In a unanimous decision authored by the Chief
Justice of Canada, the Supreme Court has upheld lower courts
decisions striking down some of Canada's prostitution laws as
unconstitutional. Though prostitution itself is not illegal in
Canada, there are a myriad of criminal laws that confine
prostitution to either street prostitution or
Section 210 makes it an offence to be an
inmate or owner or landlord of a bawdy-house or brothel. Section 212(1)(j) makes it an offence to live
on the avails of another prostitution (i.e., pimping). And
section 213(1)(c) makes it an offence to stop
or communicate with someone in a public place for the purpose of
engaging in prostitution.
The Supreme Court of Canada held that all three provisions
violate section 7 of theCanadian Charter of Rights and Freedoms. In a
nutshell, the provisions prevent prostitutes from implementing
certain safety measures—such as hiring security guards or
screening potential clients—that could protect them from
violence, which violates their security of the person.
Recognizing the political and policy morass this decision leaves
the government, the Supreme Court suspended the declaration of
invalidity for one year.
Though much will be said in the media and online about this
decision, my first impressions are:
The Court mentions twice in the first five paragraphs that
prostitution itself is not illegal in Canada. Though this may
surprise some people, prostitution can be practiced legally either
on the street (if the prostitute does not communicate about it) or
on out-call (in a location outside the prostitute's home). The
emphasis on the legality of prostitution suggests to me that the
Court was troubled by whether the government can, constitutionally,
make an otherwise legal activity unsafe by confining its location
and how it is practiced.
For legal scholars, this case deals with two interesting issues
that may have broader impacts. First, the Court made clear that
trial judges can ignore the doctrine of stare decisis in
two limited circumstances: when a new legal issue is raised or if
there is a significant change in the circumstances or evidence. So,
in this case, the Application Judge was entitled to ignore the
1990 Prostitution Reference because that case was
argued on different legal principles (liberty, vagueness and
permissibility) than this case (security of the person,
arbitrariness, overbreadth and gross disproportionality).
Second, the Court seems to have collapsed the three principles of
fundamental justice at issue here (arbitrariness, overbreadth and
gross disproportionality). Though the Court emphasizes that they
remain distinct principles, the application of them seems to be
joined and it's hard to see how an unconstitutional law
wouldn't violate two or all of the principles.
The Court has adopted the "sufficient causal
connection" test for causation in section 7 cases. The
Attorneys General argued that the impugned laws can only violate
section 7 if there is an "active, forseeable and direct"
nexus between the law itself and harm to the claimants. The Court
preferred the "flexible standard".
Notwithstanding the front-page headlines, the real work is now
to be done by Parliament. Does this decision provide a roadmap for
the government to pass constitutional laws that ban brothels,
pimping and soliciting? Probably not. Will the government use the
notwithstanding clause to invalidate the decision? Politically
dangerous and uncharted. Or will Canada shift its views on
prostitution akin to some countries in Europe?
Rob Staley, Derek Bell, Ranjan Agarwal and Amanda McLachlan
were counsel to interveners in this case.
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