The Safe Haven Initiative

Les Demoiselles d’Avignon painted by Pablo Picasso (1907)
Les Demoiselles d’Avignon painted by Pablo Picasso (1907)

Constitutional Challenge to Canada’s Prostitution Laws

Ontario Superior Court of Justice
Tuesday Oct. 6th to Friday Oct. 9th & Monday Oct. 19th, 2009
361 University Avenue, Toronto Ontario

*For more information, please contact:
Professor Alan Young at (416) 736-5595 or Terri-Jean Bedford at (416) 278-4538

* The Safe Haven Initiative is a project undertaken by a group of volunteer law students, under the direction of Professor Alan Young, to develop a litigation strategy designed to improve the working conditions of sex trade workers in Canada.

Court File No. 07-CV-329807PD1

Notice of Application
Terri-Jean Bedford, Valerie Scott, Amy Lebovitch - Applicants
Attorney General of Canada - Respondent
Attorney General of Ontario - Intervener

The Applicants Make Application For:

(a) An Order Declaring that ss.210 (Bawdy House), 212(1)(j) (Living On The Avails) and 213 (1)(c) (Communication) of the Criminal Code of Canada violate s. 7 of the Charter of Rights and Freedoms

And as such are unconstitutional and of no force and effect;

(b) An Order Declaring that s.213(1)(c) of the Criminal Code of Canada violates s.2(b) of the Charter of Rights and Freedoms and such is Unconstitutional and of no force and effect; and

(c) Such further and other relief as the Honorable Court may deem just.

The Grounds For This Application Are:

(a) The Applicant, Terri-Jean Bedford, worked in the sex trade in the late 1970’s and the 1980’s and since 1993 has worked as a dominatrix. She has been convicted of keeping a common bawdy house for the purpose of prostitution with respect to both her former and current work. In her former work in the sex trade, she was subjected to serious acts of violence when she was working on the streets. She never experienced this violence while working at indoor locations as a sex trade worker and then later as a dominatrix. She wishes to resume work as a dominatrix but is not willing to risk further arrest and prosecution under s.210 (bawdy house) of the Criminal Code;

(b) The Applicant, Valerie Scott, has worked in the sex trade since the early 1980’s and in recent years she has worked as an activist campaigning for the rights of sex workers. She is currently the Executive Director of Sex Professionals of Canada (SPOC) and, in her capacity as an activist, she warned the Federal Government that the following the enactment of the communications law (s.213 (1) (c)) in 1985, the violence against sex trade workers on the streets has escalated. To combat this violence, she posts a “bad date” list on the SPOC website so that sex trade workers on the streets can obtain information about customers who may pose a risk of harm to their physical safety. This Applicant also wishes to resume work in the sex trade by opening a secure and safe indoor location, but will not do so because of the current criminal prohibition on bawdy houses;

(c) The Applicant, Amy Lebovitch, has been a sex trade worker since 1997. She has worked on the streets but now chooses to work from her home for fear of violence when working on the streets. By working from her home, she believes she has increased her physical security, but she is now concerned about the legal consequences of working indoors. She is also concerned that her live-in partner will be charged with living on the avails for living with her in the home;

(d) Twenty-One Witnesses, who have tendered affidavit evidence for this Application, describe and outline the nature and frequency of physical and psychological violence experienced by sex trade workers in various cities and towns across Canada. Of the 21 witnesses eleven have worked, or are currently, working in the sex trade. Of these eleven, four currently work for groups or associations that provide assistance to sex trade workers. Eight witnesses have academic postings at various universities across Canada and have conducted empirical research into issues relating to violence against sex trade workers. One witness is a journalist and another is a current Member of Parliament. All 21 witnesses depose that the current legal regime significantly contributes to the risk of violence experienced by women who enter the sex trade;

(e) The Act of Prostitution per se has always been a legal activity under the Criminal Code but the Code prohibits many other activities accompanying or associated with this lawful business. Under s.210, it is illegal to conduct business in an indoor location on a habitual and frequent basis, and the witnesses to this Application depose that violence is significantly reduced or eliminated in most indoor settings. Under s.212 (1) (j) it is illegal to hire managers, drivers, and security personnel and the witnesses to this Application depose that these types of services can reduce or eliminate the incidence of violence. Finally, it is illegal under s.213(1)(c) to “communicate” for the purposes of

Prostitution and the witnesses to this Application depose that the prohibition on “communication” has compelled sex workers to make hasty decisions without properly screening customers when working on the streets;

(f) These provisions deprive sex workers of their right to liberty under s.7 of the Charter of Rights and Freedoms by exposing them to the risk of imprisonment. These provisions also deprive sex trade workers of their right to security under s.7 of the Charter of Rights and Freedoms by creating legal prohibitions on the necessary conditions required for this type of work to be conducted in a in safe and secure setting, thus exposing the sex worker to an increased risk of physical or psychological harm;

(g) The deprivation of liberty and security in these circumstances is not in accordance with the principles of fundamental justice because these provisions are “arbitrary” as defined by the Supreme Court of Canada in R. v. Caine/Malmo-Levine [2003] 1 S.C.R. 571. An arbitrary law is measured by the standard of “gross disproportionality”. As the Court said: “if the use of the criminal law were shown by the appellants to be grossly disproportionate in its [negative] effects on accused persons, when considered in light of the objective of protecting them from the harm caused by [prostitution], the prohibition would be contrary to fundamental justice and s. 7 of the Charter”;

(h) The Deprivation of Liberty and Security in these circumstances is not in accordance with the Principles of Fundamental Justice, and in particular, the rule of law because these provisions create an alliance between the Government and the black market whereby the government permits the lawful pursuit of prostitution but forces the prostitute to rely upon a black market, the criminal element, to supply the services needed to conduct this business in a safe and secure environment;

(I) The Deprivation of Liberty and Security in these circumstances is not in accordance with the Principles of Fundamental Justice because the provisions are overbroad in that they overshoot the mark by extending the criminal law to activities which are not rationally connected to the state objectives underlying the prohibitions; and

(j) In 1990, the Supreme Court of Canada in Reference Re: ss.193 and 195.1(1)(c) of the Criminal Code [1990] 1 S.C.R. 1123 held that the s. 213(1)(c) communicating offence violated s. 2(b) (Freedom of Expression) but further held that the violation was saved by s.1 of the Charter of Rights. There is new empirical evidence not considered by the Supreme Court of Canada that shows that the law is not effectively achieving its stated objectives. Much of this evidence is found in government reports evaluating the impact of the 1985 communicating law. In light of new evidence the balancing of rights and interests by the Supreme Court of Canada under s.1 of the Charter will have to be revisited as a law which is ineffective and does not serve its stated objectives cannot constitute an s. 1 reasonable limit on the fundamental Freedom of Expression.

The Following Documentary Evidence is relied upon by the Applicants at the hearing of the Application:

The Affidavits of the Applicants, Terri Jean Bedford, Valerie Scott and Amy Lebovitch; The Affidavits of Wendy Babcock, Wendy Harris, Linda Shaikh and Carol-Lynn Strachan; The Affidavits of Susan Davis, Prostitution Alternatives Counseling and Education Society of British Columbia- PACE Society),Kara Gillies (Maggie’s: The Toronto Prostitutes’ Community Service Project), Maurganne Mooney (Sex Worker’s Community Alliance), Jody Patterson (Prostitutes Empowerment Education and Resource Society - PEERS); 

The Affidavits of Professors:

Cecilia Benoit (University of Victoria) - Augustine Branigan (University of Calgary)

Deborah Brock (York University) - Elliot Leyton (Memorial University of Newfoundland)

John Lowman (Simon Fraser University) - Gayle MacDonald (St. Thomas University)

Fran Shaver (Concordia University) -Eleanor Maticka-Tyndale (University of Windsor);

The Affidavits of Libby Davies (Member of Parliament for Vancouver East) and Dan Gardner (Ottawa Citizen); Report of the Special Committee on Pornography and Prostitution (1985) (Fraser Committee Report, excerpt: Section IV – Recommendations on Prostitution), Department of Justice Canada, Street Prostitution: Assessing the Impact of the Law (Synthesis Report) (1989), House of Commons, Report of the Standing Committee on Justice and the Solicitor General (October, 1990), Department of Justice Canada, Victimization of Prostitutes in Calgary and Winnipeg (1994), Report of the Federal/Provincial/Territorial Working Group on Prostitution (December, 1998); Juristat, Canadian Centre for Justice Statistics, Street Prostitution in Canada (1995), Homicide in Canada (2000), Homicide in Canada (2001), Homicide in Canada (2002), Homicide in Canada (2003), Homicide in Canada (2004), Homicide in Canada (2005); Hearings of the Subcommittee on Solicitation Laws of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness (January 31, 2005 – May 30, 2005), Report of the Subcommittee on Solicitation Laws (2006); and

Such further and other materials as Counsel may advise and this Honorable Court may permit.

Rolla by Henri Gervex (1878)
Rolla by Henri Gervex (1878)

“I picked prostitutes as my victims because I hate most prostitutes and I did not want to pay them for sex. I also picked prostitutes as victims because they were easy to pick up without being noticed. I knew they would not be reported missing right away, and might never be reported missing. I picked prostitutes because I thought I could kill as many of them as I wanted without getting caught.”
Gary Ridgway, Green River Killer, 2003

Madame’s Birthday Party by Edgar Degas (1878)
Madame’s Birthday Party by Edgar Degas (1878)

“[There are] 26 sex-trade workers whom Pickton is accused of murdering. Another 40 women remain missing, after vanishing from Vancouver's drug-infested Downtown Eastside since 1978."
Lorie Culbert, Vancouver Sun, June 5/06

“In the past 15 years, the bodies or remains of nine women have been found in rural communities surrounding Edmonton. Most led what police call "high-risk lifestyles” a euphemism for involvement in prostitution and addicted to drugs or alcohol. [In response] the Alberta RCMP launched Project KARE to review 82 cases of women with high-risk lifestyles who were murdered or are missing.”
Daniel Girard (Toronto Star, Western Canada Bureau) Feb 5/05

“The so-called Highway of Tears, [is] a 700-kilometre stretch of road that runs between Prince George and Prince Rupert, B.C. RCMP say 18 women are missing from the area, while Amnesty International attributes 32 missing person’s cases to the area, all women, most of them aboriginal.”
Keith Bonnell, CanWest News Service, Aug 9/09

“Winnipeg-area police forces have announced that a new task force will probe the cases of three teens and dozens of others like them. It's a move that comes years after the first calls for a special investigation into what native groups estimate are 75 women missing or murdered across Manitoba since the 1960s.”
Anna Mehler Paperny, Globe & Mail, Sep 9/09

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© 2012 Terri Jean Bedford Toronto Ontario