The Health and Safety of Sex Workers Motivates the SCC to Strike Down Sex Work Related Criminal Code Provisions in Canada (Attorney General) v Bedford

Posted By Lauren Hanon

Exchanging sex for money in Canada is not illegal. This is the very first statement made by Chief Justice McLachlin in Canada (Attorney General) v Bedford. What makes sex work effectively criminalized are the provisions in the Criminal Code, which render the activities surrounding sex work illegal. These provisions were constitutionally challenged in Bedford.

In 2013, the SCC struck down three sections in the Criminal Code as being unconstitutional. These provisions were said to have violated the rights of sex workers under section 7 of the Canadian Charter of Rights and Freedoms, which protects “the right to life, liberty and security of the person”. The sections of the Criminal Code that were struck down were s. 210 (keeping, or begin found in a bawdy house), s. 212(1)(j) (living on the avails of prostitution), and s. 213(1)(c) (communicating in public for the purpose of prostitution). The Chief Justice asserted that while the government has the right to regulate prostitution, a completely legal activity, the aforementioned provisions create extremely dangerous conditions for sex workers by limiting their ability to reduce risk and take precautionary measures to better protect themselves (para 60).

Section 210 of the Criminal Code

Section 210 makes it illegal to live in, enter into, or occupy a bawdy-house. As a result, lawful prostitution is confined to two categories: street prostitution and “out-calls” (where the sex worker and the client meet at a designated location). “In-calls” (where the client comes to the sex worker’s place of residence) are prohibited by section 210, seeing as the residence would be considered a place resorted to for the purpose of prostitution.

The court found that, on a balance of probabilities, in-calls is the safest form of prostitution. Therefore, by prohibiting in-calls under section 210 of the Criminal Code, sex workers have no ability to implement their own security measures, like receptionists or security guards, and it “interferes with provisions of health checks and preventative health measures” (para 64). This section forces sex workers into more dangerous situations, thus violating their right to security of the person under section 7 of the Charter.

Section 212(1)(j) of the Criminal Code

Section 212(1)(j) criminalizes living on the avails of prostitution of another, in whole or in part. This provision targets exploitative and parasitic relationships, like where a sex worker works for a brothel-keeper. In effect, however, it prevents sex workers from hiring people like bodyguards, receptionists, drivers, and other positions that would greatly reduce risks of client violence. This provision again increases the danger to sex workers and violates their right to security of the person.

Section 213(1)(c) of the Criminal Code

Finally, section 213(1)(c) prohibits any form or attempt of communication for the purposes of exchanging money for sex in a public space, or a place open to public view. Face to face communication is an essential tool for reducing the risks of street prostitution. Prohibiting sex workers from using this tool prevents them from screening prospective clients and engaging in any discussion about the terms of the work, such as condom use. This provision also has the adverse effect of displacing sex workers from known locations where they can implement safety precautions. Being forced to communicate in non-public spaces and spaces that are not open to public view increases the risk of dangers, such as assault. By greatly limiting the safety measures available to sex workers, this provision also violates their right to security of the person.

Conclusion

The SCC declared these provision invalid, although their invalidity was suspended for one year in order to give the government time to respond with new legislation. This new legislation took the form of Bill C-36, which received Royal Assent on November 6th, 2014.

Bill C-36 – or An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts – has been in effect for almost a year now. The changes made to the Criminal Code through Bill C-36 arguably endanger sex workers more than the previous provisions that were struck down. Pivot Legal Society has claimed that they are prepared to go to court again on the grounds that the new legislation is also unconstitutional if our new Liberal government does not repeal it as soon as possible. It seems as though the Bedford decision is only the beginning of legal changes to come for the health and safety of sex workers in Canada. It will be interesting to see what decisions our Liberal government will make in the near future!

The SCC Revisits the Right to Die in Carter v Canada (Attorney General)

Posted By Sabrina Mach

Twenty-one years after upholding a criminal prohibition on physician-assisted suicide (Rodriguez 1993), the Supreme Court of Canada must once again consider the constitutionality of s. 241(b) of the Criminal Code in Carter v Canada (Attorney General). Under s. 241(b), anyone that “aids or abets a person to commit suicide” is guilty of an indictable offence and liable to imprisonment for up to fourteen years. Lee Carter and Gloria Taylor joined with others in bringing this claim challenging the constitutionality of s. 241(b) of the Criminal Code, as well as ss. 14, 21, 22, 222, and 241(a), which collectively, with s. 241(b), prohibit physician-assisted suicide in Canada. Ms. Carter’s mother and Ms. Taylor both suffered from intractable and degenerative diseases.

The Supreme Court heard the Carter case on October 15th, 2014. An overview of the main points in the lower court decisions indicates that the Supreme Court’s decision could radically change the state of assisted suicide in Canada.

Trial Court Decision

The main hurdle for Justice Smith was to assess whether or not Rodriguez was binding precedent. In Rodriguez, the Supreme Court held that s. 241(b) was constitutional because it complied with s. 7 and s. 15 of the Charter. If Rodriguez were binding, then the civil claim would fail. However, Justice Smith found that the emergence of different social facts and legal principles since the 1993 decision allowed her to re-evaluate the constitutionality of s. 241(b). She noted that the right to “life” in s. 7 was not considered in Rodriguez. Neither were the principles of fundamental justice of overbreadth and gross disproportionality. Additionally, Justice Smith found that a violation of s.15, the equality provision, was never properly found in Rodriguez; rather, it was simply assumed to have occurred and was then justified under s. 1.

With respect to s. 7 of the Charter, Justice Smith held that the right to life was engaged because the prohibition had the effect of causing some people to end their lives sooner than they would have if physician-assisted suicide were available. With respect to s. 15, Justice Smith found that the impugned provisions created a distinction on the basis of physical disability. It did so by denying physically disabled individuals access to physician-assisted suicide, which was necessary for them to commit suicide, while able-bodied individuals had no legal restrictions to committing suicide. These violations could not be saved by s. 1. The trial judge declared impugned provisions to be of no force or effect due to their violations of ss. 7 and 15 of the Charter. The declarations of constitutional invalidity were suspended for one year to allow Parliament sufficient time to draft and consider new legislation.

With regards to the risks of physician-assisted suicide, Justice Smith suggested that sufficient safeguards could be put into place, such as employing properly qualified and experienced physicians to assess the competence of patients seeking physician-assisted death, identifying inappropriate influences on the patient’s decision, as well as assessing informed consent.

Court of Appeal

The majority found that the trial judge was bound by stare decisis to apply Rodriguez. Consequently, for the most part of the judgment, the court reaffirmed the findings established in Rodriguez.

With respect to s. 7, the court held that “life” was already considered in Rodriguez in relation to liberty and security of the person. The ability to make personal decisions regarding one’s body fell under “security of the person”, which made it unnecessary for Justice Smith to consider the right to “life” under s. 7. As for s. 15, they accepted Justice Smith’s finding of a violation, but concluded that it was justified under s. 1 of the Charter. The Court applied the same s. 1 analysis as in Rodriguez, emphasizing that s. 241(b) clearly had a pressing and substantial legislative objective grounded in the need to protect human life, and that it was rationally connected to its purpose. Thus, the provision is constitutionally valid.

Although the Court of Appeal upheld the prohibition, they did suggest that the legislature should consider adding a constitutional exemption where warranted. This exemption might be in favour of “those who are clear-minded, supported in their life expectancy by medical opinion, rational and without outside influence, and protected by a court process” (para 333).

Supreme Court of Canada hearing

The Supreme Court has yet to release its own decision regarding the constitutionality of s. 241(b) and the other impugned provisions. Nevertheless, following the hearing on October 15th, many media sources have already commented on the direction the court will take:

“Government’s stance on assisted-suicide runs into skepticism from Supreme Court” (Sean Fine, Globe and Mail)

“A tough day at the Supreme Court for supporters of a ban on assisted suicide” (Emmett Macfarlane, Maclean’s)

The Supreme Court has a big decision ahead of it – to follow Rodriguez or distinguish from it. Earlier this year, Quebec became the first province to legalize physician-assisted suicide by passing Bill 52, An Act respecting end-of-life care. With the changing political and social climate regarding assisted suicide in Canada, the Supreme Court has a lot to consider. The Harper government may have to brace itself for another tough loss at the Supreme Court.

What R v Hutchinson means for consent: an examination of the majority and minority opinions

Posted By Katarina Daniels

On Friday, March 7th, 2014, the Supreme Court of Canada unanimously dismissed Craig Hutchinson’s appeal, holding that Hutchinson did in fact sexually assault his partner when he decided to poke holes in his condoms in order to get his partner pregnant. Immediately, the media responded. Headlines included:

“Supreme Court upholds sexual assault conviction in condom sabotage case” (Mike Blanchfield, The Canadian Press, in the Montreal Gazette)

“Condom Piercer Faces Jail For Sexual Assault” (Sky News)

“Condom case reaffirms the ability to make meaningful choices” (Angela Campbell, The Globe and Mail)

Very few news outlets, however, noted the serious distinction between the majority and minority opinions in how they understand consent. How far does consent reach in the context of sexual relations? Does “voluntary agreement… to… the sexual activity in question” only include the specific physical act or does it extend to how the intercourse takes place? Specific to this case: is sexual intercourse with a condom and without one the same “sexual activity”?

The majority opinion: the sexual activity in question was sexual intercourse

The majority of the Court, led by the Chief Justice and Cromwell J, limited s.273.1(1) of the Criminal Code’s definition of “the sexual activity in question” in consent to the physical act, the sexual nature of the activity, and the identity of the partner. According to the majority, the physical act does not include “conditions or qualities of the physical act” (para 55) but only the “specific physical act,” which includes: “kissing, petting, oral sex, intercourse, or the use of sex toys,” for example (para 54, emphasis in the original).

For its part, this limited definition suggests that, for the purposes of defining the “physical act”, sex without a condom is no different than sex with a condom. The majority makes clear that consent to sexual intercourse, at this first stage of the consent analysis, is consent to any action falling “somewhere within the generic category of what the complainant agreed to” (as described by Abella and Moldaver JJ, para 87). By using this narrow definition of “physical act”, the majority is able to find consent at the first stage of the analysis. A finding of consent, even initially, where the plaintiff insists that there was none, in fact contradicts the headline of Professor Campbell’s article in The Globe and Mail, which reads: “Condom case reaffirms the ability to make meaningful choices”.

Apparently unperturbed by the irony of telling a woman that she has consented to something she argues she has not, the majority moves on to the second stage of the consent analysis – reasons to vitiate consent. Under s.265(3) of the Criminal Code, consent may be vitiated through a number of conditions, including fraud (s.265(3)(c)). Under the test set forth by the Supreme Court of Canada in Cuerrier, a finding of fraud requires: 1) a dishonest act, and 2) that the dishonest act had “the effect of exposing the person consenting to a significant risk of serious bodily harm” (Cuerrier,para 128).

The problem here is that using this line of reasoning creates of a “problematic analogy” between pregnancy and bodily harm. The majority awkwardly holds that harm “includes at least the sorts of profound changes in a woman’s body… resulting from pregnancy” (para 70). The majority must make this uncomfortable statement in order to find fraud, which in turn allows the majority to hold that consent has been vitiated per s.265(3)(c) of the Criminal Code. As a result, Mr. Hutchinson was found guilty of sexual assault under s.265(1) of the Criminal Code.

The minority opinion: the sexual activity in question was sexual intercourse with a condom

In contrast to the majority opinion, the minority opinion, led by Abella and Moldaver JJ, defines the sexual activity in question as sexual intercourse with a condom, as opposed to simply sexual intercourse. Because of this framing, they could find an absence of consent under s.273(1) without relying on fraud and the Cuerrier test, thus coming to the same result as the majority.

Abella and Moldaver JJ rely heavily on R v Ewanchuk, a seminal case outlining the framework for sexual assault findings. In particular, they rely on the following passage: “Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one’s body, and how, lies at the core of human dignity and autonomy” (Ewanchuk, para 28).

The minority pounces on the latter element of “how” to justify their definition of “sexual activity” under s.273.1(1). For the minority, this inclusion of the term “how” in Ewanchuk implies that “sexual activity” at s.273.1(1) must be broader than the “specific physical act” and must include the way in which that activity is carried out – in this case, with or without a condom. To hold otherwise would be “[to extinguish] the right of a person to decide whether to give or withhold consent to the sexual activity” (para 86), undermining Ewanchuk’s most basic principles.

Following Ewanchuk, Abella and Moldaver JJ propose a two-part test to analyse consent under the actus reus of sexual assault:

“Under s.273.1(1), has the complainant consented to the identity of her sexual partner, the sexual nature of the touching, and the manner in which the sexual touching was carried out?

If so, are there any circumstances that vitiate the complainant’s consent under s.265(3)?” (para 92)

While the majority suggests that the “how” may be too confusing for judges to apply, resulting in over-criminalization, the minority notes that their approach is the only one that truly gives meaning to the term “consent”. According to the minority, the majority approach would deny individuals who do not risk pregnancy the legal right to demand the use of a condom during sexual intercourse, so long as they agreed to the general activity of sexual intercourse.[1] This is because the majority proposes no other new “harm” under the fraud requirement aside from the “harm” of pregnancy. Per Cuerrier, without serious bodily harm, there can be no fraud.

Concluding thoughts

“All individuals must have an equal right to determine how they are touched, regardless of gender, sexual orientation, reproductive capacity, or the type of sexual activity they choose to engage in” (Abella and Moldaver JJ, para 98).

The majority decision – that is, the ruling decision in this case, the current state of the law – seems to hold otherwise. In relying on vitiation of consent, the majority limits an individual’s right to make meaningful choices for him or herself. This sets a dangerous precedent, and also creates confusion for lower courts in identifying harm under the fraud principle. Media attention must be brought to the actual reasoning of the case, instead of simply the result, as it is the reasoning that will be applied to future cases and continue to shape the laws of consent in Canada.

Note: This blog post does not necessarily reflect the attitudes or opinions of the McGill Journal of Law and Health.

[1] Unless there are concerns about infectious diseases or other legally recognized concerns.

Litigating for health care reform in Canada: How new legal challenges aim to extend Chaoulli’s scope // Speaker bio: Antonia Maioni

Posted By Rosel Kim – Feb. 20, 2014
On February 22nd, 2014, the McGill Journal of Law and Health’s annual colloquium will be revisiting the divisive Chaoulli decision and analyzing the impact it has had nine years after its release.  The colloquium, “Litigating for health care reform in Canada: How new legal challenges aim to extend Chaoulli’s scope” will examine legal decisions from Alberta and British Columbia that indicate Chaoulli’s influence is spreading to other provinces. Here is the biography of one of our speakers, Antonia Maioni.
Antonia Maioni is Director of the Institute for the Study of Canada at McGill University, where she also holds the positions of Associate Professor of Political Science and William Dawson Scholar. She studied at St. Mary’s University and Université Laval, and earned an M.A. from Carleton University’s Norman Paterson School of International Affairs and a Ph.D. in political science from Northwestern University. She has taught at the University of Ottawa, and has held visiting appointments at Columbia’s Mailman School of Public Health, Harvard’s Center for European Studies, the North American Studies Program at Duke University, and the Robert Schuman Centre of the European University Institute.
Professor Maioni has published widely in the fields of Canadian and comparative politics, with a particular focus on public policy. Her most recent research projects were funded by the Social Sciences and Humanities Research Council of Canada, the Canadian Institutes for Health Research, and the Max Bell Foundation. She currently teaches in the Department of Political Science and Canadian Studies at McGill University, and is a member of the International Masters in Health Leadership team in the Desautels Faculty of Management.
A frequent media commentator on Canadian and Quebec politics and public policy,in both English and French, Professor Maioni has been a political analyst with CTV News since 2008. She was named CIBC Scholar- in-Residence for the Conference Board of Canada and McGill’s Top Newsmaker in 2006. She is a mentor in the Action Canada program for young leaders, the Sauvé Scholars and the Canadian Merit Scholars programs. She sits on the boards of the McCord Museum of Canadian History, the Sacred Heart School of Montreal and the Canadian Health Services Research Foundation, and is a former member of the Institute for Research on Public Policy and the Management Board of the Banff Forum.

Litigating for health care reform in Canada: How new legal challenges aim to extend Chaoulli’s scope // Speaker bio: Alana Klein

Posted By Rosel Kim – Feb. 19, 2014
On February 22nd, 2014, the McGill Journal of Law and Health’s annual colloquium will be revisiting the divisive Chaoulli decision and analyzing the impact it has had nine years after its release.  The colloquium, “Litigating for health care reform in Canada: How new legal challenges aim to extend Chaoulli’s scope” will examine legal decisions from Alberta and British Columbia that indicate Chaoulli’s influence is spreading to other provinces. Here is the biography of one of our speakers, Alana Klein.


Assistant Professor Alana Klein teaches and researches in health law, criminal law, and human rights. The position of marginalized groups and individuals in decentralized and privatized systems and the role of accountability requirements in governance and decision-making are primary preoccupations in her research.
Prior to joining the Faculty, she was a senior policy analyst with the Canadian HIV/AIDS Legal Network, where she worked on HIV/AIDS and immigration, legal and other barriers to harm-reduction programs for people who use illegal drugs, and law reform to promote the rights of women and girls in the context of HIV/AIDS in sub-Saharan Africa.

She has taught at Columbia Law School and Columbia University and has interned with the International Refugee Program at the Lawyers Committee for Human Rights (now Human Rights First) and with the Palestinian Ministry of Economy and Trade. In 2002-2003, she was a law clerk to former Supreme Court of Canada justice Louise Arbour and she was appointed to the Ontario Human Rights Commission in 2006.

Education

J.S.D. (Columbia) 2011
LL.M. (Columbia) 2005
B.C.L., LL.B. (McGill) 2002
B.A. (Concordia) 1997

Employment

Assistant professor, McGill University, Faculty of Law (2008- )
Boulton Fellow, McGill University, Faculty of Law (2007-2008)
Senior Policy Analyst, Canadian HIV/AIDS Legal Network (2006-2007)
Associate in Law, Columbia Law School (2003-2005)
Law clerk to Hon. Louise Arbour, Supreme Court of Canada (2002-2003)
Member of the Law Society of Upper Canada

Areas of Interest

Canadian and comparative constitutional law, human rights law, international law, criminal law

Publications

Journal articles

A. Klein, “Criminal Law, Public Health, and Governance of HIV Exposure and Transmission” (2009) 13 Int’l J. Hum. Rts. 251.

A. Klein, “Gladue in Quebec” (2009) 54 Crim. L. Q. 506.

A. Klein, “Judging as Nudging: New Governance Approaches for the Enforcement of Constitutional Social and Economic Rights” (2008) 39 Colum. Hum. Rts. L. Rev. 351.

Research reports

A. Klein, Sticking Points: Barriers to Access to Needle and Syringe Programs in Canada. (Toronto: Canadian HIV/AIDS Legal Network, 2007).

A. Klein, Immigration and HIV/AIDS: Final Report. (Montreal: Canadian HIV/AIDS Legal Network, 2001).