In declaring unconstitutional the laws against public solicitation, brothels and living off the avails of a legal age-old occupation, the Supreme Court seems to be treading into Parliament’s domain again.
But parliamentarians can’t complain: The politicians invited the courts to butt in when they gave us the Charter of Rights and Freedoms in 1982 to order, or disorder, our lives.
Chief Justice Beverley McLachlin wrote that the trial judge, in what’s known as the Bedford case, was right not to feel bound by the decision of the Supreme Court in 1990 that the bawdy-house provision was not unconstitutional, and that the public soliciting ban was unconstitutional but justified as a “reasonable limit” to freedom of expression under Section 1 of the Charter.
“In my view,” the chief justice declared, “a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue.”
Albertos Polizogopoulos is a constitutional lawyer in Ottawa. He has expressed concern that the court’s findings in the Bedford case will cause “legal chaos” in the long term — that precedents that used to be counted on no longer can be.
He predicts that this could influence future court decisions on euthanasia and assisted suicide.
A layman like me probably can’t imagine that prostitution has changed much in Canada in a little more than 20 years, but as Jennifer Koshan of the University of Calgary’s law faculty has written, the Charter arguments surrounding it have.
In the 1990 prostitution reference case, the Supreme Court focused on the right to liberty in Section 7 to test the bans on public solicitation and bawdy houses. Koshan has said the right to security of the person, also in Section 7, is a “novel issue.”
She has written that the argument now isn’t that breaking the laws surrounding prostitution engages the prostitutes’ right to liberty, but that compliance with the law infringes on their right to security. As the prostitutes argued, the laws, by reducing their ability to screen clients and removing whatever protection brothels would offer, exposed them to greater danger.
The court rejected the argument that the danger is caused by the occupational choice that prostitutes make, rather than the law. It declared, even, that many prostitutes “had no meaningful choice” but to risk themselves because of “financial desperation, drug addictions, mental illness, or compulsion from pimps.”
It found a “sufficient causal connection” between the laws and the “prejudice” suffered by prostitutes. And said it need not be the only or dominant cause, but one based on “a reasonable inference, drawn on a balance of probabilities.”
What other cases tried by the courts, except Charter cases, are decided by reasonable inference and balance of probabilities? Whatever has happened to beyond reasonable doubt as a condition for guilt or innocence?
Well, no one was on trial in the Bedford case, save the law itself, save Parliament — save society that expects Parliament to pass, sometimes, laws reflecting a public moral consensus.
And what has happened to Section 1 that assures us that the freedoms guaranteed in the body of the Charter may be subject “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”?
That’s the section, I’ve thought, that was meant to provide a degree of genuflection to the wishes of Parliament. It was the section that saved the ban on public solicitation in the 1990 prostitution reference.
But McLachlin said this was “not seriously argued” by lawyers for governments in Bedford; therefore, it was “unnecessary to engage in a full Section 1 analysis.”
Yaakov Roth, an American constitutional lawyer, wrote in the National Post in January that the Canadian Supreme Court is using “social facts” gleaned largely from “experts” in Charter cases as if they are facts presented through testimony and evidence at regular trials.
He said its conclusions — like the one that banning solicitation exposed prostitutes to violence — aren’t facts, but social theories to be used by judges to substitute their “policy views” for those of Parliament.
Our Constitution, called by judges a “living tree,” wants pruning.
