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 “out-calls”.
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 the Canadian 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.