‘It is not a crime in Canada to sell sex for money.’ This factual assertion opens the unanimous judgment of the Supreme Court of Canada in Bedford v Attorney General, 2013 SCC 72. It is the first and a repeated premise leading to the judgment’s conclusions: the criminal prohibitions on keeping a bawdy-house, living on the avails of prostitution, and communicating in public with respect to a proposed act of prostitution are unconstitutional for violating the rights to life and security of the person. This post evaluates the factual premise that prostitution is a lawful activity and, more generally, the significance of liberties in the law.

The Supreme Court places much significance on the liberty in law to sell sex for money. Here is a sample:

[59] “Here, the applicants argue that the prohibitions on bawdy-houses, living on the avails of prostitution, and communicating in public for the purposes of prostitution, heighten the risks they face in prostitution — itself a legal activity.”

[60] “The prohibitions at issue do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks.”

[61] “It is not an offence to sell sex for money.”

[62] “Working on the street is also permitted, though the practice of street prostitution is significantly limited by the prohibition on communicating in public.”

[87] “… even accepting that there are those who freely choose to engage in prostitution, it must be remembered that prostitution — the exchange of sex for money — is not illegal.”

[89] “The impugned laws deprive people engaged in a risky, but legal, activity of the means to protect themselves against those risks.”

The judgment’s repeated assertion that there is a legal liberty to sell sex for money draws on the unstated premise that there is a moral quality to this liberty or to all liberties in the law, such that that which is not criminally prohibited is therefore just, choice-worthy, and not to be discouraged by government or law. The unsound character of this reasoning is evident from an examination of some fundamental juridical categories.

A ‘liberty to’ is the opposite of a ‘duty not to’. That it is not a crime to sell sex for money is equivalent to the absence of a criminal duty not to sell sex for money. The absence of a criminal duty need not imply the absence of another (non-criminal) legal duty: for example, my criminal liberty to break my contract with you does not imply my legal-contractual liberty to do so. More fundamentally, the absence of any legal duty need not imply the absence of a moral duty; equivalently stated, the presence of a liberty in law need not imply the presence of a liberty in morality.

Consider how foreign the Court’s repeated emphasis on the criminal liberty to sell sex sounds when other legal liberties are substituted for it:

The applicants argue that the prohibition on assault heightens the risks they face in bullying – itself a legal activity.

Adultery is a risky – but legal – activity.

It is not an offence to lie to one’s friends.

In each of these cases, the legal liberty to engage in the activity confronts a moral duty not to. It is a moral wrong to bully another, to commit adultery, to lie to one’s friends, a wrong in no way camouflaged by the absence of a legal duty not to do so.

Of course, many legal liberties track moral liberties, among them: the liberty to contract (itself bounded by legal and moral duties not to contract with certain persons and over certain matters); the liberty to express oneself (itself bounded by legal and moral duties not to defame, to libel, falsely to shout fire in a crowded theatre, . . .); and the liberties to assemble peacefully, to associate, to practice one’s religion or none at all, to follow one’s conscience, to . . . (all bounded by . . .).

The mere presence of a liberty in the law does not conclude the question whether there is a liberty in morality. And yet, the Supreme Court of Canada’s regular reference to the legal liberty to sell sex is intended to convey that it equated the absence of a legal duty not to sell sex with the absence of a moral duty not to do so, and, therefore, the absence of any ground to discourage the sale of sex.

This resulted in a misguided characterisation of the relationship between the criminal liberty to exchange sex for money and the criminal duties not to keep a bawdy-house, to live on the avails of prostitution, or to communicate in public with respect to a proposed act of prostitution. The Court reasoned that the criminal duties rendered the ‘lawful activity [of prostitution] more dangerous’, drawing the following ‘analogy’:

[87] “An analogy could be drawn to a law preventing a cyclist from wearing a helmet. That the cyclist chooses to ride her bike does not diminish the causal role of the law in making that activity riskier. The challenged laws relating to prostitution are no different.”

The Court’s analogy is telling. One has both a legal and a moral liberty to ride one’s bike (as bounded by duties not to do so on another’s property, on the motorway, etc). The assumed persuasiveness of this analogy rests on the Court’s unstated and undefended premise that one also has a moral liberty to sell sex for money. Absent that premise, the analogy can do no work, just as it would do no work if appealed to in support of the legal liberties to bully, to commit adultery, and to lie to one’s friends.

How then to characterise the relationship between the criminal liberty and criminal duties? The Attorneys General of Canada and of Ontario argued that the criminal duties were to be understood as seeking to deter prostitution (para. 131). The Court dismissed the argument, affirming that the record established that ‘the [only] purpose of the prohibition[s] is to prevent community harms’, with ‘community harms’ to be understood as excluding any harms inherent to the sale of sex for money (para. 131; see also paras. 132, 137-138, and 146-147). This misunderstanding was directed by the Court’s unwillingness to divorce a legal liberty from a moral liberty.

Consider this alternative characterisation of the relationship between the criminal duties surrounding prostitution and the criminal liberty to sell sex for money.[1]  Prostitution is a moral wrong. It is harmful both to the prostitute and to the other engaging in the contracted sexual activity. One has a moral duty both not to sell and not to purchase sex. To do so is inimical to the community’s common good and a violation of equality and dignity. Prostitution is, therefore, an act worthy of legal prohibition. However, the act is also deeply personal and if truly private not one that the law should seek to regulate directly if undertaken between adult persons. Rather, the law should frustrate prostitution by indirect means, chief among them: prohibiting keeping a bawdy-house, living on the avails of prostitution, and communicating in public with respect to a proposed act of prostitution. Such prohibitions of relatively public acts pursuant to prostitution are not to be analogised to the reckless or purposeless regulation of a moral liberty (as would be the prohibition against wearing a helmet when riding a bicycle); their objective is to frustrate with a view to eliminating a deeply private, but immoral activity that wrongs the prostitute, the client, and the community. In doing so, the legislature can be taken to have acted on the view that failure to intervene to frustrate prostitution would be an injustice against those persons for whom it is responsible, persons including the seller and the purchaser of sex.

It may be that these prohibitions are to be abandoned in favour of an alternative approach to the wrong of prostitution. I take no position on that question, except to say this: it is a question not best approached by assuming that the criminal liberty to sell sex for money implies a moral liberty to do so.

Grégoire Webber is Associate Professor of Law at the London School of Economics.

[1] This paragraph is indebted in part to Bradley Miller ‘Proportionality’s Blind Spot: “Neutrality” and Political Philosophy’ in Huscroft, Miller, and Webber (eds) Proportionality and the Rule of Law (Cambridge, 2014) 382-383.