Fundamental freedoms or moral soapbox?

Michael's picture

There are essentially two ways to change unjust laws, by appealing to the legislature, or by referring the statutes to an independent judiciary for a  determination of whether they transgress fundamental freedoms protected by the constitution. Both approaches have been tried in Canada with respect to sex work legislation. 

The last judicial review ocurred in 1990, and was lost in an interesting split of the Supreme Court along gender lines. It nearly succceeded however. It passed the first test, in that of two sections of the Criminal Code that were being challenged, the majority of the court held that;

Section 195.1(1)(c) of the Code is inconsistent with s. 2(b of the Charter but is justifiable under s. 1 of the Charter

Section 195.11(1)(c), as it was then, dates from 1972 and prohibits solicitation in public. Specifically it states that;

Every person who in a public place or in any place open to public view stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction.

Section 2(b) of the Charter of Rights and Freedoms  guarantees;

freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

while section 1 provides a caveat in that it;

guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.(emphasis added)

Thus, while prohibition of solicitation was held to infringe freedom of expression, it was held by the majority that this was a reasonable infringement in a free and democratic society. On the contrary, the two dissenting female judges held that the law failed the test of proportionality, in that it;

constitutes a more serious impairment of the individual's freedom than the avowed legislative objective would warrant.

The second approach, that of legislative reform,  took place between 2003 and 2006, in which a parliamentary committee held hearings into the effect of the laws, and in its final report agreed they needed to be changed, but failed to agree on how, being split on partisan lines this time.

This parliamentary paralysis brings us to the next round of activity - a series of constitutional challenges to determine if the jurisprudential climate has changed. These are laborious processes and remain at the level of the court of first instance, dealing with inter alia, a number of procedural issues.

The Case

The most recent development was the attempt to intervene by three groups with a vested interest in the prohibition of sex work, the Christian Legal Fellowship, REAL Women of Canada, and the Catholic Civil Rights League. This motion for leave to intervene caused quite a commotion in sex work and feminist circles. However the motion has now been dismissed. The full decision can be read here.

The application is based on 'traditional conceptions of family and society and morality, equality and rights issues'. In part, their argument states that the laws in question determine what is appropriate public morality (as opposed to private) and protect the 'dignity of victims of prostitution'.

The applicants in the case responded that these concerns do not address the issue at bar, namely the safety and security of sex workers, and furthermore that moral and spiritual dimensions have been ruled by the Supreme Court to be an improper foundation for criminal prohibition (R v Butler 1992).

In dismissing the motion for leave to intervene, Matlow J observed that the moving parties failed to understand that matters of law do not provide a 'political platform' for the 'advancement of personal views, beliefs, policies and interests'. He was unmoved by their claims to have special knowledge or expertise in these matters, as opposed to being advocates for their stated  position. Furthermore he saw their claim as one that was potentially disruptive, and likely to considerably increase costs and time, particularly since they sought immunity from costs against themselves.

Finally he expressed concern that these parties were advancing highly controversial points of view that reflected only a small segment of society.

Commentary

While a procedural motion such as this is a small matter in a much bigger picture, it has implications well outside the context. The advancement of narrow viewpoints of morality as those most properly to be imposed on society as a whole have formed a large part of the traditional arguments for the legislated control of sex work as offensive to the values of some. In this decision in the Superior Court of Justice (Ontario) these arguments are placed in perspective and affirm the fundamental principle established in Butler separating morality from the criminal law.

While it will be of interest to see if this decision is appealed, the judge stated that he was  'overwhelmingly' led to his conclusions.

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