canada decision about the constitutional validity of three provisions of the Canadian Criminal Code. The case was brought forward by three former prostitutes, who argued that ss. 210, 212(1)(j) and 213(1)(c) were unconstitutional and infringe s. 7 of the Canadian Charter of Rights and Freedoms by preventing sex workers from conducting their work safely. The impugned provisions, which were created to prevent public nuisance and to limit the exploitation of prostitutes, are summarized below:
Section 210 makes it an offence to be an inmate of a bawdy-house, to be found in a bawdy-house without lawful excuse, or to be an owner, landlord, lessor, tenant, or occupier of a place who knowingly permits it to be used as a bawdy house.
Section 212(1)(j) makes it an offence to live on the avails of another's prostitution.
Section 213(1)(c) makes it an offence to either stop or attempt to stop, or communicate or attempt to communicate with, someone in a public place for the purpose of engaging in prostitution or hiring a prostitute.
The court held that the three provisions of the Criminal Code infringe the s. 7 rights of sex workers in that they deprive them of the security of the person in a manner that is not in accordance with the principles of fundamental justice. In doing so they examined the provisions in relation to three principles: Arbitrariness (where there is no connection between the effect and the object of the law), overbreadth where the law goes too far and interferes with some conduct that bears no connection to its objective), and gross disproportionality (where the effect of the law is grossly disproportionate to the state’s objective).
s.210 – prohibition on bawdy-houses The court found that the s. 210’s impact on the s. 7 rights of sex workers was grossly disproportionate to its objective of preventing public nuisance. The provision imposed limits on sex workers to the extent that their health, lives, and safety were at risk.
s.212(1)(j) – prohibition on living off the avails of prostitution The court found that s. 212(1)(j)’s impact on the s. 7 rights of sex workers was overbroad in that it captured individuals such as drivers and security guards who would actually enhance the safety of sex workers.
s. 213(1)(c) – prohibition on communication in a public place The court found that s. 213(1)(c)’s impact of the s. 7 rights of sex workers was grossly disproportionate to the objective of preventing public nuisance, in that the provision greatly impacted a prostitute’s ability to implement safety screening of prospective clients.
S. 1 of 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”. The court held that the provisions were not saved by s.1 in light of their serious impact on the security of the person by inhibiting a sex worker’s ability to take adequate measures to protect herself. Consequentially, the Court held that the provisions should be struck down. The declaration of invalidity was suspended for one year at which point Parliament may choose, if it wishes, to implement new legislation.
Citation: Canada v Bedford  S.C.J. No. 72
Traditional Natural Law Theory
The focus of the traditional natural law theory is on distinguishing laws from “non-laws” by examining the source of the law and its necessary characteristics. According to this theory “true law” is ultimately derived from a higher power external to human beings. This higher power may be God, nature, or “reason” arising from the reasonable order of the universe. Under the natural law theory, if law is derived from a higher power it is morally right, and therefore human law must also be morally right as it is derived as such. Anything that is not in accordance with this higher moral power is not legitimate law. Therefore, natural law is universal and unchanging, however it may apply to differently in light of the variety of humans on earth.
St. Thomas Aquinas’ Natural Law
St. Thomas Aquinas was a leading proponent of the traditional natural law theory. Aquinas saw natural law as being ultimately derived from God. He reconciled human made law with this concept by arguing that natural law is a product of man’s reasoning as given to him from God. In other words, the human psyche acts as a vehicle for God’s law. A major focus of this type of law is that it reflects what Aquinas refers to as the “common good”.
The common good came from Aquinas’ belief that there are recognized morals that are fundamental to all people, or on a smaller level, the community. The main focus is on living in a harmonious society, and the maintenance of a stable environment. The common good is safe-guarded by setting out reasoned steps through law, and using threats, force, and punishment to enforce the law, should anyone stray. Finally, a valid law cannot be true law unless it conforms to four key elements:
- 1. The purpose of the law must be directed to the common good.
- 2. The law must follow practical reasonable steps to achieve its aim.
- 3. The law must be made by a valid lawmaker.
- 4. The law must be promulgated.
The four elements of a valid law ensure that the law is just and true. This is in line with Aquinas’ view that law is teleological, in that law’s function is the rational pursuit of the common good, and if the law does not achieve this, then it is not law at all and it need not be followed.
The existence of unjust laws is unlikely but possible, according to Aquinas. Any unjust law will cause disorder, and therefore declaring a law as unjust should be done carefully. This leads to the role of the legislature and judge made common law. Aquinas gives precedence to the legislature as lawmakers, as he sees them as the highest authority (after God). Judge made law is condoned only to the extent that it strikes down laws that are contrary to natural law principles. Otherwise, judges are expected to apply the law as it is written.
Thomas Aquinas's Natural Law Applied to Bedford
Examining the Bedford case through a Thomas Aquinas natural law lens requires us to first look at what the objective was behind the three impugned provisions of the Criminal Code that effectively govern how a prostitute conducts her trade. The case states that the objectives of the laws are to prevent public nuisance, and to limit the exploitation of prostitutes by others, such as pimps. These objectives could be seen as being in line with an Aquinas style “common good” in that they are aimed at maintaining a stable and harmonious society by limiting a profession that people may see as against “common morality”.
Upon examination of the three impugned provisions, one can see how Parliament has set out to achieve its objective of preventing the disturbance of what it perceives to be the “common good”. Parliament seeks to maintain a stable society by placing limits on the visibility and activities of prostitutes. Section 210 serves to combat neighbourhood disruption and disorder by preventing prostitutes to work inside bawdy-houses, or for anyone else to for that matter. Section 212 (1)(j) makes it a criminal offence to live off the avails of prostitutes, an attempt to achieve the common good to prevent the exploitation of sex workers by society’s parasites. Section 213(1)(c) furthers the first provisions’ common good by making it illegal to communicate in public, and thus protects societal stability and comfort.
As a part of the Criminal Code of Canada, it is not disputed that these provisions conform with steps three and four of Aquinas’ valid law requirements. It is upon examining them under steps one and two that one begins to see how they may not be in pursuance of the common good, nor follow reasonable steps to achieve their goals.
The plaintiff in Bedford challenged each of the impugned provisions as infringing upon a prostitute’s section 7 right to right to life, liberty and security of the person. According to the plaintiff, these provisions had the effect of making the job of a prostitute (a completely legal profession) dangerous and risky. Arguably the provisions were having a serious negative impact on prostitutes, which was disproportionate to the “common good” goal of maintaining societal stability.
This dissociation between what the provisions set out to do, and what their actual effect was, would cause (under an Aquinas point of view) a revaluation of what the common good of society really ought to be. The Canadian Charter of Rights and Freedoms did not exist for Thomas Aquinas, however it is the backbone of Canadian law today. In light of this, one could go as far to say that the Constitution, under which the Charter was created, is a reflection of the “common good” of Canadian society.
If we presume that the Constitution, and therefore the Charter, is the gold standard of the Canadian “common good” then it is clear that a law that violates this standard would not be in pursuance of the common good, and would be deemed void under Aquinas’ first requirement for a valid law. Another way to argue that such a provision ought to be void is that it fails to follow reasonable steps to achieve its goals. If the provisions set out to achieve a common good (maintaining societal stability), but fail to achieve it (in that the result was that immense harm was caused to prostitutes) then they would be void under the second Aquinas requirement.
The Court in Bedford concluded that the three provisions indeed violated the Section 7 rights of prostitutes, and could not be justified by Section 1 of the Charter. The provisions were overbroad, and grossly disproportionate to their original objectives, and had the detrimental affect of putting women who chose to pursue a legal profession in harm’s way.
The Court’s decision to strike down the provisions is very much in line with Aquinas’ opinion that if a law does not pursue the common good, then it is not valid law, and that judges are justified in striking it down as such. The Supreme Court’s decision can be seen as following Aquinas’ theory in that they suspended the invalidity of the provisions for one year, at which point Parliament may choose whether or not to implement new legislation. This action maintains the Aquinas notion that the legislators are in the best position to create law that conforms to the common good of society.
In conclusion, it is likely that although the modern day Canadian “common good” may look different from what Thomas Aquinas might have thought during his time, the court in Bedford could be perceived as following a natural law theory. The court achieves this by examining and denouncing laws that do not reflect the common good, and to return them to Parliament so that they may have a chance to reevaluate the common good of Canadians, and make laws that are in accordance with that good.
Legal Theories Applied