Regina v Bedford (2010 OSCJ; 2013 SCC)

CITATION: Bedford v. Canada, 2010 ONSC 4264

COURT FILE NO.: 07-CV-329807 PDl

DATE: 2010/10/28

 

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

TERRI JEAN BEDFORD versus ATTORNEY GENERAL OF CANADA - and- ATTORNEY GENERAL OF ONTARIO

HEARD: October 6, 7, 8, 9, 19, 20 and 26, 2009.

REASONS FOR JUDGMENT

HIMEL, J.:

Here are the relevant parts of the report (which runs 131 pages) where the work of Professor Brannigan is cited. Reference to the Brannigan affidavit appears in ten separate paragraphs. The judgment was published in September, 2010:

 

[150] In 1989, the Department of Justice published research that was conducted as part of the three-year review of Bill C-49 in a report titled Street Prostitution: Assessing the Impact of the Law Synthesis Report (Ottawa: Department of Justice Canada, 1989) [the "Synthesis Report"]. The Synthesis Report integrated research commissioned by the Department of Justice in five jurisdictions across Canada from a variety of leading researchers, including Dr. John Lowman and Dr. Augustine Brannigan, who are affiants for the applicants. The research was designed to evaluate whether Bill C-49 had caused a reduction in the nuisance associated with street prostitution. 

 

[156] In 1994, the Solicitor General and the Department of Justice funded a field study in Calgary and Winnipeg investigating whether or not s. 213 had put prostitutes at an increased risk of harm. Dr. Augustine Brannigan, a professor of sociology at the University of Calgary, was 38 the head researcher and drafter of the formal report, Victimization of Prostitutes in Calgary and Winnipeg (Ottawa: Department of Justice Canada, 1994) [the "CalgarylWinnipeg Study"].

 

[157] The Calgary/Winnipeg Study made use of statistics available through the Canadian Centre for Justice Statistics showing that 63 known prostitutes were killed between 1991 and 1995, making up five per cent of all female homicides in Canada. While 20 per cent of all homicides remained unsolved, 54 per cent of the homicides of known prostitutes remained unsolved at the end of 1995, The Calgary/Winnipeg Study concluded the following at p. 2:

 

Since the law outlaws simple communication in public for the purposes of prostitution, it has been suggested that to escape surveillance prostitutes might be pressured to work in more remote locations and might be less careful in screening potential dates. In addition, the increased liability of arrest might make the prostitutes more dependent on exploitative pimps for protection in order to work, and subject to violence and coercion to ensure continued dependency. As a consequence, the suppression of street communication might increase the exposure of sellers to dangerous johns and pimps and might further entrench them in the street trade.

 

[158] The Calgary/Winnipeg Study found that while the street prostitution industry appeared to be growing in Canada, due to innovative policing, street prostitution in Calgary was shrinking. Police in Calgary had turned their attention away from enforcing s. 213, and had made the detection and prosecution of pimps their primary task. By erecting traffic barricades and asking prostitutes to relocate to other known strolls outside of residential areas, nuisance had been largely controlled.

 

[159] Dr. Brannigan was reluctant to draw direct connections between s. 213 and incidents of violence or homicide. The Calgary/Winnipeg Study concluded at p. 36 as follows:

 

The role of s. 213 is remote. This section, along with all the other laws designed to suppress prostitution, simply make the buying and selling of sex a comparatively underground activity. The secrecy of the trade not only shields prostitution from public view but provides a cover for violence against prostitutes which would be more likely to be detected and deterred if the activities operated completely in the open.

 

[307] Dr. Augustine Brannigan described street prostitution as a "far riskier sector" than indoor prostitution because street workers are not able to make use of the safety precautions and screening mechanisms available to indoor prostitutes.

 

[333] In Dr. Augustine Brannigan's opinion, the prostitution-related provisions of the Criminal Code put prostitutes into risky situations, as they feel compelled to make hasty decisions due to the communicating provision, are made dependant on strangers in vehicles for their safety due to the bawdy-house provisions, and work without a security guard due to the living on the avails provision.

 

[334] In 1987, the Department of Justice commissioned a series of studies on the effectiveness of Bill-C-49 throughout Canada. Dr. Brannigan was one the researchers selected to conduct the study on the Prairies, which focused on Calgary, Winnipeg, and Regina: Minister of Justice and Attorney General of Canada, Street Prostitution: Assessing the Impact of the Law - Calgary, Regina, Winnipeg (Ottawa: Minister of Supply and Services Canada, 1989). They found, inter alia, that as a result of the communicating law, prostitutes were more passive in their behaviour on the stroll, more evasive in their conversations with clients, and more paranoid about undercover entrapment by the police. In Calgary, nearly half of the street prostitutes interviewed felt that the streets were more dangerous since the enactment of the communicating law.

 

[335] In 1994, Dr. Brannigan conducted the CalgarylWinnipeg Study. Eleven out of 16 prostitutes and former prostitutes interviewed in Calgary agreed with the proposition that the communicating provision "forces women to work in more remote and less safe places." However, in the study Dr. Brannigan wrote at p. 42 that "violence [against prostitutes] does not appear to be related to the communicating law, at least not directly." He described street work as a "far riskier sector" regardless of the communicating provision, because street workers are not able to make use of the safety precautions and screening mechanisms that indoor workers may utilize.

 

[494] In the 1994 Calgary/Winnipeg Study, Dr. Augustine Brannigan found no substantial decline in the rate of prostitution in Calgary or Winnipeg. One quarter of all female and one third of all male prostitutes he interviewed in Calgary had entered the industry after the enactment of the new provision.

 

Subsequent developments:

 

1. The Supreme Court of Canada upheld the Ontario Court decision. Canada (AG) v Bedford 2013 SCC 72, [2013] 3 SCR 1101, December 20, 2013. See judgment at https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13389/index.do.The decision legally de-criminalized communication for the purposes of prostitution, bawdy houses and living off the avails of prostitution. And the academic research was critical in justifying this finding.
2. The SCC gave Parliament the opportunity to devise a charter-proof law or laws and suspended the application of the SCC decision for a year: Concluding that each of the challenged provisions violates the Charter does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted, as long as it does so in a way that does not infringe the constitutional rights of prostitutes.  The regulation of prostitution is a complex and delicate matter.  It will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime.  Considering all the interests at stake, the declaration of invalidity should be suspended for one year. See paragraphs [164] to [169].
3. In December 2014 the Stephen Harper government introduced new Scandinavian style laws (or "Nordic Laws") in Bill C-36 The Protection of Communities and Exploited Persons Act. The new laws (a) re-criminalized communication for the purpose of prostitution (b) made it a crime to buy sex but not to sell sex (c) made it illegal to advertise the sale of sexual services and (d) modified the bawdy house laws to protect the dependents of prostitutes from being “found-ins” in their own residences.
4. In April 2019 the criminal courts in Kitchener, Ontario heard cases against the operators of an escort service who were charged with procurement, prostitution advertising and living off the avails of prostitution. Convictions are going back on appeal to the very courts that led to de-criminalization in the aftermath of Bedford.