Canadian Lawyer

16 M a r c h 2 0 1 4 w w w . C A N A D I A N L a w y e r m a g . c o m by PhiliP Slayton top Court talEs dushaN Milic Unintended consequences Sending it back to Parliament to amend the prostitution laws may end up backfiring on the SCC, leaving a legislative black hole as happened with abortion laws. T he Supreme Court of Can- ada's decision in Canada (Attorney General) v. Bed- ford arrived just in time for Christmas. Better than a lump of coal in your stocking! You probably remember Terri-Jean Bedford. She is the professional dominatrix who said the best years of her life were spent tying up and spanking male clients in her north Toronto bondage bungalow. e Bedford decision captures the ex- cruciating paradox of the post-Charter of Rights justice system. On the one hand, the judiciary, empowered by the Charter, is all that stands between us and an all-powerful executive branch that can easily go rogue. On the other hand, as Bedford demon- strates, the judiciary has invaded the legis- lative realm, with important political and policy questions now routinely reclassified as legal problems and decided by unelect- ed judges. is reclassification is a bit like your doctor ordering blood tests when you complain of existential angst. A refresher. In 2009, Bedford and two other sex workers applied to the Ontario Superior Court for a declaration that pro- visions of the Criminal Code limiting sex workers' ability to protect themselves were contrary to s. 7 of the Charter of Rights and Freedoms. Section 7, you re- call, guarantees a person's right to liberty and security. e criminal law provisions challenged by Bedford and her colleagues made it illegal to run a bawdy house, communicate for the purposes of prosti- tution, and live off the avails of prostitu- tion. ese provisions, Bedford argued, increased the risk of violence to pros- titutes. ey drove prostitutes onto the streets and denied them the protection of a manager, bodyguard, or chauffeur mak- ing their trade much more dangerous. ey were, therefore, contrary to s. 7. Exhaustive evidence was given at trial. e evidentiary record consisted of more than 25,000 pages in 88 volumes, and in- cluded a lot of social science studies and reports. You need that kind of stuff if you're wrestling with a policy problem. Ontario Superior Court Justice Susan Himel was convinced by the able arguments of Bed- ford's counsel. She struck down the im- pugned Criminal Code provisions. On appeal, the Ontario Court of Ap- peal mostly agreed with Himel, although it held the Criminal Code provisions about communicating for the purposes of pros- titution were not unconstitutional. e Su- preme Court, in a unanimous, strong, and clear judgment delivered by Chief Justice Beverley McLachlin, found all the disputed Criminal Code provisions, including those about communicating for the purposes of prostitution, were inconsistent with the Charter and therefore invalid. e Supreme Court suspended the declaration of invalidity for one year, giv- ing the nod to the legislative branch, "re- turning the question of how to deal with

• Cover