Section 7 of the Charter: “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”
Section 7 protects life, liberty, and security of the person but only if those rights are taken away in a manner that violates a principle of fundamental justice (“PFJ”). In other words, the government can deprive individuals of these rights as long as it does not violate a PFJ. By way of example, the SCC has previously ruled that arbitrariness and vagueness violate the PFJs. Therefore, an arbitrary or vague law that effects life, liberty, or security of the person will infringe s. 7. That same law, however, if it was not arbitrary or vague, would be found constitutional, as long as it did not violate any other section of the Constitution.
Once an infringement is established, the government can argue, as with any other infringement, that it is justified under section 1; however, it is only in very rare circumstances that a law that violates a PFJ will be upheld under section 1.
Prostitution
Prostitution in Canada is not technically illegal, but many activities associated with prostitution are. The only way in which a prostitute can work, without engaging the Criminal Code, is to perform out-call work – where she goes to meet a customer indoors, such as in a hotel room. Working in-call (in a fixed indoor location such as her home or a brothel) is prohibited by bawdy-house provisions. Street prostitution is also effectively illegal, as publicly communicating the willingness to provide sexual services is criminal. Procuring and living off the avails of prostitution are also illegal. In Bedford v. Canada (Attorney General), three of these provisions were challenged as violating the s. 7 rights of prostitutes. This decision has been appealed to the SCC.
Bedford v. Canada (Attorney General), Ontario Court of Appeal – 2012
The applicants were current or former prostitutes. They challenged three Criminal Code provisions aimed at curbing prostitution. The Ontario Court of Appeal (the “ONCA”) found that these provisions engaged s. 7, but that only two violated the PFJs. The blanket provision on bawdy houses was struck down, as it prevented a single prostitute from working in a location under her control, which would aid her safety. With respect to the living off the avails of prostitution provision, the ONCA read in words to limit the effect to those who exploited prostitutes. In this way, the ONCA held, the provision wouldn’t catch drivers and bodyguards who could protect prostitutes. The effects of this decision, however, have been suspended because the decision has been appealed to the SCC.