Court File No.

C52799 & C52814

COURT OF APPEAL FOR ONTARIO

BETWEEN: TERRI JEAN BEDFORD, AMY LEBOVITCH and VALERIE SCOTT Applicants (Respondents in Appeal) - andATTORNEY GENERAL OF CANADA Respondent (Appellant in Appeal) - andATTORNEY GENERAL OF ONTARIO Intervener (Appellant in Appeal)

FACTUM OF THE INTERVENERS PACE, SWUAV AND PIVOT

May 4,2011

Arvay, Finlay 1350-355 Burrard Street Vancouver BC V6C 2G8 Joseph J. Arvay, Q.c., LSBC #6441 Email: jarvay@arvayfinlay.com Tel: 604.689.4421 Fax: 604.687.1941 Pivot Legal Society Suite 103 - 119 West Pender Street Vancouver BC V6B 1S5 Katrina E. Pacey, LSBC #505892 Email: kpacey@pivotlegal.com Tel: 604.729.7849 Fax: 1.866.591.0597 Counsel for the Interveners, PACE, SWUAV and Pivot

TO: AND TO:

Registrar, Court of Appeal for Ontario

Department of Justice Canada Ontario Regional Office The Exchange Tower 3400 - 130 King Street West Toronto ON M5X lK6 Michael M. Morris/Gail Sinclair/Sandra Nishikawa/Julie Jai/Roy LeelMatthew Sullivan

Tel: 416.973.9704 Fax: 416.952.4518 Email: michael.morris@justice.gc.ca

Counsel for the Appellant the Attorney General of Canada

AND TO:

Alan Young Barrister & Solicitor Osgoode Hall Law School York University 4700 Keele Street North York ON M3J IP3

Tel: 416.736.5595 Fax: 416.736.5736 Email: ayoung@osgoode.yorku.ca

Counsel for Respondent Terri-Jean Bedford

AND TO:

Ron Marzel Barrister & Solicitor 1170 Sheppard Avenue West, Unit 10 Toronto ON M3K 2A3

Tel: 416.485.5800 Fax: 416.485.1610 Email: rmarzel@telus.blackberry.net

Counsel for Respondent Amy Lebovitch

AND TO:

Neuberger Rose LLP 1392 Eglinton Avenue West Toronto ON M6C 3E4 Stacey Nichols Tel: 416.364.3111 Fax: 416.364.3271 Email: Stacey@nrlawyers.com Counsel for Respondent Valerie Scott

AND TO:

Ministry of the Attorney General of Ontario 720 Bay Street, 10th Floor Toronto ON M5G 2K1 Jamie Klukach/Christine Bartlett-Hughes/ Megan Stephens

Tel: 416.326.4600 Fax: 416.326.4656 Email: Jamie.Klukach@ontario.ca

Counsel for the Respondent the Attorney General of Ontario
AND TO

Hunter Litigation Chambers Suite 2100 -1040 West Georgia Street Vancouver BC V6E 4H1 Brent Olthuis Tel: 604.647.3540 Fax: 604.647.4554 Email: bolthuis@litigationchambers.com Counsel for Intervener British Columbia Civil Liberties Association

AND TO

HIVI AIDS Legal Clinic of Ontario 400 - 65 Wellesley Street East Toronto ON M4Y 1G7 Renee Lang Tel: 416.340.7790 Fax: 416.340.7248 Email: langr@lao.on.ca Cooper & Sandler LLP 1900 - 439 University Avenue Toronto ON M5G 1Y8 Jonathan Shime Tel: 416.585.9191 Fax: 416.408.2372 Email: jshime@criminal-Iawvers.ca Counsel for the Interveners Canadian HIV/AIDS Legal Network and BC Centre for Excellence on HIV/AIDS

AND TO:

Sack Goldblat Mitchell LLP 1100 - 20 Dundas Street W. Toronto ON M5G 2G8 Cynthia Petersen Tel: 416.979.6440 Fax: 416.591.7333 Email: cpeterson@sgmlaw.com Galldin Law 500 - 30 Metcalf Street Ottawa ON KIP 5L4 Karin Galldin Tel: 613.244.9593 Fax: 613.230.0872 Email: Karin@galldinlaw.ca Counsel for the Interveners POWER (Prostitutes of Ottawa/Gatineau Work Educate Resist) & Maggie's: The Toronto Sex Worker's Advocacy Project

AND TO:

Paliare Roland Rosenberg Rothstein LLP 501 - 250 University Avenue Toronto ON M5H 3E5 Andrew Lokan Tel: 416.646.4300 Fax: 416.646.4301 Email: Andrew.Lokan@paliareroland.com Counsel for the Intervener Canadian Civil Liberties Association

AND TO:

Faraday Law 860 Manning Avenue Toronto ON M6G 2W8 Fay Faraday Tel: 416.389.4399 Fax: 647.776.3147 Email: fay.faraday@faradaylaw.com Counsel for the Interveners Canadian Association of Sexual Assault Centres et al.

AND TO:

Bennett Jones LLP 3400 First Canadian Place P.O. Box 130 Toronto ON M5X 1A4 Robert StaleylDerek BelllRanjan K. Agarwal

Tel: 416.777.6503 Fax: 416.863.1716 Email: agarwalr@bennettjones.com

Counsel for the Interveners Christian Legal Fellowship, Catholic Civil Rights League and REAL Women of Canada

INDEX PART PAGE

OPENING STATEMENT ............................................................................................. 1 PART I PART II PART III STATEMENT OF FACTS ..................................................................... 1 ISSUES ON APPEAL ............................................................................ 1 ARGUMENT .......................................................................................... 2

A.

Causal Connection ...................................................................... 2

Causation Analysis for Section 7 breach ....................................... 2 Trial Judge's Findings in this Case ............................................... 5

B.

Principles of Fundamental Justice ............................................. 6

Fundamental Justice - Overbreadth ............................................. 6 Fundamental Justice - Gross Disproportionality .......................... 9 Fundamental Justice - Non-discrimination ................................. 13

C.

Standing .................................................................................... 16
The Court's approach ................................................................. 17 Consistent with the justification for standing rules ...................... 17 Consistent with access to justice concerns ................................... 18

SCHEDULE "A" SCHEDULE "B"

LIST OF AUTHORITIES ........................................................ 21 STATUTORY AUTHORITIES ............................................... 23

1.

Criminal Code, R.S.C. 1985, c. C-46, ss. 210, 212(1)0), 213(1)(c) ............................................. 23 Canadian Charter of Rights and Freedoms, ss. 7, 15, Part I ofthe Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ..................... 24

2.

OPENING STATEMENT
1.

PACE Society, Downtown Eastside Sex Workers United Against Violence

Society and Pivot Legal Society (collectively, the "Coalition") intervene in this appeal to focus the analysis on the human rights of street-based sex workers who engage in sex work in order to meet their subsistence needs ("street-based sex workers"). The

experiences of vulnerable women in this group justify striking down the impugned prostitution laws ("the Laws"). 2. Many street-based sex workers are vulnerable and marginalized as a result of

factors such as poverty, addiction, homelessness or inadequate housing, and mental and physical illness. Notwithstanding these challenges, they could, if permitted, take steps to substantially improve their security when engaging in sex work by working indoors, working with a companion, working in settings with others nearby, and taking time to assess a prospective client. The Laws render all these measures illegal, and place a constitutionally impermissible limitation on sex workers, at the cost of their liberty, safety, and in numerous cases, their lives.
PART I: STATEMENT OF FACTS

3.

Except as indicated below, the Coalition relies on the statement of facts set out in

the Respondents' Factum.

PART II: ISSUES ON APPEAL

4.

The Coalition relies on the issues on appeal stated by the parties to the appeal.

-2-

PART III:
A

ARGUMENT

Causal Connection

5.

The Trial Judge found, based on a correct assessment of the law and the evidence,

that there is a causal connection between the Laws and the unsafe circumstances in which street-based sex work typically occurs: in isolated areas, out of the public eye, without adequate time to assess a client, and without effective safety measures in place. The Trial Judge found that the Laws create barriers to safer conditions for sex workers. 1 6. The Appellant Attorney General of Canada ("AG Canada") argues that because

Canada does not directly deprive sex workers of their security of the person, there is no causal relationship between the Laws and violence against sex workers. 2 This approach is flawed in that it fails to take into account the effect ofthe Laws on the circumstances in which sex work occurs, and fails to recognize that the Laws limit sex workers' opportunity to (1) assess a client and the potential for violence or other abuse, and (2) interact with a client in an environment where there are safety measures in place to reduce the risk of violence or other harms. The Laws narrow the circumstances in which sex work can occur legally to the most isolated and risky contexts.
Causation Analysis for Section 7 breach

7.

The law is clear that Canada may bear responsibility for a deprivation of a s. 7

Charter3 interest effected by third parties or brought about indirectly. In Suresh and

Bedford, Appeal Book ("AB"), Tab 5, paras. 361-62 Factum of the Attorney General of Canada, March 1,2011 ("AGC Factum"), paras. 4, 97, 109 3 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 [Charter]
I

-3-

Khadr, the Supreme Court of Canada ("SCC") confirmed that the government bears

responsibility for a deprivation of life, liberty or security of the person effected by a third party where there is a sufficient causal connection between Canada's participation and the deprivation. 4 In all cases, the Court must decide whether the law or government action contributes to a situation of harm or risk that deprives the claimant of a s. 7 interest. 8. In Khadr, the SCC made clear that Canada may be found to contribute to and

therefore legally cause a deprivation in the context of a serious pre-existing risk of harm or deprivation. Mr. Khadr was captured, charged and imprisoned by the American state pursuant to its laws. The deprivation of his liberty preceded and would have existed without the actions of the Canadian state. Nonetheless, the SCC found that an

interrogation by Canadian representatives materially contributed to Khadr's situation amounting to a deprivation of his s. 7 rights.
9. Suresh and Khadr arose because of actions that occurred at the hands of

third-party states, but which the Canadian government enabled. Canada's participation in a deprivation can also be in the form of a law, as opposed to a state action such as an interrogation or deportation order, where the law contributes to the setting in which a person's life, liberty or security of the person are affected. 10. AG Canada argues that sex workers encounter violent people and therefore

encounter violence. However, the Trial Judge's findings support the conclusion that

Suresh v. Canada (Minister a/Citizenship and Immigration), 2002 (Prime Minister) v. Khadr, 2010 see 3 [Khadr], paras. 19-21

see 1[Suresh] , paras. 53-4; Canada

-4-

there is a causal relationship between the Laws and sex workers' experiences of violence, because the Laws impede their ability to take steps to improve their security. 11. A pre-existing risk of harm does not preclude state responsibility, as the

government does not act only in safe spheres. This is common sense, and is also in keeping with the contextual analysis required for s. 7. The court must determine whether there is a deprivation of life, liberty or security of the person in light of the often complex social and legal context in which that interest arises. 5 12. The situations in which a s. 7 claim arises are often complex and controversial.

The connection between a state law and a harm or deprivation can be indirect, there may be a pre-existing risk of harm, and the deprivation may ultimately be carried out by third parties. The case law confirms that, where the laws of Canada are concerned, these complicating factors do not change the test nor relieve the government of responsibility, but form part of the context in which the court is to determine whether on all the facts, a law or state action contributed to a situation in which the claimant's s. 7 rights are deprived. If the answer is yes, then the nexus is established. 13. In a number of cases, courts engaged in this type of contextual analysis and found

that a law caused a deprivation of security of the person, even though the claimant was already suffering or exposed to a risk of harm. State action was held to have increased the severity or likelihood of the harm faced by the claimant. In particular, courts have ruled that onerous abortion regulations,6 state-implicated delays in health care,7 and legal

Winnipeg Child and Family Services v. K.L. W, 2000 SCC 48, para. 71, per L'Heureux-Dube; also R. v. Parker (2000), 49 O.R. (3d) 481 (ON. C.A.) [Parker], para. 82 6 R. v. Morgentaler, [1988] 1 S.C.R. 30 [Morgentaler], paras. 35, 93; 113 7 Chaoulli v. Quebec (Attorney General), 2005 SCC 35, paras. 39, 108-14,222
5

-5-

limits on access to medical marijuana8 were each causally responsible for a deprivation of security of the person. 14. In Morgentaler, Beetz J. described the role of the state where there is an existing

risk to health and security of the person:

86. Generally speaking, the constitutional right to security of the person must include some protection from state interference when a person's life or health is in danger. The Charter does not, needless to say, protect men and women from even the most serious misfortunes of nature. Section 7 cannot be invoked simply because a person's life or health is in danger. The state can obviously not be said to have violated, for example, a pregnant woman's security of the person simply on the basis that her pregnancy in and of itself represents a danger to her life or health. There must be state intervention for "security of the person" in s. 7 to be violated.
87

If a rule of criminal law precludes a person from obtaining appropriate medical treatment when his or her life or health is in danger, then the state has intervened and this intervention constitutes a violation of that man's or that woman's security of the person ... 9 Here, an interlocking set of criminal laws preclude sex workers from taking basic

15.

steps to improve their safety and reduce the risk of violence. It was open to the Trial Judge to assess the evidence and conclude that the intervention of the state materially contributes to the violence sex workers face.
Trial Judge's Findings in this Case

16.

The Trial Judge found that sex workers face a high risk of violence in their work.

The parties agreed on this point and the finding was supported by the evidence. 1o The Trial Judge did not ignore evidence demonstrating that risk of violence, and properly identified the question before her as being whether the impugned laws contributed to that

Parker, paras. 3, 97, 106-07; Hitzig v. Canada (2003),231 D.L.R. (4th) 104 (ON C.A.) Morgentaler, paras. 86-7; relied upon in Parker, paras. 106-07. 10 Bedford, AB, Tab 5, paras. 293, 299

-6risk. She found that they did, and her conclusion was supported by her underlying

findings on the evidence, including that (a) venue and working conditions can impact the degree of risk of harm, and (b) the impugned laws prevented sex workers from seeking out venues and working conditions that decreased the risk of harm. II The Trial Judge's findings fulfill the requirement of causation between the Laws and the deprivation of the claimants's. 7 interests.

B
17.

Principles of Fundamental Justice

The Trial Judge correctly held that the deprivations of s. 7 rights caused by the

Laws do not accord with the principles of overbreadth and gross disproportionality. The Coalition argues that they also do not comport with the principle of non-discrimination, a principle of fundamental justice.
Fundamental Justice - Overbreadth

18.

A law will be found to violate s. 7 where it is "clear that the legislation infringes

life, liberty or security of the person in a manner that is unnecessarily broad, gomg beyond what is needed to accomplish the governmental objective". 12 19. The Trial Judge correctly applied the legal test for overbreadth and found that

s. 210 of the Criminal Code l3 (the "Bawdy House Provision") and s. 212(1)0) of the
Criminal Code (the "Living on the Avails Provision") are overbroad in that they capture

11

12

Bedford, AB, Tab 5, paras. 300, 360-61 R. v. Heywood, [1994] 3 S.C.R. 761 [Heywood], para. 52 13 Criminal Code, RS.C. 1985, c. C-46 ("Criminal Code")

-7considerable activity beyond their stated objectives and unreasonably entrench upon constitutionally-protected conduct. 14 20. The evidence before the Trial Judge demonstrated that the Bawdy House and

Living on the Avails Provisions go well beyond the asserted legislative objectives of combating public nuisance and safeguarding public health and safety. The Laws capture activity that does not cause any of the harms that they are intended to limit, and in fact prohibit activities that would reduce the risk of those harms.
21.

The Trial Judge found that the two factors that "affect the level of violence

against prostitutes are location or venue of work and individual working conditions. Working indoors is generally safer than working on the streets." The Bawdy House Provision limits sex workers from establishing indoor workspaces where they can control the conditions of their work and ensure that safety measures are in place. IS 22. The overbreadth of the Bawdy House Provision has a particularly damaging, and

in some cases deadly, impact on those involved in street-based sex work. The evidence before the Trial Judge was abundantly clear that street-based sex work is particularly dangerous and, in comparison with off-street sex work as well as other vocations, carries a much greater risk of violence, including the risk of brutal assault or murder. Prohibiting sex workers, and particularly street-based sex workers "who are largely the most vulnerable prostitutes and face an alarming amount of violence,,16 from establishing or accessing safer indoor workspaces is to deny access to life-saving measures.

Heywood; Bedford, AB, Tab 5, paras. 389-410 Bedford, AB, Tab 5, paras. 300-01 16 Bedford, AB, Tab 5, para. 361
14

15

-8-

23.

When considering the overbreadth of the law, the Court may be assisted by the

use of reasonable hypotheticals to ascertain the law's proportionality.17 In this case, the Trial Record may be supplemented with hypothetical examples of ways in which striking down the Bawdy House Provision would increase opportunities for safety for street-based sex workers. As such, the Court may consider the following harm-reducing scenarios: Non-profit organizations and housing providers operating in areas where

street-based sex work occurs may establish low-cost or no-cost indoor venues where street-based sex workers can accompany their clients and provide services in a safe, clean and supportive space where effective security measures are in place; Affordable housing providers that are housing women involved in

street-based sex work may permit prostitution to take place in their premises, and establish safety protocols and offer supplies and support services so that sex workers can work safely in their apartments or rooms. 24. Prohibiting sex workers, groups composed of sex workers, and groups formed to

assist sex workers from establishing safe workspaces is not only well beyond the ambit of combating common public nuisance and safeguarding public health and safety, it is antithetical to those goals. Allowing the establishment of safer indoor venues furthers the legislative objectives of public health and safety and is consistent with the goal of preventing public nuisance because it provides an opportunity for street-based sex workers to move indoors.

17

Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, paras. 80-1

-9-

25.

The Living on the Avails Provision is also overbroad. Its legislative objective

was correctly identified by the Trial Judge as the prevention of exploitation of prostitutes and profiting from prostitution by pimps. The Trial Judge found that the provision goes beyond that objective and captures non-exploitive conduct. In fact, the provision

captures conduct that could prevent exploitation, such as working in partnership with other sex workers or hiring a security guard. 26. The Trial Record established that the Living on the Avails Provision is overbroad

and "restricts the liberty of such persons "for no reason.,,18 The evidence demonstrated that sex workers, working at street level, could hire spotters to record license plate numbers, record details regarding where a sex worker and client may be headed, and monitor her return home. 19 The Living on the Avails Provision prohibits such safety measures.
Fundamental Justice - Gross Disproportionality

27.

The question of whether laws are grossly disproportionate involves consideration

of whether legislative measures are "so extreme that they are per se disproportionate to any legitimate government interest."
20

The material question is whether Canadians

would find the effects of the legislative measures abhorrent or intolerable when considered in light of the state interest at stake.

Bedford, AB, Tab 5, para. 402; Pivot Legal Society, Voices for Dignity: A Call to End the Harms Caused by Canada's Sex Trade Laws., Joint Application Record and Supplementary Joint Application Record, August 7, 2009 ("JAR"), Vol. 24, Tab 55(M), p. 7156 20 Suresh, para. 47; R. v. Malmo-Levine; R. v. Caine,2003 see 74 [Malmo-Levine], paras. 143,159,169; PHS Community Services Society v. Canada (Attorney General), 2010 BCCA 15 [PHSj, para. 296 (Smith J.A., dissenting in the result)
19

18

- 10-

28.

The Trial Judge found that the effects of each of the impugned Laws were per se

grossly disproportionate to their respective legislative objectives. The Laws endanger the safety and lives of sex workers, especially sex workers who are street-based. The Trial Judge found that the Laws have the effect of forcing sex workers to "choose between their liberty interest and their own personal security." The result is that the Laws place sex workers at "greater risk of experiencing violence." The effects of the Laws thus represent a "severe deprivation" of each of the three interests protected under s. 7?! 29. There are two steps to the analysis of gross disproportionality. First, the court

must consider whether the impugned law pursues a legitimate state interest. Second, the court must consider the gravity of the alleged Charter infringement in relation to the state interest pursued. With respect to each of the Laws, the Trial Judge found one or more legitimate state interest(s), but also found that the gravity of the Charter infringements with respect to each of the Laws were severe and went to the core of the bodily integrity protected by s. 7. The aims of the Laws are legitimate on their own, but the Laws are intolerable in light of their effect of enhanced vulnerability to violence for sex workers. 22
30.

The Trial Judge found the impugned Laws were aimed at reducing public

nuisance and protecting public health and safety, but found that the actual effects of the laws are intolerable because they restrict the ability of sex workers to avoid harm?3
31.

The Living on the Avails Provision prevents sex workers from "legally hiring

bodyguards, drivers, or other security staff', placing sex workers at greater risk of
21

Bedford, AB, Tab 5, para. 422 Malmo-Levine, paras. 141, 143, 169; Cochrane v. Ontario (Attorney General) (2008), 92 O.R. (3d) 321 (ON C.A.), p. 332, leave to appeal to S.C.C. refused, [2009] S.C.C.A. No. 105 23 Bedford, AB, Tab 5, paras. 427-28
22

- 11 -

exploitation, and forcing sex workers to rely for security on those who are wiIling to break the law. The effects of the law are precisely the opposite of the law's aims, and present sex workers with a "perverse choice" between safety and liberty, encouraging sex workers to rely on potentially exploitative lawbreakers. 24 32. Section 213(l)(c) of the Criminal Code (the "Communication Provision") forces

sex workers to "forego screening clients," which the Trial Judge found to be "an essential tool to enhance their safety." The law increases the risk of violence towards sex workers, which causes "great cost to families, law enforcement, and communities and impacts the well-being of the larger society." The law's effects are in direct opposition to its aims, placing sex workers in harm's way.25 33. The broader community is also harmed where violence against sex workers goes The impact extends beyond sex workers, and their friends and family.

unchecked.

Effects on the public at large include the resources expended on homicide and missing persons investigations, such as Project KARE 26 in Edmonton and the Pickton investigation and trial in Vancouver. Mr. Pickton was charged with 27 counts of first degree murder, and was found guilty of murder on a trial of the first six counts, the evidence revealing the tragic fate of Pickton's victims, all of whom were drug-dependent sex workers who had worked on the streets in the Downtown Eastside ofVancouver. 27 A Missing Women Commission of Inquiry is now underway to inquire into the conduct of

25 26

Bedford, AB, Tab 5, paras. 429-30 Bedford, AB, Tab 5, paras. 432-34 Bedford, AB, Tab 5, para. 124 27 R. v. Pickton, [2010] 2 S.C.R. 198, paras. 1-2
24

- 12 the police investigations conducted between January 23, 1997 and February 5, 2002 respecting women reported missing from the Downtown Eastside of Vancouver.

34.

In PHS, laws which denied access to healthcare for drug addicts were found to be

grossly disproportionate, in violation of the principles of fundamental justice. As in the present Appeal, the laws at issue in PHS put a vulnerable group in physical danger, threatened their bodily integrity, and undermined their human dignity.28

35.

No matter how broadly the legislative objectives are defined, the effects of the In addition to the aims

Laws are still grossly disproportionate to those objectives.

identified by the Trial Judge, the AG Canada submits that the laws also aim to deter the "commercialization and institutionalization of prostitution", to "protect those engaged in prostitution", and to discourage "the practice of prostitution." Even if the law did have protective aims, the effects of the Laws still impose an abhorrent burden on a vulnerable group, the very group that is said to be in need of protection. For all sex workers, and particularly street-based sex workers, the record shows that the effects of the laws harm rather than protect sex workers, and that the harms extend to family members, law enforcement, and the health and safety interests of the larger community. The impugned Laws have perverse effects regardless of how broadly the aims are construed. 29

36.

Legislative policy choices do not deserve deference where a law is grossly

disproportionate. Moreover, a question is not shielded from constitutional review simply because it is "controversial". As the British Columbia Court of Appeal confirmed in
PHS: "if a law is determined to be not in accordance with the principles of fundamental
PHS, para. 76 (Rowles I.A.) AG Canada Factum, paras. 113, 164

28

29

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justice, the court is performing its legitimate judicial role and is not trenching on matters of policy when declaring the law to be unconstitutional. ,,30 Or as the Supreme Court of Canada has just recently held in the Fraser3l decision:
[79] The approach to deference advanced in Health Services is consistent with this Court's general jurisprudence. Deference should inform the determination of whether Parliament's scheme satisfies the requirements of the Charter, as articulated by the courts. See P. Macklem, "Developments in Employment Law: The 1990-91 Tenn" (1992), 3 S.C.L.R. (2d) 227, at pp. 239-41. Conversely, the courts should not rely on deference to narrow the meaning of Charter rights in the first place. Doing so would abdicate the courts' duty as the "final arbiters of constitutionality in Canada" Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, at para. 31).

Fundamental Justice - Non-discrimination

37. Section 7 jurisprudence recognizes that the principles of fundamental justice are

not articulated in any single, exhaustive list. Instead, the principles evolve as specific s. 7 violations are addressed. 32 The Coalition submits that in its consideration of s. 7, the Court should also apply the principle of non-discrimination. 38. In Canadian Foundation, McLachlin C.l. writing for the majority set out the

three-part test for establishing a principle of fundamental justice: (a) it must be a legal principle; (b) there must be sufficient consensus that the alleged principle is "vital or fundamental to our societal notion of justice"; and (c) the alleged principle must be capable of being identified with precision and applied to situations in a manner that yields predictable results. 33

PHS, paras. 60-1 (Rowles 1.A.) Ontario (Attorney General) v. Fraser, 2011 SCC 20 32 Reference re Motor Vehicle Act (British Columbia) S 94(2), [1985] 2 S.C.R. 486 [BCMVA] 33 Canadian Foundationfor Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4 [Canadian Foundation]; BCMVA, p. 503; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, p. 590
30

31

- 1439.

The principle of non-discrimination satisfies all three criteria.

First,

non-discrimination is a legal principle, as opposed to a mere policy matter or state interest. It is a constitutionally protected right, pursuant to s. 15 of the Charter, and is also protected under federal and provincial human rights legislation. 40. The principle of non-discrimination also provides meaningful content for the s. 7

guarantee. Central to the principle of non-discrimination are notions of human dignity which find expression in almost every section of the Charte/ 4 , and freedom from laws that create disadvantage or prejudice. These values should be a key consideration when assessing laws that violate the life, liberty or security of the person. 41. Second, the principle of non-discrimination is fundamental to our notion of

justice. When assessing the impact of criminal laws which are inherently punitive, and where a deprivation of life, liberty or security of the person has been found, we must ask whether those laws operate in a discriminatory manner. In relation to security of the person, the Court should consider whether a particular government action or law has targeted or jeopardized the health and physical integrity of members of a specific vulnerable group, not all of whom are necessarily before the court as rights litigants. While a threat to the security of an individual person is sufficient in some circumstances to overturn a law, the principle of non-discrimination operates where the evidence indicates that the infringement is replicated across a group of people with shared protected characteristics. That evidence was before the court in these proceedings.

34

Morgentaler, para. 229

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42.

Third, the principle of non-discrimination is frequently applied in Charter

litigation as well as in the human rights context and can, therefore, be precisely identified and applied to situations in a manner that yields predictable results. It is a concept for which there is extensive judicial guidance. 43. Thus, the Coalition submits that the Prostitution Laws deprive sex workers' rights

to liberty and security of the person in a manner contrary to the principle of non-discrimination by imposing a greater burden on women involved in sex work, especially those living in poverty and with disabilities. 44. The Communication Provision historically has been the most rigorously enforced

of the Laws. It targets street-based sex workers, who are among the most vulnerable women in the sex industry and who often, and particularly as a result of the Bawdy House Provision, have no other options for sex work other than street leve1. 35 Therefore, the Coalition submits that the Communication Provision infringes s. 7 and does not accord with non-discrimination as a principal of fundamental justice. 45. The Bawdy House and Living on the Avails Provisions bar sex workers from

establishing safe, dignified and controlled circumstances in which to carry out their work. No other legal occupation is prohibited from taking basic steps to reduce the risk of harm in the workplace. Moreover, other occupations where the potential harm is death and assault, such as the military and police, are occupations replete with security measures.
Bedford, AB, Tab 5, paras. 93, 166; House of Commons, Report ofthe Standing Committee on Justice and Human Rights, The Challenge of Change: A study of Canada's criminal prostitution laws (December 2006), JAR, Vol. 82, Tab 164, p.2467; FederallProvinciallTerritorial/Working Group on Prostitution- Report and Recommendations in respect of Legislation Policy and Practices Concerning Prostitution-Related Activities, 1998, JAR, Vol. 79, Tab 160, p.23862;
35

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This stands in stark contrast to the situation of street-based sex workers, a group that is impoverished, marginalized and in the vast majority of cases, female. It offends the principle of non-discrimination that the criminal law places this group at increased risk of violence, exploitation and death.
C

Standing The Coalition submits that all three respondents in this appeal should be granted

46.

private interest standing. A claimant's direct standing must be considered in the entire context of the claim, including the characteristics of the plaintiff, the nature of the claim, and the factual situation. An overly technical and insufficiently contextual or realistic approach to standing is inconsistent with underlying constitutional values including equality and access to justice. 36 47. Standing rules exist to preserve judicial resources and ensure that matters are

determined on the basis of facts and the contending views of those most affected by the impugned law.
37

Standing to advance claims on the basis of constitutional wrongs

should also be informed by access to justice considerations. 48. The court was correct to grant private standing to all three claimants, and is

entitled to deference by this court because its analysis was a) consistent with the principles underlying the law of standing; b) consistent with the need to ensure access to justice for those who face multiple and intersecting barriers and, in particular, the

36

37

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, paras. 51-2, per Wilson J. Canada (Minister ofJustice) v. Borowski, [1981] 2 S.C.R. 575; Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607

- 17 -

disadvantages and barriers faced by people actively involved in sex work; and c) consistent with the nature of the claim being advanced in this case in particular.
The Court's approach

49.

In this case, the Court's ruling on private standing takes account of the real

experiences of the claimants. The Trial Judge held that to draw a distinction for standing purposes between Ms. Lebovich as compared to Ms. Bedford and Ms. Scott, on the basis that the former was presently engaged in prostitution and the latter were merely prevented by the laws from engaging in prostitution in a safe way despite their genuine intention to do so, was illusory.38
Consistent with the justification for standing rules

50.

The Court's finding in this case ensures the preservation of judicial resources and

furthers the Court's desire to hear from appropriate litigants with adequate facts. Where one plaintiff s direct standing is incontrovertible, and the case will proceed in any event of the court's ruling on the standing of the others, and where the difference between the plaintiffs is so narrow and technical as to be illusory, the court promotes judicial economy with its grant of standing to all. This is especially so because it sends the message to defendants that such technical applications to contest standing are a waste of the courts' and litigants' resources. Defendants should be dissuaded from resorting to such tactics in future.

38

Bedford, AB, Tab 5, para. 55

- 18 -

51.

The goal of ensuring that sufficient facts are before the courts is also furthered by

the court's approach. By ensuring that the rules of standing do not eliminate claimants on the basis of distinctions so narrow as to be essentially without principle, the court has the benefit of hearing claims on matters of public interest from those most affected, and those with the ability to bring the relevant factual and evidentiary case to the Court's attention. The rights of Ms. Bedford and Ms. Scott have been violated; that they have taken steps to avoid their rights being further infringed should not bar them from litigating an infringement that already occurred. In this case, having multiple claimants made an array of facts available to the Court, and assisted in demonstrating the common theme of the restrictions imposed by the Laws.
Consistent with access to justice concerns

52.

The approach taken by the Court is particularly necessary and important when

addressing the standing claims of persons who face extremely marginalized circumstances, such as those served and represented by the members of the Coalition. Many people living in poverty, experiencing prejudice and other forms of disenfranchisement, are also excluded from the justice system and the privilege of being able to assert their constitutional rights before the courts. To draw narrow and technical distinctions to exclude such parties from standing on occasions when they are able to come forward would exacerbate an already extremely limited opportunity to access justice. 53. The Court below took account of the factual realities of the claimants.

Ms. Bedford and Ms. Scott provided sworn evidence of their genuine intentions to

- 19-

engage

10

sex work in the future, as they had done in the past.

It would be an

overly-technical application of the law, and one based on an unsubstantiated assumption with no air of reality, to suggest that such an intention puts the claimants in the same position as any other Canadian. Ms. Bedford and Ms. Scott have engaged in sex work in the past and intend to do so in the future. To require anything further for their direct standing to be crystallized would amount to the AG Canada requiring proof that they were actively in violation of the Laws - Laws that place them in harm's way. That cannot be a proper rule of standing. In a society that values the rule of law, violation of the law cannot be a precondition of the right to come to court. 39 54. The test for private standing must be applied contextually, and with a view to

promoting access to justice in light of the real effects experienced by marginalized communities. A more stringent application of a requirement for direct effect or prejudice would have been inappropriate on the evidence of the realities faced by women involved in sex work. The evidence shows that there is danger and stigma associated with

identifying oneself publicly as a sex worker, along with a risk of retribution. 4o For street level sex workers, the barriers to litigation are numerous, including problems due to poverty, disability, addiction, fear, loss of privacy and threat of loss of public and social serVIces.

39
40

Victoria (City) v. Adams (2008), 299 D.L.R. (4th) 193 (BC S.C.) Affidavit of Lauren Casey sworn May 29, 2008, JAR Vol. 26, Tab 58 p. 7422; Lauren Casey, Behind Closed Doors: Summary 0/ Findings (November 2008), JAR, Vol. 26, Tab 59(A), pp. 7589, 7593; Pivot Legal Society, VOices/or Dignity: A Call to End the Harms Caused by Canada's Sex Trade Laws., JAR, Vol. 24, Tab 55(M), pp.7155, 716l.

- 2055. Direct standing is based on whether or not a claimant is exceptionally affected or

prejudiced by a law. 41 In order to determine whether a party has direct standing, the test must take account of the specific nature of the harm in issue. In the case of street-based sex workers, they are, by definition, selling sexual services to achieve subsistence, at the risk of serious physical harm. For a person currently working in the sex trade, direct standing is obvious. However, involvement in sex work has a lasting impact on the individual. 42 The exceptional effect of the Laws persists long after an individual leaves sex work, and that experience alone should be sufficient to sustain the claim to direct standing.

ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS

2011.

4th

DAY OF MAY,

Katrina E. cey, LSBC # 05892 Lawyer for the Intervener Coalition Joseph 1. Arvay, QC, LSBC #6441 Lawyer for the Intervener Coalition

41

42

Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138 Cecilia Benoit and Allison Millar, Dispelling Myths and Understanding Realities: Working Conditions, Health Status, and Exiting Experiences o/Sex Workers (2001), JAR, Vol. 13, Tab 48(B) p. 3555

- 21 SCHEDULE "A" LIST OF AUTHORITIES

Tab

Description Authorities

Canada (Minister ofJustice) v. Borowski, [1981] 2 S.C.R. 575 Canada (Prime Minister) v. Khadr, 2010 SCC 3 Canadian Foundationfor Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4 Chaoulli v. Quebec (Attorney General), 2005 SCC 35 Cochrane v. Ontario (Attorney General) (2008), 92 O.R. (3d) 321 (ON c.A.) leave to appeal to S.C.C. refused, [2009] S.C.C.A. No.1 05 Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607 Hitzig v. Canada (2003), 231 D.L.R. (4th) 104 (ON C.A.) Ontario (Attorney General) v. Fraser, 2011 SCC 20 Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031 PHS Community Services Society v. Canada (Attorney General), 2010 BCCA 15 R. v. Heywood, [1994] 3 S.C.R. 761 R. v. Malmo-Levine; R. v. Caine,2003 SCC 74 R. v. Morgentaler, [1988] 1 S.c.R. 30 R. v. Parker (2000), 49 O.R. (3d) 481 (ON C.A.) R. v. Pickton, [2010] 2 S.C.R. 198 Reference re Motor Vehicle Act (British Columbia) S 94(2), [1985] 2 S.C.R. 486 Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1

2 3 4 5 6 7
8

9 10
11

12
13

14 15 16 17
18

19

- 22-

Tab

Description

20 21 22

Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138 Victoria (City) v. Adams (2008), 299 D.L.R. (4th) 193 (BC S.C.) Winnipeg Child and Family Services v. K.L. W, 2000 SCC 48

- 23 -

SCHEDULE "B" SCHEDULE OF STATUTORY AUTHORITIES

1.
SSe

Criminal Code, R.S.C. 1985, c. C-46

210, 212(1)0), 213(1)(c)

210. (1) Every one who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. (2) Every one who (a) (b) (c) is an inmate of a common bawdy-house, is found, without lawful excuse, in a common bawdy-house, or as owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or control of any place, knowingly permits the place or any part thereof to be let or used for the purposes of a common bawdy-house,

is guilty of an offence punishable on summary conviction. (3) Where a person is convicted of an offence under subsection (1), the court shall cause a notice of the conviction to be served on the owner, landlord or lessor of the place in respect of which the person is convicted or his agent, and the notice shall contain a statement to the effect that it is being served pursuant to this section. (4) Where a person on whom a notice is served under subsection (3) fails forthwith to exercise any right he may have to determine the tenancy or right of occupation of the person so convicted, and thereafter any person is convicted of an offence under subsection (1) in respect of the same premises, the person on whom the notice was served shall be deemed to have committed an offence under subsection (1) unless he proves that he has taken all reasonable steps to prevent the recurrence of the offence.

212.

(1)

Every one who

G)

lives wholly or in part on the avails of prostitution of another person, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. Every person who in a public place or in any place open to public view

213.

(1)

- 24(c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person

for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction.

2.

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11

ss. 7, 15 Life, liberty and security of person 7. 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.

Equality before and under law and equal protection and benefit of law 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Affirmative action programs (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.