Understanding Bedford v Canada

March 18, 2011

Understanding Bedford v Canada -- Part 1 of 6

There has been much written about the Ontario Constitutional Challenge ("Bedford v Canada"), and about Justice Susan Himel's ruling of 28 Sept 2010 in the Ontario Superior Court of Justice which struck down three provisions of the Criminal Code of Canada. (Himel's ruling has been stayed, and the next level of appeal in this Constitutional Challenge is scheduled to be heard in the Ontario Court of Appeal in June 2011. This next stage of the legal struggle will surely be fought over similar legal ground as was the Superior Court battle.)

Much of what has been written on Cerb and elsewhere I have agreed with; some I have disagreed with - this is all par-for-the-course. I have read Justice Himel's ruling several times, and it strikes me that probably many here on the board don't have the time or inclination to wade through the whole thing. While relying on journalistic summaries and short quotes is fine as far as it goes, it's easy to forget the depth and breadth of the case, and to forget how complicated and nuanced was the chain of reasoning, and the constant weighing of conflicting evidence and testimony, that was required for Justice Himel to arrive at her conclusions.

For those Cerb members who might wish to gain a more subtle understanding of the legalities of this case, without investing hours in reading the official ruling, and also for my own reference, I have put together a "condensed version" of the ruling, together with some explanatory comments.

What follows may seem long and somewhat convoluted. But that's in the nature of the juridical issues that were (and are still, pending further appeal) at play. It may be noticed that while the essential positions of the two parties may be stated fairly succinctly and pithily, and legitimately debated at that level, nevertheless in the legal realm there were many hurdles to be overcome, each of which required Himel's analysis and judgment - based both on legal precedents and on the conflicting evidence presented by the respective parties. There were therefore a great many legal and evidentiary curves where the train could have flown off the rails, and there are a great many of those same curves where the train could yet be derailed in higher appellate courts.

I can't emphasize enough that a full understanding of the case can only be had by studying the actual ruling and the court documents themselves. What follows is a condensation and has inevitably been over -simplified. But hopefully it successfully conveys an impression of some of the complexities of the case. To the best of my own understanding it is accurate. I have relied heavily, where I felt it best, on direct quotations from Justice Himel's ruling:

(http://www.canlii.org/en/on/onsc/doc/2010/2010onsc4264/2010onsc4264.html).

Because of the Cerb posting limits, this summary will be posted in six parts over six days. I ask that those who are interested, bear with me.

THE CRIMINAL CODE PROVISIONS THAT ARE BEING CHALLENGED:

Sections 210, 212(1)(j), and 213(1)© of the Criminal Code of Canada are alleged by the applicants to violate Section 7 of the Canadian Charter of Rights and Freedoms. Section 213(1)© of the Criminal Code is also alleged to violate Section 2(b) of the Charter.

Section 210 is the Bawdy-House Law:

210. (1) Every one who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

(2) Every one who

(a) is an inmate of a common bawdy-house,

(b) is found, without lawful excuse, in a common bawdy-house, or

© as owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or control of any place, knowingly permits the place or any part thereof to be let or used for the purposes of a common bawdy-house,

is guilty of an offence punishable on summary conviction....

Section 212(1)(j) is the Living on the Avails Law:

212. (1) Every one who ....

(j) lives wholly or in part on the avails of prostitution of another person,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years

Section 213(1)© is the Communication Law:

213. (1) Every person who in a public place or in any place open to public view ....

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.

THE CHARTER PROVISIONS REFERRED TO:

Section 7 of the Charter:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Section 2(b) of the Charter:

2. Everyone has the following fundamental freedoms:

.....

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

Section 1 of the Charter:

1. The Canadian Charter of Rights and Freedoms 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.

(http://laws.justice.gc.ca/en/charter/1.html#anchorbo-ga:l_I-gb:s_1)

OUTLINE OF THE LEGAL ANALYSIS:

Note that in order for the laws to be struck down based on the Section 7 challenge, three things had to be shown for each law:

1) the laws infringe upon the values protected by Section 7 of the Canadian Charter of Rights and Freedoms (they force sex workers to choose between their liberty interest (imprisonment for breaking the law) and/or their right to security of the person (violence)); and

2) this infringement cannot be overridden by the "principles of fundamental justice" (in jurisprudence, the "principles of fundamental justice" require the avoidance of arbitrariness, overbreadth, and gross disproportionality in the law; also, "fundamental justice" requires that the state must obey the law and promote compliance with the law); and

3) the laws are not saved by section 1 of the Charter as a reasonable limit demonstrably justified in a free and democratic society.

Also note that for the Communication Law to be struck down based on the Section 2(b) challenge, two things had to be shown:

1) the law infringes upon the values protected by Section 2(b) of the Canadian Charter of Rights and Freedoms (they violate freedom of expression); and

2) the law is not saved by section 1 of the Charter as a reasonable limit demonstrably justified in a free and democratic society.

For each and every one of the aforementioned things that had to be shown, there were a number of analytical sub-steps, and evaluations of legal precedence and conflicting evidence. We will see these steps unfold when we get to the analysis phase.

THE POSITIONS OF THE PARTIES:

The position of the applicants in-a-nutshell (this is just to get us started, we will hear much more later):

The Bawdy House Law (s. 210). The applicants claim that it violates Section 7 of the Charter, because it criminalizes working indoors, which the applicants claim is safer.

Living On The Avails (s.212(1)(j)). The applicants claim that it violates Section 7 of the Charter, because it criminalizes the hiring of managers, drivers, and security personnel, which contribute to safety.

The Communication Law (s.213(1)©. The applicants claim that it violates both Section 7 of the Charter, and also Section 2(b) of the Charter. The applicants claim that it s safer to be able to have the time to be able to openly communicate with potential clients in order to more effectively screen them. The applicants also claim that they have the right to freedom of expression.

Quoting Justice Himel:

[8] ... The applicants' case is based on the proposition that the impugned provisions prevent prostitutes from conducting their

lawful business

in a

safe environment

....

Quoting Justice Himel, the position of the respondents in-a-nutshell:

[17] According to the respondent, prostitution entails a high level of risk for individuals who engage in it and significant harms to society at large. The respondent asserts that social science evidence in Canada and internationally demonstrates that the risks and harms flowing from prostitution are inherent to the nature of the activity itself. Thus,

the risks and harms exist regardless of the many ways in which prostitution is practised, whether "street" or "off-street," and regardless of the legal regime in place.

Moreover, prostitution is associated with other harmful activities that include physical violence, drug addiction and trafficking, the involvement of organized crime and the globalization of the sex industry and trafficking in persons."

[20] According to the AG Ontario,

the physical and psychological harms experienced by prostitutes stem from the inherent inequality that characterizes the prostitute-customer relationship, and not from the Criminal Code.

In fact, AG Ontario states that the impugned provisions operate to limit the negative effects of prostitution on both the prostitute and the public, as they curtail commercialized institutional prostitution and prohibit public prostitution.

(part 2 - coming tomorrow)

Phaedrus · March 18, 2011

Fantastic job, WIT! Thanks for wading through this stuff so we don't have to... it's great for those of us who are interested in the technicalities

March 19, 2011

THE EVIDENCE:

Per Justice Himel, "[84] Evidence in this case was presented by way of a joint application record and a supplementary joint application record. Over 25,000 pages of evidence in 88 volumes, amassed over two and a half years, were presented to the court."

Evidence was presented by prostitutes and former prostitutes, police officers, an Assistant Crown Attorney, advocates, politicians, journalists, social workers, researchers and experts. Previous governmental debates and reports, both Canadian and International, were also considered as evidence.

Himel states:

[99] While neither party disputed that the other party's witnesses were, in fact, experts, a great deal of argument and evidence was devoted to criticizing these witnesses. Both parties alleged that certain experts were biased, that conclusions were generalized beyond the sample studied, that studies were methodologically flawed ...

[117] The following are the key matters in dispute amongst the experts:

a) Whether indoor prostitution is, or can be made, less dangerous than street prostitution;

b) Whether indoor prostitutes are in a better position to prevent harm to themselves than street prostitutes; and

c) Whether the impugned provisions materially contribute to the risk of harm suffered by prostitutes.

Justice Himel provided an outline of the factors that she took into consideration when evaluating the reliability of, and weight to be assigned to, the testimony of the Expert Witnesses for both sides of the case.

PRELIMINARY HURDLE: THE PROSTITUTION REFERENCE CASE OF 1990:

The Prostitution Reference case of 1990 (http://www.canlii.org/en/ca/scc/doc/1990/1990canlii105/1990canlii105.html) found that the Communication law violated Section 2(b)'s guarantee of freedom of communication, but that it was a reasonable limit under Section 1. In regards to both the Bawdy House Law and the Communication Law, it was found that the liberty infringement was in accordance with the principles of fundamental justice.

Therefore, the preliminary hurdle that the Applicants had to overcome in the current Constitutional Challenge was to show a reason why this court precedent of 1990 should be superceded.

The Applicants argued, among other things:

1) that while the 1990 case had dealt with the right to

liberty

, what it had

not

dealt with was the right to

security of the person

; and

2)

new material and empirical evidence had become available since 1990

regarding both the violence faced by prostitutes, and the lack of effectiveness of the current communication law in carrying out its stated objective of reducing public nuissance.

Judge Himel accepted these arguments:

[83] In my view, the s. 1 analysis conducted in the Prostitution Reference ought to be revisited given the breadth of evidence that has been gathered over the course of the intervening twenty years. Furthermore, it may be that the social, political, and economic assumptions underlying the Prostitution Reference are no longer valid today. Indeed, several western democracies have made legal reforms decriminalizing prostitution to varying degrees. As well, the type of expression at issue in this case is different from that considered in the Prostitution Reference. Here, the expression at issue is that which would allow prostitutes to screen potential clients for a propensity for violence. I conclude, therefore, that it is appropriate in this case to decide these issues based upon the voluminous record before me. As will become evident following a review of the evidence filed by the parties, there is a substantial amount of research that was not before the Supreme Court in 1990.

PRELIMINARY ANALYSIS: OBJECTIVE OF THE LAWS:

In the Charter Analysis that is to come later on (and that will be the core of the Constitutional Challenge), several crucial tests will depend in part on the issue of exactly what the objective of the impugned laws is understood to be. Therefore, both the applicants and the respondents presented arguments and historical evidence about the purported objectives of those laws.

Per Justice Himel:

[215] .... Constitutional analysis must proceed with the

legislative purpose

in mind and in its broader social and political context ... [216] In light of the fact that the s. 7 arguments raised in this case call into question the means chosen by Parliament to achieve its objectives, it is essential to properly identify the state objective underlying each of the impugned provisions. Each of the parties presented detailed arguments outlining why their interpretation of the objective of Parliament was the correct one.

[221] The framework of the Charter provides for a balancing of individual rights and societal objectives to be conducted in accordance with the values that underlie our legal system.

[222] It is clear that Parliament is entitled to legislate in order to protect societal values where there is a reasonable apprehension that harm will result if the legislature fails to act ...

Himels' conclusions about the objectives of the three laws:

1) The Bawdy House Law (s. 210).

Objective of the Law: Per Justice Himel, "[242] In my view, the subjective moral component .... is no longer properly regarded as a legislative objective of the provision .... I find that the objectives of the bawdy-house provisions ... are combating neighbourhood disruption or disorder and safeguarding public health and safety .... [243] The AG Ontario argues that the modern objective of the bawdy-house provisions in general is a concern for the dignity of persons involved in prostitution and the prevention of physical and psychological harm to them. I cannot find any support in the history of s. 210(1) for such a conclusion ... [255] In summary, I have found that the legislative objective of the bawdy-house provisions is the control of common or public nuisance."

2) Living On The Avails (s.212(1)(j)).

Objective of the Law: Per Justice Himel, "[272] .... the legislative aim of the living on the avails of prostitution provision is to prevent the exploitation of prostitutes and profiting from prostitution by pimps. A parasitic relationship is required in order to make out the offence ..."

3) The Communication Law (s.213(1)©.

Objective of the Law: Per Justice Himel,"[278] .... the Supreme Court has established that the communicating offence has as its purpose controlling the social nuisance associated with street prostitution. The provision applies to a broad range of expressive behaviour (as long as it is for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute) and it applies to a broad geographical area ..."

(part 3 - coming tomorrow)

MightyPen · March 20, 2011

Hey, this is *very* handy, informative and concrete. Thanks very much for doing this. I look forward to the remaining parts in your series.

March 20, 2011

THE CHARTER ANALYSIS - SECTION 7 - FIRST STEP

Remember (see my Part 1) that in order for the laws to be struck down based on the Section 7 challenge, three things had to be shown for each law. The first thing to be shown is that the laws do in fact infringe upon the values protected by Section 7 of the Canadian Charter of Rights and Freedoms, namely:

7. Everyone has the right to life,

liberty

and

security of the person

and the right not to be deprived thereof ....

Commencing Step One of her Charter Analysis, Justice Himel successively asks the following questions:

Do the Laws Deprive the Applicants of Liberty?

Himel answers yes. "[281] The availability of imprisonment for all of the impugned provisions is sufficient to trigger s. 7 scrutiny ..."

Do the Laws Deprive the Applicants of Security of the Person?

Himel answers yes, but this one is more nuanced, since the deprivation does not come directly from the State. The issue is whether or not there is a "sufficient casual connection" between the law and the deprivation of personal security:

[285]

The applicants

submit that the operation and intersection of ss. 210, 212(1)(j) and 213(1)© deprive them of security of the person. They recognize that the impugned provisions

do not directly cause harm

to prostitutes, as it is generally male clients that directly inflict violence upon female prostitutes. Rather, they argue that these provisions

"materially contribute" to the harm

faced by prostitutes by creating legal prohibitions on the conditions required for prostitution to be conducted in safe and secure settings.

[286]

The respondent

... argue

that there

needs to be a direct causal connection

between the harm alleged and the state action in order to find a violation of security of the person. Even if "material contribution" is found to be a sufficient causal standard, it argues that there is

no causal connection

between the impugned provisions and the harm alleged by the applicants,

as prostitution is inherently harmful

. The respondent argues that many of the complaints by the applicants are

due to the enforcement of the laws, rather than the laws themselves.

Furthermore, the respondent contends that many of the harms alleged by the applicants stem from violations of the impugned provisions. The respondent states that refusing to comply with the law and experiencing adverse consequences associated with the criminal justice system are not adverse effects that can support a finding of constitutional invalidity.

Judge Himel, after analyzing legal precedents, concluded that "[292] ... the applicants must demonstrate that there is a sufficient connection between the impugned provisions and the deprivation of security of the person alleged. I do not agree with the respondent that a direct causal connection is required."

Himel breaks down her question into two sub-questions:

a) Can the Harm Faced by Prostitutes in Canada be Reduced?;

and if so

:

b) Do the Impugned Provisions Sufficiently Contribute to the Harm Faced by Prostitutes?"

a) "Can the Harm Faced by Prostitutes in Canada be Reduced?"

Himel examined the evidence. Previous Government Studies and the Applicants' experts stated that indoor work was safer, and that there were several screening strategies and ways to make the workplace more secure. The respondents presented conflicting testimony.

[299] While both parties agree that prostitutes in Canada face a high risk of violence, they disagree as to whether violence is intrinsic to prostitution, or whether there are ways that prostitution can be practised that may reduce the risk of violence to prostitutes.

[300] The evidence led on this application demonstrates on a balance of probabilities that the risk of violence towards prostitutes can be reduced, although not necessarily eliminated. The two factors that appear to affect the level of violence against prostitutes are location or venue of work and individual working conditions. With respect to venue, working indoors is generally safer than working on the streets. Working independently from a fixed location (in-call) appears to be the safest way for a prostitute to work in Canada. That said, working conditions can vary indoors, affecting the level of safety. For example, working indoors at an escort agency (out-call) with poor management may be just as dangerous as working on the streets.

[301] Factors that may enhance the safety of a prostitute include being in close proximity to people who can intervene if needed, taking the time to screen a client (for example, smelling a potential client's breath, taking credit card numbers, working out expectations and prices), having a more regular clientele, and planning an escape route. While such measures may seem basic in their ability to reduce the risk of danger, the evidence supports these findings on a balance of probabilities.

Himel concluded:

[326] .... upon a consideration of the evidence as a whole presented on this issue, in my view,

the applicants have established on a balance of probabilities that there are ways in which the risk of violence towards prostitutes can be reduced

.

b) Do the Impugned Provisions Sufficiently Contribute to the Harm Faced by Prostitutes?"

Having concluded that there are indeed practical steps that can be taken to enhance the security of sex workers,, Himel moves on to consider the impact of the three challenged laws on the ability of sex workers to take those steps.

Himel cited testimony about the increase in violence and murder against street prostitutes following the introduction of the Communication Law in 1985. One reason cited for this was the reduced opportunity to screen potential clients, and the tendency to work in more isolated areas.

Outcall work, while legal, is riskier than illegal incall work due to the inability to evaluate the safety of the location beforehand. Some strategies to reduce these risks, such as hiring a driver or bodyguard or meeting and communicating with a client in a public place beforehand, run afoul of the law. Furthermore, the bawdy-house provisions prevent some prostitutes from working in-call, which is the safest way to conduct prostitution. Also mentioned was the general stigma attached to prostitution by the criminal law, and the creation of a conflicting victim/criminal status in the eyes of the police.

On the other hand, "[344] The respondent's experts provided the opinion generally that prostitution is inherently violent, regardless of the legal regime in place or how or where prostitution is practised, citing high rates of violence against prostitutes internationally. Most of their opinions did not deal directly with the legal regime in Canada or its impact, or lack thereof, on violence against prostitutes." Testimony was cited asserting that "legalization of prostitution does not reduce the stigma of prostitution"; that "high levels of dissociation and drug use among street prostitutes interfere with their ability to assess the risk of a potential client"; "female prostitutes would continue to work on the street due to high fees charged to prostitutes at indoor locations, hygiene and age requirements, sexual exploitation by owners, and because drug-addicted women would not be able to show up to work on a regular basis"; "Changing the legality of prostitution does not change the .... systemic power imbalance"' etc.

Judge Himel was critical of the testimony of several of the experts. Nevertheless, she concluded:

[359] Despite the multiple problems with the expert evidence, I find that there is sufficient evidence from other experts and government reports to conclude that

the applicants have proven on a balance of probabilities, that the impugned provisions sufficiently contribute to a deprivation of their security of the person.

[360] I accept that there are ways of conducting prostitution that may reduce the risk of violence towards prostitutes, and that the impugned provisions make many of these "safety-enhancing" methods or techniques illegal. The two factors that appear to impact the level of violence against prostitutes are the location or venue in which the prostitution occurs and individual working conditions of the prostitute.

[361] With respect to s. 210

[the Bawdy House Law]

, the evidence suggests that working in-call is the safest way to sell sex; yet, prostitutes who attempt to increase their level of safety by working in-call face criminal sanction. With respect to s. 212(1)(j)

[Living on the Avails]

, prostitution, including legal out-call work, may be made less dangerous if a prostitute is allowed to hire an assistant or a bodyguard; yet, such business relationships are illegal due to the living on the avails of prostitution provision. Finally, s. 213(1)©

[the Communication Law]

prohibits street prostitutes, who are largely the most vulnerable prostitutes and face an alarming amount of violence, from screening clients at an early, and crucial stage of a potential transaction, thereby putting them at an increased risk of violence.

[362]

In conclusion, these three provisions prevent prostitutes from taking precautions, some extremely rudimentary, that can decrease the risk of violence towards them. Prostitutes are faced with deciding between their liberty and their security of the person. Thus, while it is ultimately the client who inflicts violence upon a prostitute, in my view the law plays a sufficient contributory role in preventing a prostitute from taking steps that could reduce the risk of such violence.

(part 4 - coming tomorrow)

March 21, 2011

THE CHARTER ANALYSIS - SECTION 7 - SECOND STEP

Again, a reminder of the full Section 7 of the Charter:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof

except in accordance with the principles of fundamental justice

.

Accordingly, having concluded in the first step of the Charter Analysis that the applicants have in fact been deprived of their right to liberty and security by the three impugned laws, the second step in the Charter Analysis of the Section 7 challenge must now move on to address the question:

"Are These Deprivations in Accordance with the Principles of Fundamental Justice?"

Note that if they are found to be in accordance with these principles, then the challenge to the laws will fail, even though, as we have seen, they have been found (in Step One of Himel's Charter Analysis) to deprive the applicants of their rights.

The four Principles of Fundamental Justice are:

(1) laws must not

arbitrarily

deprive individuals of their protected rights;

(2) laws must not be

broader than necessary

to accomplish their purpose;

(3) the harmful effects of a law must not be

grossly disproportionate

to the benefits gained; and

(4) the state must legislate

in accordance with the rule of law

.

These four Principles are analyzed by Himel and then applied to the three challenged laws, each in turn:

THE PRINCIPLES OF FUNDAMENTAL JUSTICE - (1) ARBITRARINESS:

Arbitrariness: "In order not to be arbitrary, the limit on life, liberty and security requires not only a theoretical connection between the limit and the legislative goal, but a real connection on the facts."

Justice Himel's analysis, referring back to her earlier conclusions about the legislative objectives of the three laws:

Bawdy-House Laws:

[378] The

bawdy-house provisions

are generally aimed at combating neighbourhood disorder and risks to public health and safety.... Based on the record before me, I am satisfied that there is some evidence that bawdy-houses can cause nuisance to the community; therefore, I find there is at least some real connection on the facts to the objective, and that the provisions are

not arbitrary

.

Living on the Avails:

Living on the Avails

.... [379] .... the legislative objective of this provision is to prevent the exploitation of prostitutes as well as the profiting from prostitution by pimps. Evidence was presented from a number of experts that the effect of this provision is that prostitutes are not able to legally enter into certain business relationships that can enhance their safety .... Such an effect cannot be said to be connected to or consistent with Parliament's objective, as it may actually serve to increase the vulnerability and exploitation of the very group it intends to protect. For these reasons, I find that the living on the avails provision is inconsistent with its objective, and is, therefore,

arbitrary

.

Communication Laws:

[380] The state objective in enacting the

communicating provision

is to "address solicitation in public places and, to that end...eradicate the various forms of social nuisance arising from the public display of the sale of sex" .... The evidence in this case demonstrates that the communicating law has had a minimal impact on reducing street solicitation in public places, merely displacing street prostitution to different areas in some instances ... and has not, consequently, had an appreciable effect on social nuisance .... [383] However, just because a law is largely ineffective does not necessarily mean that it is arbitrary or irrational ....

[Quoting precedent]

Questions about which types of measures and associated sanctions are best able to deter conduct that Parliament considers undesirable is a matter of legitimate ongoing debate. The so-called "ineffectiveness" is simply another way of characterizing the refusal of people in the appellants' position to comply with the law. It is difficult to see how that refusal can be elevated to a constitutional argument against validity based on the invocation of fundamental principles of justice. Indeed, it would be inconsistent with the rule of law to allow compliance with a criminal prohibition to be determined by each individual's personal discretion and taste.

[384] Thus, although I find that the law has only minimally impacted the state's interest, I cannot find that the communicating law bears no relation to, or is inconsistent with, the state's objective. Consequently, the communicating provision is

not arbitrary

.

Are the Impugned Provisions Acting in Concert Arbitrary?

[385] Although I do not find that the bawdy-house provisions are themselves arbitrary, I find that their interplay with the other impugned provisions renders them so. I have found that the safest way to conduct prostitution is generally in-call. The bawdy-house provisions make this type of prostitution illegal. Prostitutes can legally work out-call, which is not as safe, particularly as prostitutes are precluded by virtue of the living on the avails provision from forming certain "safety-enhancing" business relationships (such as hiring a driver or security guard). The other option is for prostitutes to work on the street, which would put them at risk of violating the communicating provision and further contributing to a form of public nuisance. Additionally, putting prostitutes at greater risk of violence cannot be said to be consistent with the goal of protecting public health or safety. Thus, when seen

in conjunction with the other impugned provisions, the bawdy-house provisions are arbitrary

in the sense that they may actually exacerbate the nuisance Parliament intends to eradicate. The evidence .... on the issue of displacement supports the notion that when indoor prostitution is targeted by the police, street prostitution increases (and vice versa).

[386] This evidence was not before the Supreme Court in 1990 when the Court held that the fact that the sale of sex for money is not a criminal act under Canadian law does not mean Parliament must refrain from using the criminal law to express society's disapprobation of street solicitation ....

[387] A similar argument can be made when looking at the

communicating provision in conjunction with the other impugned provisions

. Moving prostitutes "off the streets and out of public view" in order to combat social nuisance may serve to exacerbate the harm that the bawdy-house provisions target if prostitutes are forced to move indoors. Although prostitutes could conduct out-call work legally, it would be at a risk to their safety, particularly as they are precluded from hiring security guards or drivers. Such an outcome cannot be said to be consistent with Parliament's objectives.

[388]

I find the impugned provisions acting in concert are arbitrary

in that

taken together

they are inconsistent with the objective and there is no rational connection between the provisions and their objectives.

(part 5 - coming tomorrow)

March 22, 2011

Understanding Bedford v Canada -- Part 5 of 6

Continuing the second step of the Section 7 Charter Analysis, regarding the issue of whether or not the challenged laws are in accordance with the Four Principles of Fundamental Justice:

THE PRINCIPLES OF FUNDAMENTAL JUSTICE - (2) OVERBROADNESS:

Overbroadness: "Overbreadth analysis looks at the means chosen by the state in relation to its purpose. In considering whether a legislative provision is overbroad, a court must ask the question: are those means necessary to achieve the State objective? If the State, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual's rights will have been limited for no reason."

Justice Himel's analysis, once again referring back to her earlier conclusions about the legislative objectives of the three laws:

Bawdy-House Laws:

Bawdy-House

.... [398] The issue is whether the provisions are necessary to achieve the state objective, which I have found to be

eliminating neighbourhood disorder and a concern for public health and safety

.... [400] The impact on a neighbourhood of a prostitute working independently and discreetly from home, or with another person in order to enhance safety, may be different than the impact of a large "brothel-style" establishment overseen by an owner/manager employing a large number of prostitutes ... [401] To convict a person of a bawdy-house offence, none of the harms the provision is aimed at need to be shown, such as neighbourhood disorder, or threats to public health or safety .... In my view,

because they assign criminal liability to those direct participants of bawdy-house prostitution who do not contribute to the harms Parliament seeks to prevent

, the bawdy-house provisions

are overly broad

as they restrict liberty and security of the person more than is necessary to accomplish their goal.

Living on the Avails:

[402] In considering the

living on the avails

provision in relation to its purpose (

the exploitation of prostitutes and profiting from prostitution by pimps

), it is clear that .... the provision

is overbroad

as

a number of non-exploitative arrangements are caught by this provision

. Accordingly, this provision restricts the liberty of such persons "for no reason" ....

Communication Laws:

Communicating

for the Purpose of Prostitution .... [410] I recognize that the geographical overbreadth argument was rejected by the majority of the Supreme Court in the Prostitution Reference ....

I find that the communicating provision is necessary to achieve the objective of eliminating social nuisance as ... Parliament's aim was to discourage the concentration of prostitution activities in any one area as it was the cumulative effect of public solicitation that produces the social nuisance

..... In my view, the alternatives proposed by the applicant for a narrowly tailored law would have the potential effects of moving prostitution activities to an isolated industrial area or a secluded area of a park. That may result in even more dangerous scenarios with an increase to the harm to the security of the person of prostitutes and may fail to achieve the state's objective of curtailment of visible solicitation.

THE PRINCIPLES OF FUNDAMENTAL JUSTICE - (3) GROSS DISPROPORTIONALITY:

Gross Disproportionality: "... if the use of the criminal law were shown by the appellants to be grossly disproportionate in its effects on accused persons ... the prohibition would be contrary to fundamental justice" ... "[414] The standard is a high one. Fundamental justice is not breached by laws that are merely disproportionate. Legislation must be grossly disproportionate in order to be found unconstitutional. The ultimate question to be answered is whether the legislative measures are, in effect, "so extreme that they are per se disproportionate to any legitimate government interest."

Justice Himel's analysis, always referring back to her earlier conclusions about the legislative objectives of the three laws:

[416] To apply the principle of disproportionality to the case before me, I ask the following questions:

a) Does the law pursue a legitimate state interest?

b) Are the effects of the law so extreme that they are per se disproportionate to the state interest?

[417] The second question has two components:

(1) the consequences of the impugned law (beyond a term of imprisonment) on the claimant, and

(2) the law's effects on the claimant's s. 7 rights.

Bawdy-House Laws:

Bawdy-House

.... [427] The evidence demonstrates that complaints about

nuisance arising from indoor prostitution establishments are rare

. The nuisance targeted includes neighbourhood disruption, and interference with public health and safety. These objectives are to be balanced against the fact that

the provision prevents prostitutes from gaining the safety benefits

of proximity to others, familiarity with surroundings, security staff, closed-circuit television and other such monitoring that a permanent indoor location can facilitate. [428] ....

The provisions drastically infringe upon the applicants' right to security of the person by placing them at a high risk of experiencing violence when practising prostitution outdoors.

Specifically, the laws restrict the applicants' ability to make choices capable of reducing the risk of harm to their well-being under threat of penal sanction. I am of the view that the effects of the bawdy-house provisions on the applicants

are grossly disproportionate

to their purpose.

Living on the Avails:

[429] The

living on the avails

provision

targets the exploitation of prostitutes

and prohibiting others from gaining financially from prostitution. This objective is to be balanced against my conclusion that, by preventing prostitutes from legally hiring bodyguards, drivers, or other security staff, the provision places prostitutes at greater risk of harm and may make it more likely that a prostitute will be exploited. [430] ....

The effect of this provision is to prevent prostitutes from lawfully hiring individuals who may be able to protect them from harm.

Prostitutes may in turn be forced to rely upon individuals who are willing to face criminal sanctions, and may be more likely to be exploited as a result.

The net effect is to make it more likely that a prostitute will be harmed by a client, or in an effort to avoid this, exploited by a pimp.

[431] The provision represents a severe violation of the applicants' Charter rights by threatening their security of the person. The law presents them with a perverse choice: the applicants can safeguard their security, but only at the expense of another's liberty. In my view, the living on the avails of prostitution provision is, in effect,

grossly disproportionate

to its objective.

Communication Laws:

[432] The nuisance targeted by the

communicating provision

includes

noise, street congestion, and the possibility that the practice of prostitution will interfere with those nearby

. These objectives are to be balanced against the fact that the provision

forces prostitutes to forego screening clients

which I found to be an essential tool to enhance their safety .... [434] .... in this case, one effect of the communicating provision (as well as the bawdy-house provisions) is to

endanger prostitutes while providing little benefit to communities. In fact, by putting prostitutes at greater risk of violence, these sections have the effect of putting the larger society at risk on matters of public health and safety.

The harm suffered by prostitutes carries with it a great cost to families, law enforcement, and communities and impacts upon the well-being of the larger society. In my view, the effects of the communicating provision

are grossly disproportionate

to the goal of combating social nuisance.

THE PRINCIPLES OF FUNDAMENTAL JUSTICE - (4) COMPLIANCE WITH THE LAW:

Compliance with the Law: "The rule of law principle of fundamental justice .... holds that the state has an obligation to obey its own laws, and must promote compliance with the law."

Justice Himel's analysis:

[439] In that I have found that the impugned provisions are not in accordance with the principles of fundamental justice, it is not necessary for me to consider whether the impugned provisions also offend this principle. Moreover, I am of the view that

this principle is not applicable to this case

.

(part 6 - coming tomorrow)

March 23, 2011

THE CHARTER ANALYSIS - SECTION 7 - THIRD STEP

Having found in Step One of the Section 7 Analysis that the three challenged laws deprive the applicants of their rights to liberty and security of the person, and having further found in Step Two that the three challenged laws also are not in accordance with the four principles of fundamental justice, the third step in the Section 7 Charter Analysis addresses the question:

Are any of the Section 7 Violations Salvageable by Section 1?

A reminder of what Section 1 of the Charter states:

1. The Canadian Charter of Rights and Freedoms 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

.

Justice Himel notes:

[441]

In the case at bar, where I have found all the impugned provisions to be grossly disproportionate, and some to be arbitrary and overbroad, it is not possible to say that the provisions are proportionate or minimally impair the applicants' rights to liberty and security of the person. I, therefore, find that none of the impugned provisions are saved by s. 1.

THE CHARTER ANALYSIS - SECTION 2(b) - FIRST STEP

Having completed the Section 7 Charter Analysis of all three challenged laws, Justice Himel now moves on to consider the final challenge, which is the challenge under Section 2(b) of the Communication Law.

A reminder of what Section 2(b) of the Charter states:

2. Everyone has the following fundamental freedoms:

.....

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

Justice Himel states:

[443] In 1990, a majority of the Supreme Court of Canada upheld the communicating provision as a reasonable limit on freedom of expression. For the reasons outlined above, I am of the view that the evidence before me requires that this issue be reconsidered.

[444] In 1990, the Supreme Court unanimously found the communicating provision to be a prima facie infringement of s. 2(b) of the Charter. None of the parties to this proceeding made submissions to the contrary. I see no reason to revisit this finding.

THE CHARTER ANALYSIS - SECTION 2(b) - SECOND STEP

Is the Section 2(b) Violation Salvageable by Section 1? (In other words, can the infringement of the applicants' right to freedom of expression be "justified in a free and democratic society"?

Himel states:

[446] ... the Crown bears the burden at this stage to demonstrate that:

(1) the legislative objective serves a pressing and substantial purpose that is sufficiently important to warrant restricting expression, and that

(2) the measures chosen to achieve this objective are in their effect proportionate to the importance of the underlying legislative purpose. This entails three issues:

(1) whether the law is rationally connected to its legislative objective,

(2) whether the means chosen to achieve the objective impair the right as little as possible, and

(3) whether the deleterious effects of the law are outweighed by the importance of the objective and its salutary effects:

[448] The evidence presented in this case affirms the connection between the concentration of street prostitution and this mix of associated ills. I have no difficulty in finding that combating social nuisance is

a valid legislative purpose of pressing and substantial concern.

[462] ... In my view, speech meant to safeguard the physical and psychological integrity of individuals is ... at the core of the constitutional guarantee .... I find that the applicants' need to safeguard their own bodily integrity through communication with customers lies at or near the core of expression s. 2(b) of the Charter seeks to protect.

Justice Himel proceeds with her analysis based on these stated criteria:

Communicating for the Purposes of Prostitution - Rationally Connected to its Objective?

[468] ... [quoting precedent]

The logical way to prevent the public display of the sale of sex and any harmful consequences that flow from it is through the twofold step of prohibiting the prostitute from soliciting prospective customers in places open to public view and prohibiting the customer from propositioning the prostitute likewise in places open to public view.

I conclude that the communicating provision

is rationally connected to its purpose

.

Communicating for the Purposes of Prostitution - Represent a Minimal Impairment of Expressive Freedom?

[471] In my view, as a result of the changed context [since the Prostitution Reference of 1990], the impugned provision can no longer be considered to be sufficiently tailored to its objective and does not meet the minimal impairment test. The expression being curtailed is not purely for an economic purpose, but is also for the purpose of guarding personal security, an expressive purpose that lies at or near the core of the guarantee ... [472] .... I find that the communicating provision does not minimally impair the expressive rights of the applicants and

cannot be upheld as a reasonable limit

under s. 1.

Is there Proportionality Between the Effects and the Objective of s. 213(1)© - Communicating for the Purposes of Prostitution?

[484] The final balancing at this stage moves the analysis

beyond

questioning the law's relationship to its legislative

purpose

. Instead, the purpose is now weighed against the

effects

, both intended and unintended, of the impugned provision. While neither the law nor its purpose have changed since 1990, the available evidence demonstrating the effects of the law has grown in strength and volume in the intervening years. It is on the basis of this change that I proceed to weigh the effect that the communicating provision has on prostitutes against the benefit it confers upon communities ....

a)The Salutary Effects of s. 213(1)© - Communicating for the Purposes of Prostitution

[491] On the issue of the salutary effects of the law, the applicants have presented a great deal of evidence, including a number of reports published by the government, suggesting that the law has not been effective in curtailing the social nuisance associated with prostitution.

[497] The respondent presented evidence from police and community groups to counter the suggestion that the communicating provision is ineffective in curtailing social nuisance. The respondent argued that the provision is regularly used by police forces to successfully reduce the presence of solicitation in specified public places. The respondent also suggested that the communicating law is a useful tool that police use to keep prostitutes away from their pimps and the prostitution environment, and that this can lead to the prostitute leaving the sex industry.

[498] I find, based upon the evidence before me, that the law does not effectively curtail the social nuisance associated with street prostitution. While the law may allow the police to direct prostitutes towards social service supports or capture pimps on occasion,

I conclude that the salutary effects of the communicating provision in combating the social nuisance associated with street prostitution are minimal

.

b)The Deleterious Effects of s. 213(1)© - Communicating for the Purposes of Prostitution

[499] ... The most significant deleterious effect of the communicating provision is that it prevents communications that may reduce the risk of harm to prostitutes.

The communicating law prevents street prostitutes from screening customers, resulting in an increased risk of them being subjected to violence

.

c) The Final Balancing

[504] In my view, in pursuing its legislative objective, the communicating provision so severely trenches upon the rights of prostitutes that its pressing and substantial purpose is outweighed by the resulting infringement of rights. This rights infringement is even more severe given the evidence demonstrating the law's general ineffectiveness in achieving its purpose.

By increasing the risk of harm to street prostitutes, the communicating law is simply too high a price to pay for the alleviation of social nuisance.

[505] The communicating provision, therefore, fails to meet the proportionality test ... I find that s. 213(1)© represents an unjustifiable limit on the right to freedom of expression

JUSTICE HIMEL'S CONCLUSIONS:

[3] ...

three provisions of the Criminal Code that seek to address facets of prostitution (living on the avails of prostitution, keeping a common bawdy-house and communicating in a public place for the purpose of engaging in prostitution) are not in accord with the principles of fundamental justice and must be struck down. These laws, individually and together, force prostitutes to choose between their liberty interest and their right to security of the person as protected under the Canadian Charter of Rights and Freedoms. I have found that these laws infringe the core values protected by section 7 and that this infringement is not saved by section 1 as a reasonable limit demonstrably justified in a free and democratic society.

(coming tomorrow: "In light of these findings - why the Stay?")

March 23, 2011

Interesting to see one person's (Himmel) reasoning. 28,000 pages of evidence zoikes I hope she has good clerks that were able to help her sift through that.

Still one feels this will likely go to the SC or be surperceded by a new Act of Parliament.

March 24, 2011

Justice Susan Himel's ruling of 28 Sept 2010 in the Ontario Superior Court of Justice (outlined in posts 1 thru 6, above) found the three challenged provisions of the Criminal Code of Canada to be unconstitutional, and struck them down. However, Justice Himel at the same time stayed her ruling for 30 days. The stay has since been extended, in stages, until the next stage in the appeal process, that of the Ontario Court of Appeal in June 2011. Until at least then, and in all likelihood until the end of the entire appeals process, however long that may take, the three challenged laws remain in full force and effect.

Why the Stay, given that the rights of the Charter applicants were found to be infringed?

Justic Himel cites legal precedent regarding "[509] .... the twin guiding principles of respect for the role of the legislature and respect for the purposes of the Charter ...". At the same time, citing the same precedent,

"[511] .... a temporary suspension of a declaration of invalidity is a serious matter from the point of view of the enforcement of the Charter" as such a delay "allows a state of affairs which has been found to violate standards embodied in the Charter to persist for a time despite the violation."

(Schachter v. Canada 1992, http://www.canlii.org/en/ca/scc/doc/1992/1992canlii74/1992canlii74.html)

The Crown requested an 18-month stay for two purposes:

1) "in order to allow Parliament a reasonable period of time to enact an appropriate legislative response"; and

2) "to protect public safety in the interim."

The Crown submitted that striking down these three laws would leave a "legal vacuum".

WOULD THERE BE A LEGAL VACUUM?

Justic Himel, however, pointed out that "there are a number of legal provisions capable of addressing many of the harms associated with prostitution", even without the three laws which she has struck down. She lists them (and also provides specific case-examples of them being used):

Legal Vacuum - Public Nuissance?:

[519] There are a number of

Criminal Code

provisions to address the problem of

street disturbances

. Section 175 creates the offence of causing a disturbance, including fighting, indecent exhibition, loitering, and other public nuisance activities. Section 177 prohibits loitering at night on another person's property .... Section 180 creates the offence of common nuisance ....

[520] Unwanted

confrontations

are addressed in the

Criminal Code

as well. Section 264 prohibits criminal harassment through repeated unwanted communications or threatening conduct such that the individual fears for his or her safety ... Section 173 prohibits committing an indecent act in a public place, and s. 174 creates the offence of public nudity ...

[523] There may also be provincial legislation able to offer protection to communities in certain circumstances: see, for example, the

Safe Streets Act

, 1999, S.O. 1999, C. 8.

Legal Vacuum - Protection of Sex Workers?:

In her ruling, Judge Himel pointed out that there are plenty of non-prostitution Sections of the Criminal Code under which true pimps can, and have been, prosecuted and convicted:

[524] In many cases,

attacks against prostitutes by pimps

involve charges laid under both general and specific prostitution-related provisions of the Criminal Code. For example ... kidnapping, forcible confinement, procuring... and uttering threats, where a woman was kidnapped, abused, and forced into prostitution ... robbery, assault, and uttering threats where the complainant was a prostitute.

[525]... a man who had assaulted his girlfriend and forced her to work as a prostitute. He was convicted of kidnapping, for which he received 12 years, use of a firearm in the commission of an offence, for which he received three years consecutive ... and aggravated assault, assault with a weapon, and uttering threats, for which he received concurrent sentences totalling 22 years' imprisonment. ...

[526] In other cases, pimps have been successfully tried without resort to these [unconstitutional] provisions. For example ... a five-year sentence for extortion, three counts of simple assault, and three counts of uttering threats ... after a young woman was forced to attempt to prostitute herself as a result of threats and violence.

[527] In many of these cases, the crime of

uttering threats

found in s. 264.1 of the Criminal Code, punishable by up to five years' imprisonment, is used to punish the exploitive conduct of the pimp. In others, s. 423 (

intimidation

) has been used. This section makes it an offence to use violence or threaten violence or injury to property, intimidate or threaten a person in order to compel them to do something that they have the right to abstain from doing. Intimidation is a hybrid offence; the maximum sentence on indictment is five years' imprisonment. In R. v. Yu 2002 ... convictions for kidnapping, intimidating, assaulting, menacing, beating, and degrading a prostitute to recover a debt were upheld ....

Legal Vacuum - Human Trafficking?:

[533] Introduced in November 2005, s. 279.01

prohibits trafficking in persons

:

279.01(1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence and liable

(a) to imprisonment for life if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or

(b) to imprisonment for a term of not more than fourteen years in any other case.

(2) No consent to the activity that forms the subject-matter of a charge under subsection (1) is valid.

[534] Section 279.02 punishes individuals who

benefit economically from trafficking

in persons and carries a maximum penalty of ten years' imprisonment....

(One might also point out that with the sole exception of 213(1)(j), all provisions of the Procuring Section of the Criminal Code remain in place, since they were not challenged. This includes Living on the Avails of Prostitution of person under eighteen years of age.)

Conclusions:

Justic Himel concludes that there will not be a legal vacuum:

[535] In conclusion, I respectfully reject the argument made by the respondent that a legal vacuum would be created by an immediate declaration of invalidity in this case ...

[538] I find that the danger faced by prostitutes greatly outweighs any harm which may be faced by other members of the public. I, therefore, do not consider that a temporary suspension of a declaration of invalidity is appropriate in this case.

LEGISLATIVE VOID / RESPECT FOR THE ROLE OF PARLIAMENT:

However, Himel does recognize the role of Parliament, and also makes an allusion to what will later be referred to by Justice Rosenberg (see my next post) as the "Legislative Void". Himel grants, not the 18-month stay that the Crown had requested, but a 30-day stay:

[539]

I am mindful of the fact that legislating in response to prostitution raises difficult, contentious, and serious policy issues and that it is for Parliament to fashion corrective legislation.

This decision does not preclude such a response from Parliament. It is my view that in the meantime, these unconstitutional provisions should be of no force and effect, particularly given the seriousness of the Charter violations. However,

I also recognize that a consequence of this decision may be that unlicensed brothels may be operated and in a way that may not be in the public interest. It is legitimate for government to study, consult and determine how to best address this issue. In light of this, I have determined that a stay of my decision for up to 30 days should be granted to enable the parties to make fuller submissions to me on this question or to seek an order for a stay of my judgment

.

(tomorrow: "Why the Stay? Part 2 - extending the stay)

Miss Scarlett · March 24, 2011

Justice Susan Himel's ruling of 28 Sept 2010 in the Ontario Superior Court of Justice

It's not midnight yet?

Your early tonight! haha

I purposely stay up to read these! haha

March 24, 2011

Your early tonight! haha ...

ha ha ... Scott posted since my own last post, so I didn't have to wait for the full 24 hours to expire before I could post again ... so I thought I'd see if anyone else was paying attention ... ha ha

Miss Scarlett · March 24, 2011

Well I am paying attention getting ready to read my midnight luxury! haha

That someone spoiled for me! haha

Just kidding WIT!

I love to read your posts.

ha ha ... Scott posted since my own last post, so I didn't have to wait for the full 24 hours to expire before I could post again ... so I thought I'd see if anyone else was paying attention ... ha ha

SamanthaEvans · March 24, 2011

I'll say, once again, WiT, that this is such a valuable thread. Thank you for putting the time, care and attention into summarizing the Himel decision for all of us. I know I learned some important things and I'm very grateful for it!

March 25, 2011

In practice, the original stay of 30 days was extended by Justice Himel to 60 days. Himel stated the reasons for this in her decision of 15 Oct 2010:

[2] I expressed to counsel that I was concerned about extending the period of stay in light of my findings that the impugned provisions were being rarely enforced or were ineffective and that the law as it stands is currently contributing to danger faced by prostitutes. However,

because all the parties consented and the extension was only for an additional thirty days

, I am exercising my discretion and granting a stay of my judgement ... for an additional thirty days.

It was reported in the news media that Alan Young, lawyer for Bedford et al ...

... has approached the Crown with a deal to lengthen the stay until February if the Crown can get a hearing date before the Ontario Court of Appeal by then.

"

It's a small price to pay to get this thing heard quickly because if I don't do things like this we may not get a decision for more than five years

," Young said. He hopes to get it to the top court in two years.

Young said he will oppose further stays.

If Himel's decision is upheld he expects the Crown to appeal, and if it is overturned he expects to appeal. He added it is in everybody's best interest to expedite this case.

"Police have to know whether they can charge people. A legal limbo is the worst of all possible worlds."

http://www.thestar.com/news/article/874306--lawyer-seeks-to-speed-prostitution-case-to-top-court

Subsequently (as we shall see in detail, below), following a hearing on 22 Nov 2010, Ontario Court of Appeal Justice Marc Rosenberg issued a ruling dated 2 Dec 2010 which stayed the effect of Judge Himel's order until 29 April 2011. The stay was recently extended until the Ontario Court of Appeal hearing in June 2011.

Why the EXTENSION of theStay, given that the rights of the Charter applicants were found to be infringed?

In a statement made to the media regarding the November hearing, Alan Young, lawyer acting on behalf of the respondents, said of Justice Rosenberg: "No judge wants to be responsible for chaos, and that's what's been put on the table (by the Crown)", and noted that Rosenberg had to make a very difficult decision without being able to examine all of the evidence that led to the laws being struck down. The accuracy of Young's evaluation will be seen in the weight given to the "Legislative Void" by Rosenberg in his decision, as seen below.

THE HEARING BEFORE THE ONTARIO COURT OF APPEAL, 22 NOV 2010

Justice Marc Rosenberg heard arguments in the Ontario Court of Appeal on 22 Nov 2010 about whether or not the stay of Justice Himel's decision should be extended beyond the 60 days that Justice Himel had granted.

http://www.ontariocourts.on.ca/decisions/2010/december/2010ONCA0814.pdf

Justice Rosenberg summarizes the position of the two parties:

[4]

The fundamental submission of the moving party and the Attorney General of Ontario on this motion is that the judgment creates a legislative void that has profound implications for the public interest.

They argue that the judgment should be stayed until this court can conduct a full review of the decision.

The responding parties submit that the government evidence of harm to the public interest if a stay is not imposed is speculative.

Counsel submits that only after the judgment has been in place for some time will it be possible to measure the impact; in effect, the motion is premature and the court should wait and see what happen.

Further, the responding parties submit that there would be substantial harm if the judgment is stayed because to do so would perpetuate the law's contribution to violence against a vulnerable population

.

When considering the extension of the stay, Justice Rosenberg emphasizes that he must follow a different set of legal precedents than did Justice Himel in her ruling. The legal precedent that he must follow is that which deals with the granting of stays. The precedent to be considered is that of RJR-MacDonald Inc. v. Canada (1994). In this case,

[7] ... the Supreme Court of Canada has warned against a judge, hearing a stay motion, attempting to ascertain whether

actual

harm will result from the stay .... the context is the

prima facie

right of the government to a full review of the first-level decision and, as I will explain, the

presumption

of irreparable harm if the judgment is not stayed pending that review.

[9]

The test for granting a stay pending appeal

is set down in

RJR-MacDonald

. The court must be satisfied that:

(i) There is a

serious issue

to be tried;

(ii) The party seeking the stay would suffer

irreparable harm

should the stay not be granted; and

(iii) The

balance of convenience and public interest considerations favour

a stay.

Since there is no dispute that there is a serious issue to be tried, the analysis of this case will focus on the issues of "irreparable harm" and "balance of convenience and public interest".

THE LEGISLATIVE VOID - IRREPARABLE HARM?

Justice Rosenberg notes:

[66] The applicant and the responding parties spent some time in argument about whether the government was entitled to a

presumption of irreparable harm.

The concept of such a presumption "in most cases" was enunciated in

RJR-MacDonald

, where the court held ....

The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation, or activity was undertaken pursuant to that responsibility

....

[72]... "irreparable" refers to "the

nature

of the harm suffered rather than its magnitude" ...

Furthermore, although "[69] ... The responding parties argue ... that the harm is ... speculative and tentative ... [72] I am satisfied that the moving party has satisfied the irreparable harm test. While some of the evidence relied upon is somewhat speculative, that is the nature of the irreparable harm test in a case, like this, where the harm is not measured in monetary terms."

To avoid repetition, the evidence just alluded to here will be examined more closely in the next section:

THE LEGISLATIVE VOID - WHERE LIES THE BALANCE OF CONVENIENCE AND PUBLIC INTEREST?

Justice Rosenberg explains this pivotal test:

[12] At the balance of convenience stage, I must determine

which of the two parties will suffer the greater harm

from the granting or refusal of the stay ... In constitutional cases, the public interest is a "special factor" that must be considered in assessing where the balance of convenience lies ....

[13] Therefore, unlike the application judge [Himel], I must determine whether a stay should be granted in a context where ....

the responding parties must demonstrate that suspension of the legislation would provide a public benefit to tip the public interest component of the balance of convenience in their favour

.

Balancing - on the one hand:

[14] This application is particularly difficult because of the findings made by the application judge concerning the link between the impugned provisions and the

violence suffered by prostitutes

....

[16] ... maintaining the status quo will leave in place a legislative framework that the application judge found seriously impacts on the physical security of a group of people, mostly women, who are pursuing an occupation that is not per se illegal. While it is not my task to review the correctness of the application judge's decision, I cannot simply ignore those findings as they may inform the test for granting a stay ...

Balancing - on the other hand:

[15] There are obvious advantages to maintaining the status quo by staying the judgment. A stay will minimize public confusion about the state of the law in Ontario; for the time being the law in Ontario will be the same as in the rest of Canada.

The police will be able to continue to use the tools associated with enforcement of the law that they say provides some safety to prostitutes

, especially those working on the streets. The various levels of government will have the opportunity, should they choose to do so, to consider

a legislative response to the judgment, which might be better informed following a full review by this court of the application judge's decision.

Further, if a legislative response is required, sufficient time is needed because a response may be difficult to design not only because of the complexity of the issues surrounding prostitution but because of the uncertainty of the role of the province and municipalities in light of the Supreme Court of Canada's decision in Westendorp v. The Queen, [1983] 1 S.C.R. 43. In that case, the court struck down a municipal by-law directed at control of street prostitution.

(tomorrow: Why the Stay? Part 3 - Evidence regarding the Legislative Void)

Miss Scarlett · March 25, 2011

haha 2 days in a row before Midnight!

I like staying up to read this, and now I have no excuse!

WIT your killing me here! hehe

Pink Kitty Escorts · March 25, 2011

So a question.. If the Conservatives fall and this goes to an election in May. And the liberals gain power.. What then? How will this affect the hearing coming up?

SamanthaEvans · March 25, 2011

It doesn't. What happens in terms of federal and provincial elections doesn't stop what happens in court. The appeal of the Bedford decision will be heard in June. It will take months before the Ontario Court of Appeal issues a decision. I think they have up to six months to do that. Whatever the judgment is, it's likely to be appealed by one side or the other to the Supreme Court of Canada. Provincial legislatures and Parliament can enact new laws, but they're not likely to do so while this matter is before the courts.

March 26, 2011

THE LEGISLATIVE VOID - THE CROWN'S EVIDENCE:

Essentially, as we shall see, in his weighing of the issue, Rosenberg relies heavily on the affidavits made by two law-enforcement officers, as well as the affidavits of two community associations, the Parkdale Community in Toronto and the Hintonburg community near Ottawa. While Rosenberg states "[38] Admittedly, some of that evidence is less than compelling", and dismisses much of the officer's testimony as problematic and unsupported, the respondents did not choose to cross-examine or challenge their testimony.

The key to the claims put forward by the Crown's witnesses is the question of what might happen in the short term, if the three unconsitutional laws were immediately set aside. Rosenberg summarizes the key point of the Crown's application for an extension of the stay:

[25] The focus of the government evidence on this application is

the impact of a legislative void if the police are deprived of the power to investigate the impugned offences

....

Rosenberg takes note that "[43] The application judge [Himel] reviewed in her reasons at paras. 514 to 535 the many other Criminal Code provisions that, in her view, would be available to investigate these other offences" (see my previous post for these). The two law enforcement officers who provided testimony for the Crown, on the other hand, claimed that "many of these provisions would not be as effective" in supporting investigations. As we shall see, the argument that the police need time (time that a stay would provide for them) to figure out how to use the other Criminal Code provisions to do their job at a practical level is what will ultimately sway Rosenberg to decide to grant an extension of the stay.

(i) The Legislative Void and The Communication Law:

The harms to which the Attorney General points in relation to the sudden loss of the Communication Law are the police's "Inability to protect vulnerable neighbourhoods from nuisance associated with street prostitution", the "Inability to assist prostitutes through investigative detention", and the "Inability to continue the John School diversion programme".

[77] The evidence establishes that it is

the short-term consequences

of an inability to enforce this prohibition that will have the most deleterious impact on vulnerable communities such as Parkdale and Hintonburg. The nature and ability to implement a short-term, constitutional federal response, in light of the application judge's findings and the complexity of the issues, is far from clear ...

[78] I appreciate the compelling evidence placed before the application judge that street prostitution is the most dangerous form of prostitution and that the communicating provision contributes to the risk of harm...

the police also say that they use the communicating provision to intervene to attempt to mitigate the harm

...

(ii) The Legislative Void and The Bawdy House Law:

The harm to which the Attorney General points in relation to the sudden loss of the Bawdy House Law is the police's "Inability to use the bawdy-house provision to initiate 'multi-layered' investigations into crimes against prostitutes such as human trafficking, extortion, assault, threatening, exploitation and procuring."

[57] Accepting the application judge's identification of the harm from enforcement of the bawdy-house provision, I must also take into account that there is no evidence from the responding parties as to how,

in the relatively short time before this appeal is heard

, and in the absence of any regulatory regime, the safety of prostitutes will be measurably increased by suspending the bawdy-house provisions.

[83] The evidence of the responding parties' witnesses, Dr. Benoit and Dr. Shaver, relied upon by the Attorney General of Ontario, is that simple repeal of the bawdy-house prohibition will not maximize the safety of prostitutes. The extensive review, conducted by the application judge, of

the legislative framework in other western democracies shows that decriminalization has been accompanied

, with varying degrees of success,

by a regulatory scheme or improved social supports

...

(iii) The Legislative Void and The Living on the Avails Law:

The harm to which the Attorney General points in relation to the sudden loss of the Bawdy House Law is the police's "Inability to use living on the avails charges as a means of interrupting human trafficking and other serious criminal offences."

[61] The application judge found that the living on the avails provision infringed the Charter rights of prostitutes and exposed them to risk of serious harm because, as interpreted by the courts, the provisions prevent prostitutes from taking steps to protect themselves such as allowing the prostitute to hire an assistant or bodyguard .... The affidavits of the officers meet this issue to some extent by stating that, in their experience,

charges are only laid in circumstances where the police believe there is evidence of exploitation

...

(iv) The Overall Impact of the Legislative Void:

[62] Both Staff Sergeant Cowan and Inspector Page provided information on the overall impact of a declaration of invalidity with respect to all three provisions. The general import of these parts of the affidavits was that

the police would have to abandon all ongoing investigations, that "red light districts" and street prostitution would proliferate, and that pimps and others would be free to exploit and victimize vulnerable women and children.

Staff Sergeant Cowan and Inspector Page also explained in some detail why investigations into offences under other provisions of the Criminal Code would not provide viable alternatives ....

[64]

While I found some of the claims somewhat overblown

, particularly the claim that "all" ongoing investigations would have to be abandoned, the unchallenged evidence from these experienced police officers as to the

short term harm

that would occur cannot be ignored.

This, it seems to me, is the strength of the governments' claim on irreparable harm and balance of convenience. The invalidity of the impugned provisions would leave unregulated an area of activity that is associated with serious potential short-term harm to communities. Municipalities and provincial governments would not be able to

quickly

respond with a regulatory framework that would be necessary to address some of the harms that the application judge recognized in her reasons.

Further, as ineffective and perhaps counter-productive as some of the enforcement of the s. 213(1)© [Communication] offence may be,

it is unclear whether the police would be able to quickly develop lawful strategies to respond to the legitimate concerns of the public,

like those identified by the community members from Parkdale and Hintonburg.

Also, from the legislative, rather then law-enforcement, perspective:

[71] ... The government argues that even if some decriminalization was seen as an appropriate response to the danger faced by prostitutes,

governments at all levels need time to put a suitable regulatory framework in place

.

The respondents, in turn, did not challenge the assertions made in the Crown evidence by the law-enforcement officials. Justice Rosenberg mentioned this on a number of occasions.

Rosenberg, in the end, in effect accepts the Crown's argument that the police need time (time that a stay would provide) to figure out how to use the other Criminal Code provisions to do their job at a practical level.

[82] The responding parties did not suggest that I could not consider this kind of harm to the public interest ... [83] Admittedly, I have found some of the government's evidence of harm less than compelling.

My principal concern, however, is with the regulatory void, a matter also referred to by the application judge

. In that respect, I am concerned about the suggestion from counsel for the responding parties that the stay simply be lifted and to see what would happen. I cannot accept that this approach is in the public interest.

[80]

Police charging practices may not be relevant to whether the legislation meets minimum constitutional standards .... That evidence may, however, assist in measuring the magnitude of the short-term harm should the judgment be stayed.

Further, the respondent put little evidence before me of the benefit of a temporary suspension in the context of a regulatory void [to balance against the Crown's evidence of the potential harms of a regulatory void] ...

Justice Rosenberg concludes:

[5] .... I am satisfied that it is in the public interest that the judgment be stayed for a relatively short period to permit appellate review of the decision. Accordingly,

the judgment will be further stayed

until April 29, 2011.

SamanthaEvans · March 26, 2011

Wrinkled in Time, you've done an incredible amount of work, here--over 12,000 words by my count, carefully explained and beautifully outlined. This is a very valuable resource for all of us.

So, what I want to know is, What do you think? By and large, Appeal Courts are reluctant to overturn lower court decisions. After your close reading, examination and condensation, what are the strengths and weaknesses in the decisions of Justices Himel and Rosenberg, in your opinion? What will you be watching for in the Appeal in June and in the OCA decision when it's released? I think we're all pleased that Justice Himel overturned the three laws related to communicating, bawdy houses and living on the avails. Do you have any inkling about what may happen next?

March 26, 2011

... This is a very valuable resource ...

Thank you!

... What do you think? ...

ha ha ... I think that I am neither a lawyer nor a seer.

There are plenty of discussion threads on Cerb about this case, on which I have posted some of my personal opinions. It is evident from the debate on these threads that not everyone is pleased that these laws have been found to be unconstitutional. Many believe and/or fear that the ultimate downfall of these laws would be the catalyst for the introduction of a more Draconian legal regime surrounding Sex Work in Canada. I myself fall into the camp of the cautious optimists.

My hope is that this current thread might stand somewhat apart from the debate on the other Cerb discussion threads about this case. My aim here was to provide a sort of neutral reminder of the complexities that are inherent in a case such as this - complexities both in the jurisprudence surrounding the Charter, and in the large body of conflicting factual evidence which the appellate courts have been called upon to evaluate.

So I wasn't intending to publish my opinion here, as it might nudge this thread in the direction of becoming just another confusing debate-thread.

However, at the risk of doing just that:

As a non-lawyer, I am not foolish enough to believe that I can say anything really intelligent about the nitty-gritty of the legal and evidentiary issues. I confess to having an on-again, off-again slightly seasick feeling when it comes to the overall weighing of the rights of Parliament and the purported interests of society ... while being tossed about on the heaving seas of conflicting factual evidence. I've not been driven to hanging over the rails of the ship and wretching, though. Potential rough spots that spring to mind include the question of demonstrating the objectives of the impugned laws, from which much of the rest of the reasoning is driven.

Every time the "balance of probabilities" is mentioned by Himel, the quesion arises about where other justices might have situated, or will see fit to situate, that balance. Again, I'm not a lawyer. But I can count plenty of places where, as far as I know, this chain of reasoning could possibly fall apart - not because I know enough to identify any specifically-perceived flaws, but because I just plain don't know enough to feel sure about things. I will not be surprised at any higher-court developments, be they favourable or unfavourable. I'm no more prescient that the next guy.

I will venture to say that Justice Himel's decision was cohesive and well-written. Justice Rosenberg's seemed to fall short of this standard of writing, but I can hardly begrudge him that, given the tight timetable he was working with.

I will not be in the court in June, so all I'll have is the media reports to glean tidbits from. The OCA ruling when it's released will be something to chew on, no doubt. Justice Himel, although she would have had the resources of the Ontario Superior Court to draw upon, was after all only one justice, although she has had the opportunity to be the first to map the battlefield. It will be interesting to see how the five justices of the OCA will rule, and how cohesively they do it.

This case will obviously wind up in the Supreme Court of Canada, the ultimate authority. (It might be noted that from 2000 to 2010, the SCC issued 848 judgements - 401 appeals were allowed, and 447 were dismissed (http://www.scc-csc.gc.ca/stat/html/cat4-eng.asp) The OCA apparently has a comparatively good track record of having their judgements upheld).

I have elsewhere expressed my uninformed opinion about the direction of certain recent SCC rulings and splits among the Justices (R. v. Sinclair, 2010 SCC 35 for example - on the issue of right to counsel), and have done the math on three upcoming mandatory retirements in 2013 (Fish) and 2014 (Binnie and LeBel). Will Bedford v. Canada arrive in the Supreme Court before these retirements? If not, will the three new Justices be Conservative-appointees, or otherwise? Will they be literalist or activist in their interpretation of the constitution and legal precedent? This issue may be the most urgent impetus driving Alan Young's stated desire to expedite the case to the SCC within the next two years. (This is my own opinion - since I have not heard it voiced by anyone else, I may be completely out in left field.)

I believe that there is little stomach in Parliament to go-ahead and legislate the right Prostitution Laws (it's no secret that I myself am partial to the New Zealand model), despite the findings of Parliamentary studies which have consistently pointed them in the right direction. I also hope that neither is there stomach for Parliament to legislate the wrong thing. But the future of Prostitution Law in Canada (following any SCC Ruling which might ultimately uphold Himel) is obviously very much up in the air. Including the potential use of the "Notwithstanding Clause", which can be used to override the particular sections of the Charter which are at issue in this case. It would obviously be very dependent on which party held sway in Parliament. If Himel's ruling is ultimately upheld, the real battle will begin in the arena of politics ... and political activism. This means us.

wellie · March 27, 2011

If Himel's ruling is ultimately upheld, the real battle will begin in the arena of politics ... and political activism. This means us.

A perfect way to sum up a complicated issue. I agree completely with your conclusion.

Phaedrus · March 27, 2011

Wrinkled in Time, you've done an incredible amount of work, here--over 12,000 words by my count, carefully explained and beautifully outlined. This is a very valuable resource for all of us

Couldn't have said it better myself. WIT, I have no idea how long it took you to put this tour de force together, but I stand in awe of your knowledge and thoroughness. And very grateful, too.

Cato · March 30, 2011

Thank you, WIT, for these most impressive contributions, clear and comprehensive.

Two Thirty · October 8, 2011

I noticed a news article that appeared yesterday, here...

http://www.canada.com/news/Insite+ruling+could+affect+Canada+anti+prostitution+laws/5519058/story.html

I found the article noteworthy, because it suggests the logic underpinning the recent SCC ruling that will keep the Insite injection site in Vancouver open could be successfully applied to void Canada's anti- prostitution laws.

I hope so!

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