Bedford, Substantive Rationality, and Participatory Democracy

Abstract

The Supreme Court of Canada’s Bedford decision (2013 SCC 72) has life-altering significance for sex trade workers and it is crucial to the prospects of Parliamentary regulation of the sex trade through the Criminal Code. In Bedford, the Supreme Court struck down three sets of offence provisions relating to the sex trade under the Charter and established the framework for determining the constitutionality of the new sex trade provisions in Bill C-36. While the case engaged numerous issues, this paper focuses on the constitutional doctrine at work in Bedford. Following a brief discussion of the threshold issues of “security of the person” and “legislative causation,” the paper offers the beginnings of a theory of fundamental justice, before providing an account of the constitutional principles against arbitrariness, overbreadth, and gross disproportionality. The paper argues that these principles exemplify a more general constitutional requirement of “substantive rationality,” and contends that these principles open a space for corrective participatory democracy in the judicial review of the constitutionality of legislation.