Judging Sex Work: Bedford and the Attenuation of Rights

How a court case ruling spurned a change in law that is presented as being helpful to sex workers, but in reality, can be harmful.

In Canada (AG) v. Bedford, the Supreme Court of Canada struck down prohibitions against communicating in public for the purpose of sex work, living on its avails, and working from a bawdy house. Its narrow constitutional reasoning enabled Parliament to respond by adopting the ＂end demand＂ or ＂Nordic Model＂ of sex work regulation, an approach widely criticized for failing to ensure sex worker safety.

Judging Sex Work takes stock of the Bedford decision, arguing that the constitutional issue was improperly framed. Because the most vulnerable sex workers have no realistic choice but to commit the impugned offenses, they already possess a legal defense. The constitutionality of the sex work laws should therefore have been assessed by their application to those who choose sex work, an approach that militates in favor of upholding these laws based on current jurisprudence. While this approach leads to the former restrictions on sex work being constitutional, it also has the salutary effect of forcing litigants to consider a more pressing question: Can sex work be rationalized as a criminal matter at all?

Colton Fehr is assistant professor in the Faculty of Law at Thompson Rivers University. He is the author of Constitutionalizing Criminal Law and has been published in numerous journals.