- 1 Canada v Bedford: Case Summary
- 2 Traditional Natural Law Theory
- 3 Legal Positivism
- 4 The Separation Thesis
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:
- The purpose of the law must be directed to the common good.
- The law must follow practical reasonable steps to achieve its aim.
- The law must be made by a valid lawmaker.
- 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.
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 positivism is a theory of law that was born in reaction to the natural law concept. Legal positivism focuses on law as a social fact, rather than coming from a source external to humans. In this way, the positivist response rejects the teleological idea of moral good and considers law as a matter of social convention. Under this model, morality is kept as separate and distinct from determining if a law is valid. Thus laws created by human beings are not necessarily fair laws, or rules that “ought” to be followed, they are simply valid because they are laws as issued by parliament (Brian Leiter, The Radicalism of Legal Positivism, pg. 3).
The main proponents of Legal Positivism are classical legal positivist John Austin and modern legal positivists, Jeremy Bentham, Joseph Raz and H.L.A. Hart.
Unlike Aquinas, who believes that society obeys the law because law is moral and obedience to law is morality, John Austin believes that there is a moral obligation to obey all valid law, whether or not those laws are themselves moral. Law is the standard of justice and law is separate from morality. This separation is termed the “separation thesis (discussed thoroughly in the next topic).
For Austin, valid law is a command, issued by superiors to subordinates, and backed by sanctions. As long as a law has these requirements and passes the “pedigree” test (being a law adopted in accordance with the system or rules in that legal jurisdiction), it is a positive, valid law. Thus, society needs to follow this law because it is valid and not because it is for the common good of humanity. In this way rules such as manners, customs or social norms not backed by the requirements of valid positive law are considered positive morality. Positive morality and positive law can be determined by empirical means, and both can direct human behavior in a way that is morally wrong or right. However positive morality is not properly law because they are rules not either set by political superiors to inferiors or not backed by sanctions.
In light of Austin’s “legislation-centric” (Lecture, Margaret Hall) viewpoint, the role of judges is limited. Judges are apart of the subordinate group and have been delegated power by the sovereign legislature to carry out the role prescribed to them. This role to Austin is limited and only for the purpose of interpreting and applying the commands issued by the sovereign. Further this delegation of power is justified because the Legislature retains the right to step in and overrule or minimize judicial power.
Legal Positivism Applied to Bedford
While Aquinas would first ask what greater good the provisions at issue in Bedford, are serving, Austin would respond that the search for this good is unnecessary because it does not add to make a law valid. Instead Austin would find that ss. 210, 212 (1)(j), and 213(1)(c) are all valid laws because they are commands issued by Parliament (Sovereign) to the citizens of Canada (Subordinates) and backed by the threat of imprisonment (legal sanctions).
When analyzing the laws the Supreme Court judges did not stop at finding that the laws were valid because they met the pedigree test. Instead they further analyzed the provisions based on their constitutionality and on the arbitrary, overbroad or disproportionate effects. Austin would find this constitutional analysis as a use of positive morality. In Austin’s view constitutional principles are not real law, mainly because in England the Constitution is not a set of written principles, and thus are just rules that have an effect on how people behave. However in Canada the Constitution is a written document of principles, which is held to be the supreme law of Canada (s. 52(1) Constitution Act 1982). Thus, in Bedford the principles of the Constitution (s.7 and s.1 of the Charter and Rights of Freedoms) are not used merely as rules that govern social norms, instead they are being used to make sure that the laws issued by Parliament are valid and legitimate laws. Austin would disagree with this use of the Constitution, because Parliament, who is the main issuer of commands, is now being held as a subordinate to Constitutional Supremacy. According to Austin, the sovereign power issuing the command cannot be bound by law which also makes them a subordinate. Austin may be able to reconcile this idea of Parliament being bound by the Constitution by looking to s.33 of the Charter, which allows Parliament to hold a law valid notwithstanding the finding of its violation of the principles of the Constitution and thus allowing Parliament to retain their superior position within the legal system.
Role of the Judiciary
In Bedford the ruling by the Supreme Court to find that the laws were invalid because they violated s.7 of the Canadian Charter of Rights and Freedoms and were not justified under s.1 of the Charter, would be seen by Austin as the judges interpreting commands issued by the Sovereign. This interpretation is within the power delegated to the judiciary by the Sovereign. The ultimate decision of the court to send the provisions back to parliament (Bedford para 165) to reissue is the ideal role of Judges in Austin’s view. This is mainly because the Judges did not apply the common law and read in new commands, and so they acted in accordance with Austin’s view that the ultimate power of law making is vested with Parliament.
Modern Legal Positivist: Jeremy Bentham & Joseph Raz
Jeremy Bentham similarly to Austin, views law as a man-made artifact separate from morality. However as he debases law from morality, he believes that law should be based on utilitarianism. And so the validity of law depends upon whether or not it maximizes utility. The question asked is whether a law results in the greatest good for the greatest number of people. Bentham’s idea of utility is not very different from Thomas Aquinas’ idea of common good. Both theorists are interested in good for the majority even if it departs from good for the individual. However where Aquinas and Bentham differ is that Aquinas still believes that the common good is in the best interests of everyone even if the individual does not see it as such. Bentham’s view of utilitarianism differs in respect that a law may not serve the best interest of an individual, however it does not matter as long as the majority is happy.
- Jeremy Bentham's Take on Bedford
- Bentham would argue that the provisions at issue would pass the social utilitarian aim because parliaments purpose in enacting them was to decrease negative aspects of prostitution for the greater good of societies norms and values. The Attorneys General of Canada and Ontario say that purpose of s. 210 and s. 213(1)(c) is to decrease public nuisance (Bedford para 130, 146) while the purpose of s. 212(1)(j) is to decrease the commercialization of prostitution in order to maintain the values of dignity and equality in society (Bedford para 138). While the Supreme Court reasons that all three provisions infringe on the life, liberty and security of prostitutes, Bentham would argue that these reasons should not justify holding the provisions as invalid. Prostitutes make up “the few”, and so the laws need not maximize happiness for them as long as the rules maximize happiness for the majority.
Joseph Raz views the validity of law through a “service conception” model. Raz believes that law claims authority and tells subjects what they must do. This claim is not a discussion about whether the reasons underlying the law are reasonable or just. Instead Raz purports that law tells citizens what must be done. However, these claims of authority are only justified if the law commands its citizens to do what is morally right to do. Further, if these commands were not followed it must be true that citizens would be worse off. This idea is essentially the “Service Conception” of Authority, where a law is morally justified when the authority performs a service for its citizens, and that service is a law which helps citizens act better than they would without authority’s intervention (Brian Leiter, The Radicalism of Legal Positivism, pg. 6). When these laws do not serve its subjects, that's when disobedience of the law are justified. This theory is similar to Bentham’s theory because both consider effects on the subjects. It is also similar to Aquinas’ theory that seeks to enable people to behave better so as to achieve the common good. However, unlike Aquinas’ and Austin’s theory, the validity of law is not dependent on the lawmaker who issued it.
- Joseph Raz's Take on Bedford
- If the provisions in Bedford were not in place it would allow for prostitution to take place more frequently and consequently allow for vulnerable women to fall into the profession easily. This would leave women worse off then if the provisions were in place.
- However, the Supreme Court reasons that women would be worse off if the provisions are left in place. The court uses a Razian “Service Conception” of Authority reasoning, where they argue that “laws run afoul of our basic values” when the means by which the state uses to attain its goal is arbitrary, overbroad or has effects that are disproportionate to the goals of the provision (Bedford para 105). The court finds that the provisions actually perpetuate danger and violence against prostitutes; contrary to the “service” the provisions were set out to do (Bedford para 162). Thus, the laws are not justified and are not to be followed since they do not leave citizens in the profession of prostitution better off.
The Separation Thesis
HLA Hart and the Separation Thesis
As a modern legal positivist, Hart built on and adapted Austin’s theories. Hart firmly agreed with the position that law and morality were separate. Hart actually viewed this as beneficial because when separated from morality, laws can be evaluated by society with reference to moral rules. An individual can then weigh a legal rule against a moral rule and determine whether there is a greater obligation to follow the legal or moral rule. Hart focused on the importance of laws being created by our legal system and legislatures as having the “quality of lawness” and that laws are rules that we as members of society ought to follow. One of the essential concepts of Hart’s theory is the “Rule of recognition” which assumes societal acceptance as well as belief in following the law.
According to Hart, the primary role of Judges is to apply the rules established through either legislation or the common law. As legal rules are expressed in general terms, the majority of cases will fall within a “settled core of meaning” that judges will be able to apply. Hart would say that when a case falls outside of the settled core of meaning is it in “grey” area called the penumbra. In these cases, Judges use the “rule-governed practice” such as the principles of justice, impartiality and objectivity to guide their decisions.
Fuller provides a strong response to Hart’s theory. Fuller makes the points that law itself has an inner morality, and it is this inner morality which causes society to accept laws as valid. When Hart refers to judges following the rule governed practice in cases that fall within the penumbra, Fuller suggests that what judges are actually doing is giving effect to the internal morality of the law. Fuller would also say that there is a purpose and reason for consistency in the law beyond just following the “rules of the game”. He believes that laws function as part of a coherent system and are more than just commands, and the internal morality is a key element of what makes the system coherent and consistent. One example that Fuller used to explain that laws could not be acceptable without the element of inner morality was that under Hart’s theory the laws in Nazi Germany would be acceptable because they were created following all of the guidelines of the “rule of recognition”. Fuller would explain that the reason that the laws of Nazi Germany could not be justified is because they did not contain the inherent morality which he describes as so essential. Finally, Fuller uses the example of “King Rex” to illustrate the ways in which laws may be issued by a superior ineffectively. These include laws being ad-hoc, incoherent, contradictory, impossible to obey, retroactive, unknowable by members of society, or frequently changing.
Hart, Fuller and Canada v Bedford
On Hart’s theory, Canada v Bedford is a case that falls within the Penumbra. It is not easily settled as there are conflicting rights and interests that are being balanced against one another. Being in the penumbra, Hart would say that the Judges involved were obligated to then follow the “Rule governed practice” in making the decision. The judges in fact did exactly this. The Court struck down the “immoral” provisions of the Criminal Code using section 7 of the Canadian Charter of Rights and Freedoms. Section 7 reads:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Within Hart’s concept of the rule-governed practice, principles such as the principles of fundamental justice are exactly what should guide judges in their decisions, By using Section 7, and subsequently section 1 to guide their decision, the Supreme Court of Canada is operating to make their decision based within the “Rule-governed practice” which is exactly what Hart would argue that they should do.
Fuller would add a number of elements to the analysis. For example, he would likely point out that there is an inner morality in each of the provisions of the Charter. He would suggest that this inner morality plays an essential role is swaying the Court towards it’s decision. Fuller would also support the court in challenging the provisions of the Criminal Code. These provisions would not be seen as being consistent or rational as a law should. For example, the provisions, which were intended to regulate prostitution and the manner in which it could be carried out, have actually had the effect of making it less safe for those working as sex-trade workers. There is an inherent flaw in allowing laws to stand which violate “security of the person”. Under Fuller’s analysis this flaw would be that the provisions do not have a consistent inner morality, and this is why court has recognized that the provisions should not continue to be recognized as valid law. This also can be seen in the analysis of the Court under section 1 of the Charter where the law is found to be unjustified as it is not minimally impairing, particularly because of the potential impact on those not directly in the sex-trade industry.
Fuller might also say that some of the provisions for sex trade workers would also fall into the “King Rex” traps of being both contradictory and impossible to obey. For example, the provision prohibiting communication actually had the effect of creating an increase in harm for sex-trade workers by being unable to screen potential clients. It would be impossible then for a sex-trade worker to obey the provision without creating an increased risk of harm.
To summarize, under the theories of both Hart and Fuller, the decision of the Court in Canada v Bedford would be seen as correct. The decision falls within the scope of both theories, and it is interesting to note that both theories would likely have come to the same conclusion as the court in this case. The theories do however offer quite a different in analysis in terms of how the way in which they would arrive at the decision.
Legal Theories Applied