Reference re ss. 193 and 195.1(1)(C) of the criminal code (Man.)

Reference re ss. 193 and 195.1(1)(C) of the criminal code (Man.)
Collection
Supreme Court Judgments
Date
1990-05-31
Report
[1990] 1 SCR 1123
Case number
20581
Judges
Dickson, Robert George Brian; McIntyre, William Rogers; Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John
On appeal from
Manitoba
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 20581
Decision Content
Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123
IN THE MATTER OF The Constitutional Questions
Act, being chapter C180, C.C.S.M.
and
IN THE MATTER OF A REFERENCE pursuant thereto
by the Lieutenant Governor in Council to the
Court of Appeal for Manitoba for hearing and
consideration of questions relating to the
Canadian Charter of Rights and Freedoms , being
Part I of the Constitution Act, 1982 and the
Criminal Code of Canada, being C‑51, and
sections 193 and 195.1(1)(c) thereof
and
Jeffrey J. Gindin, on behalf of the Contradictor
appointed by Order of the Chief Justice
of Manitoba, and Mary‑Jane Bennett, on behalf of
Darlene Kent, added as Contradictor by Order of
the Chief Justice of Manitoba Appellants
v.
The Attorney General of Manitoba Respondent
and
The Attorney General of Canada,
the Attorney General for Ontario,
the Attorney General for Saskatchewan,
the Attorney General for Alberta,
the Attorney General of British Columbia
and the Canadian Organization for the
Rights of Prostitutes Interveners
indexed as: reference re ss. 193 and 195.1(1)(c) of the criminal code (man.)
File No.: 20581.
1988: December 1, 2; 1990: May 31.
Present: Dickson C.J. and McIntyre*, Lamer, Wilson, La Forest, L'Heureux‑Dubé and Sopinka JJ.
on appeal from the court of appeal for manitoba
Constitutional law -- Charter of Rights -- Fundamental justice ‑‑ Vagueness -- Criminal Code prohibiting under s. 195.1(1) (c) communications in public for the purpose of prostitution and under s. 193 the keeping of common bawdy‑houses -- Whether ss. 193 and 195.1(1)(c) of the Code impermissibly vague -- Whether ss. 193 and 195.1(1)(c) infringe s. 7 of the Canadian Charter of Rights and Freedoms -- If so, whether limit imposed by ss. 193 and 195.1(1) (c) upon s. 7 justifiable under s. 1 of the Charter ‑‑ Whether s. 7 protects economic rights.
Constitutional law -- Charter of Rights -- Freedom of expression ‑‑ Criminal Code prohibiting under s. 195.1(1) (c) communications in public for the purpose of prostitution and under s. 193 the keeping of common bawdy‑houses -- Whether ss. 193 and 195.1(1)(c) of the Code infringe s. 2 (b) of the Canadian Charter of Rights and Freedoms -- If so, whether limit imposed by ss. 193 and 195.1(1) (c) upon s. 2 (b) justifiable under s. 1 of the Charter .
Criminal law -- Prostitution -- Keeping common bawdy‑house ‑‑ Criminal Code prohibiting under s. 195.1(1) (c) communications in public for the purpose of prostitution and under s. 193 the keeping of common bawdy‑houses -- Whether ss. 193 and 195.1(1)(c) of the Code infringe ss. 2 (b) and 7 of the Canadian Charter of Rights and Freedoms -- If so, whether limit imposed by ss. 193 and 195.1(1) (c) upon ss. 2 (b) and 7 justifiable under s. 1 of the Charter .
The Lieutenant Governor in Council of Manitoba referred to the Court of Appeal of that province several constitutional questions to determine whether s. 193 or s. 195.1(1) (c) of the Criminal Code , or a combination of both, violates s. 2 (b) or s. 7 of the Canadian Charter of Rights and Freedoms ; and, if so, whether either one or a combination of both can be justified under s. 1 of the Charter . Section 193 prohibits the keeping of a common bawdy‑house and s. 195.1(1) (c) prohibits a person from communicating or attempting to communicate with any person in a public place for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute. The Court of Appeal answered that s. 193 or s. 195.1(1) (c), or a combination of both, was not inconsistent with s. 2 (b) or s. 7 of the Charter .
Held (Wilson and L'Heureux‑Dubé JJ. dissenting): The appeal should be dismissed. Section 193 of the Code, separately or in combination with s. 195.1(1)(c), is not inconsistent with s. 2 (b) of the Charter . 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 . Sections 193 and 195.1(1) (c), separately or in combination, are not inconsistent with s. 7 of the Charter .
Per Dickson C.J. and La Forest and Sopinka JJ.: Section 195.1(1)(c) of the Code, but not s. 193, represents a prima facie infringement of s. 2 (b) of the Charter . The scope of freedom of expression does extend to the activity of communication for the purpose of engaging in prostitution.
The limits on freedom of expression imposed by s. 195.1(1)(c) of the Code are justifiable under s. 1 of the Charter . Section 195.1(1) (c) is aimed at taking solicitation for the purposes of prostitution off the streets and out of public view and, to that end, seeks to eradicate the various forms of social nuisance arising from the public display of the sale of sex. These include street congestion, noise, harassment of non‑participants and general detrimental effects on passers‑by or bystanders, especially children. The legislation, however, does not attempt, at least in any direct manner, to address the exploitation, degradation and subordination of women that are part of the contemporary reality of prostitution. The elimination of street solicitation and the social nuisance which it creates is a government objective of sufficient importance to justify a limitation on the freedom of expression guaranteed by s. 2 (b) of the Charter .
Further, the activity to which the impugned legislation is directed is expression with an economic purpose. Communications regarding an economic transaction of sex for money do not lie at, or even near, the core of the guarantee of freedom of expression. Considering the nature of the expression and the nature of the infringing legislation, the means embodied in s. 195.1(1)(c) of the Code are appropriately tailored to meet the government's objective. First, there is a rational connection between the impugned legislation and the prevention of the social nuisance associated with the public display of the sale of sex. Second, s. 195.1(1)(c) is not unduly intrusive. Although s. 195.1(1)(c) is not confined to places where there will necessarily be many people who will be offended by street solicitation, the section is not overly broad because the objective of the provision is not restricted to the control of actual disturbances or nuisances but extends to the general curtailment of visible solicitation for the purposes of prostitution. Also, the definition of communication may be wide but the courts are capable of restricting the meaning of "communication" in its context by reference to the purpose of the impugned legislation. Third, the effects of the legislation on freedom of expression are not so severe as to outweigh the government's pressing and substantial objective. The curtailment of street solicitation is in keeping with the interests of many in our society for whom the nuisance‑related aspects of solicitation constitute serious problems. A legislative scheme aimed at street solicitation must be, in view of this Court's decision in Westendorp, of a criminal nature.
Given the possibility of imprisonment contemplated by ss. 193 and 195.1(1)(c) of the Code, these sections, separately or in combination, clearly infringe the right to liberty of the person included in s. 7 of the Charter , but such infringement is effected in accordance with the principles of fundamental justice. While vagueness should be recognized as contrary to the principles of fundamental justice, ss. 193 and 195.1(1) (c) are not so vague as to violate the requirement that the criminal law be clear. The terms "prostitution", "keeps" a bawdy‑house, "communicate" and "attempts to communicate" are not so imprecise, given the benefit of judicial interpretation, that their meaning is impossible to discern in advance. Further, the fact that street solicitation is criminalized while prostitution per se remains legal does not offend the basic tenets of our legal system. Unless or until this Court is faced with the direct question of Parliament's competence to criminalize prostitution, nothing prohibits Parliament from using the criminal law to express society's disapprobation of street solicitation.
Per Lamer J.: Section 195.1(1)(c) of the Code restricts freedom of expression as guaranteed by s. 2 (b) of the Charter . Section 2 (b) protects all content of expression irrespective of the meaning or message sought to be conveyed. Most forms of expression are protected as well and the mere fact that a form has been criminalized does not take it beyond the reach of Charter protection. Only activities which convey a meaning or a message through a violent form of expression that directly attacks the physical liberty and integrity of another person would not be protected by s. 2 (b). Where, as in this case, an activity conveys or attempts to convey a meaning or message through a non‑violent form of expression, this activity falls within the sphere of conduct protected by s. 2 (b). The government's purpose in enacting s. 195.1(1) (c) was to prohibit a particular content of expression and to prohibit access to the message sought to be conveyed. Section 195.1(1) (c) therefore imposed a limit on s. 2 (b). In respect of s. 193 of the Code, since the appellants argued that s. 2 (b) was violated by the combination of ss. 193 and 195.1(1) (c), there is no need to rely on s. 193 to reach the conclusion that a freedom under the Charter has been restricted.
Section 195.1(1)(c) of the Code constitutes a reasonable limit upon freedom of expression. The section was designed to prevent the nuisances caused by the public solicitation of prostitutes and their customers, including traffic congestion and general street disorder; to restrict the criminal activities related to prostitution such as possession and trafficking of drugs, violence and pimping; and also to control prostitution by minimizing the exposure to street solicitation of uninterested individuals, specially the young girls who could be lured into prostitution, an activity degrading to women, exploitive and, in some cases, dangerous. These legislative objectives are of sufficient importance for the purpose of s. 1 of the Charter to justify limiting freedom of expression. The means chosen by the government are also proportional to the objectives. First, the scheme set out in s. 195.1(1)(c) of the Code is rationally connected to the legislative objectives of curbing nuisances and related criminal activities associated with public solicitation for the purpose of prostitution. Second, s. 195.1(1)(c) interferes as little as possible with freedom of expression. While s. 195.1(1)(c) applies to all forms of communication, it is limited to communications made in public for the purpose of prostitution. This link between place and purpose in the legislation is reflective of the tailoring of the means used to the legislative objective of preventing the mischief that is produced by the public solicitation of sexual services. Parliament was faced with a myriad of views and options from which to choose of dealing with the problem of street solicitation for the purpose of prostitution and it is not the role of this Court to second‑guess the wisdom of policy choices made by the legislator. Third, when one weighs the nature of the legislative objectives against the extent of the restriction on the freedom of expression, there is no disproportionality between the effects of s. 195.1(1) (c) and its objectives.
Sections 193 and 195.1(1)(c) of the Code do not infringe s. 7 of the Charter . While these sections have the potential to deprive one of liberty and security of the person upon conviction, they are not so vague as to offend the principles of fundamental justice. In neither case can it be said that fair notice of what is proscribed is not given to citizens. Courts in the past have been able to give sensible meaning to the terms used in these sections and have applied them without difficulty. This is indicative of an ascertainable standard of conduct. The discretion of law enforcement officials is thus sufficiently limited by the explicit legislative standards set out in the sections.
While prostitution is not illegal in Canada, ss. 193 and 195.1(1)(c) of the Code do not infringe prostitutes' right to liberty in not allowing them to exercise their chosen profession, or their right to security of the person in not permitting them to exercise their profession in order to provide the basic necessities of life. The rights to liberty and security of the person included in s. 7 of the Charter do not encompass the right to exercise a chosen profession. Section 7 , like the rest of the Charter , with the possible exception of s. 6(2) (b) and (4) , does not concern itself with economic rights. Section 7 is mainly concerned with the restrictions on liberty and security of the person which occur as a result of an individual's interaction with the justice system and its administration. Section 7 is implicated: when the state, by resorting to the justice system, restricts an individual's physical liberty in any circumstances; when the state restricts individuals' security of the person by interfering with, or removing from them, control over their physical or mental integrity; and, finally, when the state, either directly or through its agents, restricts certain privileges or liberties by using the threat of punishment in cases of non‑compliance. A generous interpretation of the Charter that extends the full benefit of its protection to individuals is achieved without the incorporation of all other rights and freedoms in the Charter within s. 7 .
Per Wilson and L'Heureux‑Dubé JJ. (dissenting): Section 195.1(1)(c) of the Code infringes the guarantee of freedom of expression in s. 2 (b) of the Charter . Commercial expression is protected by s. 2 (b) and s. 195.1(1) (c) prohibits persons from communicating for an economic purpose ‑‑ namely, the sale of sexual services. Where, as in this case, the state is concerned about the harmful consequences that flow from communicative activity with an economic purpose and where, rather than address those consequences directly, the legislature simply proscribes the content of communicative activity, the provision, if it is to be upheld, must be justified as a reasonable limit under s. 1 of the Charter .
Section 193 of the Code, either on its own or in combination with s. 195.1(1)(c), does not infringe the guarantee of freedom of expression. Section 193 deals with keeping or being associated with a common bawdy‑house and places no constraints on communicative activity in relation to a common bawdy‑house. The word "expression" in s. 2 (b) is not so broad as to capture activities such as keeping a common bawdy‑house.
Section 195.1(1)(c) of the Code is not justifiable under s. 1 of the Charter . Section 195.1(1) (c) was not designed to criminalize prostitution per se or to stamp out all the ills and vices that flow from prostitution such as drug addiction or juvenile prostitution. The legislation was designed only to deal with the social nuisance arising from the public display of the sale of sex. The high visibility of this activity is offensive and has harmful effects on those compelled to witness it, especially children. While the legislative objective is sufficiently important to warrant overriding a constitutional freedom, s. 195.1(1) (c) fails to meet the proportionality test. The measures are rationally connected to the prevention of public nuisance caused by street solicitation, but s. 195.1(1) (c) is not sufficiently tailored to the objective and constitutes a more serious impairment of the individual's freedom than the avowed legislative objective would warrant. The prohibition is not confined to places where there will necessarily be lots of people to be offended or inconvenienced by it, and no nuisance or adverse impact of any kind on other people need be shown, or even be shown to be a possibility, in order that the offence be complete. Further, the broad scope of the phrase "in any manner communicate or attempt to communicate" seems to encompass every conceivable method of human expression. Some definitional limits would appear to be desirable in any activity labelled as criminal. To render criminal the communicative acts of persons engaged in a lawful activity which is not shown to be harming anybody cannot be justified by the legislative objective advanced in its support.
Sections 193 and 195.1(1)(c) of the Code infringe the right to liberty of the person in s. 7 of the Charter because a person convicted under these sections faces a possible prison sentence. But ss. 193 and 195.1(1)(c) are not so vague as to fail to accord with the principles of fundamental justice. These sections, read on their own or together, do not violate the requirement that the criminal law be clear. Courts have been called upon to interpret some of the terms used in these sections, but courts are regularly called upon to resolve ambiguities in legislation. This does not necessarily make such legislation vulnerable to constitutional attack.
However, where a law infringes the right to liberty under s. 7 in a way that also infringes another constitutionally entrenched right (which infringement is not saved by s. 1 ), such law cannot be said to accord with the principles of fundamental justice. All the guarantees contained in the Charter are "basic tenets of our legal system" and required to be protected by the judiciary. Section 195.1(1) (c) which violates the guarantee of freedom of expression in s. 2 (b) and infringes the right to liberty in s. 7 , must be justified as a reasonable limit under s. 1 of the Charter . Section 193 does not violate s. 2 (b) and, while s. 193 infringes a person's right to liberty through the threat of imprisonment, absent the infringement of some other Charter guarantee, this particular deprivation of liberty does not violate a principle of fundamental justice. Nor are ss. 193 and 195.1(1) (c) so intimately linked as to be part of a single legislative scheme enabling one to say that because part of the scheme violates a principle of fundamental justice the whole scheme violates that principle.
Section 195.1(1)(c) of the Code is not justifiable under s. 1 of the Charter . Curbing the public nuisance caused by street solicitation is a legislative objective of sufficient importance for the purpose of s. 1 and the measures are rationally connected to the objective. But to imprison people for exercising their constitutionally protected freedom of expression, even if they are exercising it for purposes of prostitution, is not a proportionate way of dealing with the objective. Where communication is a lawful activity and prostitution is also a lawful activity, the legislative response of imprisonment is far too drastic.
Cases Cited
By Dickson C.J.
Referred to: R. v. Oakes, [1986] 1 S.C.R. 103; Hutt v. The Queen, [1978] 2 S.C.R. 476; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Westendorp v. The Queen, [1983] 1 S.C.R. 43.
By Lamer J.
Applied: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; distinguished: Allgeyer v. Louisiana, 165 U.S. 578 (1897); Meyer v. Nebraska, 262 U.S. 390 (1923); Bolling v. Sharpe, 347 U.S. 497 (1954); Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972); Lochner v. New York, 198 U.S. 45 (1905); Adair v. United States, 208 U.S. 161 (1908); Coppage v. Kansas, 236 U.S. 1 (1915); Adkins v. Children's Hospital, 261 U.S. 525 (1923); Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936); West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937); United States v. Carolene Products Co., 304 U.S. 144 (1938); Day‑Brite Lighting, Inc. v. Missouri, 342 U.S. 421 (1952); referred to: R. v. Cunningham (1986), 31 C.C.C. (3d) 223; R. v. Skinner (1987), 79 N.S.R. (2d) 8; R. v. Jahelka; R. v. Stagnitta (1987), 36 C.C.C. (3d) 105; Boucher v. The King, [1951] S.C.R. 265; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Connally v. General Construction Co., 269 U.S. 385 (1926); Cline v. Frink Dairy Co., 274 U.S. 445 (1927); Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Grayned v. City of Rockford, 408 U.S. 104 (1972); Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982); R. v. Zundel (1987), 31 C.C.C. (3d) 97; Luscher v. Deputy Minister, Revenue Canada, Customs & Excise, [1985] 1 F.C. 85; Re Information Retailers Association of Metropolitan Toronto Inc. and Municipality of Metropolitan Toronto (1985), 52 O.R. (2d) 449; R. v. Robson (1985), 19 C.C.C. (3d) 137; R. v. LeBeau (1988), 41 C.C.C. (3d) 163; R. v. Morgentaler, [1988] 1 S.C.R. 30, rev'g (1985), 52 O.R. (2d) 353; Smith v. Goguen, 415 U.S. 566 (1974); Kolender v. Lawson, 461 U.S. 352 (1983); R. v. Kerim, [1963] S.C.R. 124; R. v. McLellan (1980), 55 C.C.C. (2d) 543; R. v. Woszczyna (1983), 6 C.C.C. (3d) 221; Patterson v. The Queen, [1968] S.C.R. 157; R. v. Sorko, [1969] 4 C.C.C. 241; R. v. Laliberté (1973), 12 C.C.C. (2d) 109; R. v. Ikeda and Widjaja (1978), 42 C.C.C. (2d) 195; R. v. Lantay, [1966] 3 C.C.C. 270; R. v. De Munck, [1918] 1 K.B. 635; R. v. Edwards and Pine (1986), 32 C.C.C. (3d) 412; R. v. Hislop (1980), 5 W.C.B. 124; R. v. McLean (1986), 52 C.R. (3d) 262; R. v. Jones, [1986] 2 S.C.R. 284; Ferguson v. Skrupa, 372 U.S. 726 (1963); Smith, Kline & French Laboratories Ltd. v. Attorney General of Canada, [1986] 1 F.C. 274; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R.V.P. Enterprises v. British Columbia (Minister of Consumer & Corporate Affairs), [1988] 4 W.W.R. 726; Whitbread v. Walley (1988), 26 B.C.L.R. (2d) 203; R. v. Quesnel (1985), 53 O.R. (2d) 338; Re Bassett and Government of Canada (1987), 35 D.L.R. (4th) 537; Wilson v. Medical Services Commission (1988), 30 B.C.L.R. (2d) 1; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Videoflicks Ltd. (1984), 48 O.R. (2d) 395; R. v. Oakes, [1986] 1 S.C.R. 103; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790; R. v. Smith (1988), 44 C.C.C. (3d) 385; Switzman v. Elbling, [1957] S.C.R. 285; Hutt v. The Queen, [1978] 2 S.C.R. 476; Westendorp v. The Queen, [1983] 1 S.C.R. 43; P.C.I.J., Danzig Legislative Decrees case, Advisory opinion of December 4th, 1935, Series A/B No. 65, p. 41.
By Wilson J. (dissenting)
Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; R. v. Oakes, [1986] 1 S.C.R. 103; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Cohen, [1939] S.C.R. 212; Patterson v. The Queen, [1968] S.C.R. 157; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357.
Statutes and Regulations Cited
Act to amend the Criminal Code (prostitution), S.C. 1985, c. 50, ss. 1, 2.
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b), 7 , 8 to 14 .
Constitution Act, 1982, s. 52(1) .
Constitution of the United States, Amendment XIV.
Constitutional Questions Act, C.C.S.M., c. C180.
Criminal Code, R.S.C., 1985, c. C‑46, ss. 21(1) (b), (c), 22 [rep. & sub. c. 27 (1st Supp.), s. 7 ], 51, 53, 59, 63, 83 [am. idem, s. 186 (Sch. IV, item 1)], 113, 131 [rep. & sub. idem, s. 17 ], 136 [am. idem, s. 18 ], 140 [rep. & sub. idem, s. 19 ], 143, 163, 168, 175, 241, 264.1 [ad. idem, s. 38 ], 296, 301, 318, 319, 380(1) [am. idem, s. 54 ], 408, 423, 464 [rep. & sub. idem, s. 60 ], 465 [am. idem, s. 61 ].
Criminal Code, R.S.C. 1970, c. C‑34, ss. 116 [am. 1974‑75‑76, c. 93, s. 5], 175(1)(c) [rep. 1972, c. 13, s. 12], 179 [am. 1972, c. 13, s. 13; am. 1980‑81‑82‑83, c. 125, s. 11], 193, 195.1(1)(c) [ad. 1972, c. 13, s. 15; rep. & sub. 1985, c. 50. s. 1], 666.
European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, Art. 7(1).
Authors Cited
Canada. Law Reform Commission. Report 31. Recodifying Criminal Law. Ottawa: Law Reform Commission, 1987.
Canada. Special Committee on Pornography and Prostitution. Pornography and Prostitution in Canada: report of the Special Committee on Pornography and Prostitution. Ottawa: The Committee, 1985.
Colvin, Eric. "Section Seven of the Canadian Charter of Rights and Freedoms " (1989), 68 Can. Bar Rev. 560.
Côté, Pierre‑André. The Interpretation of Legislation in Canada. Translated by Katherine Lippel, John Philpot and Bill Schabas. Cowansville: Yvon Blais Inc., 1984.
Debates of the Houses of Commons, 1st Sess., 33rd Parl., 34 Eliz. II, 1985, vol. V, p. 6374.
Ontario. Advisory Council on the Status of Women. Pornography and Prostitution, 1984.
Schauer, Frederick. Free Speech: A Philosophical Enquiry. New York: Cambridge University Press, 1982.
Symons, Julian. "Orwell's Prophecies: The Limits of Liberty and the Limits of Law" (1984), 9 Dalhousie L.J. 115.
Tribe, Laurence H. American Constitutional Law. Mineola, New York: Foundation Press, Inc., 1988.
United Kingdom. Criminal Law Revision Committee. Sixteenth Report, Prostitution in the Street, Cmnd 9329. London: Her Majesty's Stationery Office, 1984.
APPEAL from a judgment of the Manitoba Court of Appeal (1987), 49 Man. R. (2d) 1, [1987] 6 W.W.R. 289, 38 C.C.C. (3d) 408, 60 C.R. (3d) 216, on a reference made pursuant to The Constitutional Questions Act. Appeal dismissed, Wilson and L'Heureux‑Dubé JJ. dissenting.
J. J. Gindin, Mary‑Jane Bennett and Dave Phillips, for the appellants.
V. E. Toews and Donna J. Miller, for the respondent.
Graham R. Garton, for the intervener the Attorney General of Canada.
Michael Bernstein, for the intervener the Attorney General for Ontario.
Gale Welsh, for the intervener the Attorney General for Saskatchewan.
Richard F. Taylor, for the intervener the Attorney General for Alberta.
Joseph J. Arvay, Q.C., for the intervener the Attorney General of British Columbia.
Joseph Eliot Magnet, for the intervener the Canadian Organization for the Rights of Prostitutes.
//The Chief Justice//
The judgment of Dickson C.J. and La Forest and Sopinka JJ. was delivered by
THE CHIEF JUSTICE -- I have had the advantage of reading the reasons of my colleagues, Justice Lamer and Justice Wilson. I agree, for the reasons given by Wilson J., that s. 195.1(1)(c) of the Criminal Code, R.S.C. 1970, c. C‑34, represents a prima facie infringement of s. 2 (b) of the Canadian Charter of Rights and Freedoms , while s. 193 does not. In my view, the scope of freedom of expression does extend to the activity of communication for the purpose of engaging in prostitution. With respect, however, I disagree with the conclusion reached by Wilson J. that this prima facie infringement is not justified as a reasonable limit under s. 1 of the Charter . On this issue, I reach the same conclusion as Lamer J., but prefer to rest my conclusion on an analysis which differs from that of my colleague.
The first step in the analysis, established in R. v. Oakes, [1986] 1 S.C.R. 103, to assess the justification pursuant to s. 1 for a Charter violation is to characterize the legislative objective of the impugned provision. Like Wilson J., I would characterize the legislative objective of s. 195.1(1) (c) in the following manner: the provision is meant to address solicitation in public places and, to that end, seeks to eradicate the various forms of social nuisance arising from the public display of the sale of sex. My colleague Lamer J. finds that s. 195.1(1) (c) is truly directed towards curbing the exposure of prostitution and related violence, drugs and crime to potentially vulnerable young people, and towards eliminating the victimization and economic disadvantage that prostitution, and especially street soliciting, represents for women. I do not share the view that the legislative objective can be characterized so broadly. In prohibiting sales of sexual services in public, the legislation does not attempt, at least in any direct manner, to address the exploitation, degradation and subordination of women that are part of the contemporary reality of prostitution. Rather, in my view, the legislation is aimed at taking solicitation for the purposes of prostitution off the streets and out of public view.
The Criminal Code provision subject to attack in these proceedings clearly responds to the concerns of home‑owners, businesses, and the residents of urban neighbourhoods. Public solicitation for the purposes of prostitution is closely associated with street congestion and noise, oral harassment of non‑participants and general detrimental effects on passers‑by or bystanders, especially children. In my opinion, the eradication of the nuisance‑related problems caused by street solicitation is a pressing and substantial concern. I find, therefore, that sending the message that street solicitation for the purposes of prostitution is not to be tolerated constitutes a valid legislative aim.
I turn now to the issue of proportionality. With respect to the question of rational connection between the impugned legislation and the prevention of the social nuisance associated with the public display of the sale of sex, I agree with Wilson J. that such a connection exists. The next step is to determine whether the means embodied in this legislation are appropriately tailored to meet the objective. Is it reasonable and justifiable to limit freedom of expression according to the terms of s. 195.1(1)(c) in order to eliminate street solicitation and the social nuisance which it creates? The answer to this question requires an analysis of whether the means impair the right as little as possible and of the effects and reasonableness of the limits imposed.
I start by considering the nature of the expression and the nature of the infringing legislation. Freedom of expression is fundamental to a democratic society. Parliament, through s. 195.1(1) (c) of the Criminal Code , has chosen to use the criminal justice system to prosecute individuals on the basis of the exercise of their freedom of expression. When a Charter freedom has been infringed by state action that takes the form of criminalization, the Crown bears the heavy burden of justifying that infringement. Yet, the expressive activity, as with any infringed Charter right, should also be analysed in the particular context of the case. Here, the activity to which the impugned legislation is directed is expression with an economic purpose. It can hardly be said that communications regarding an economic transaction of sex for money lie at, or even near, the core of the guarantee of freedom of expression.
The legislation aims at restraining communication or attempts at communication for the purpose of engaging in prostitution. That communication must occur in "a public place or in any place open to public view". It is argued that the legislation is over‑broad because it is not confined to places where there will necessarily be many people, or, in fact, any people, who will be offended by the activity. The objective of this provision, however, is not restricted to the control of actual disturbances or nuisances. It is broader, in the sense that it is directed at controlling, in general, the nuisance‑related problems identified above that stem from street soliciting. Much street soliciting occurs in specified areas where the congregation of prostitutes and their customers amounts to a nuisance. In effect, the legislation discourages prostitutes and customers from concentrating their activities in any particular location. While it is the cumulative impact of individual transactions concentrated in a public area that effectively produces the social nuisance at which the legislation in part aims, Parliament can only act by focusing on individual transactions. The notion of nuisance in connection with street soliciting extends beyond interference with the individual citizen to interference with the public at large, that is with the environment represented by streets, public places and neighbouring premises.
The appellants' argument that the provision is too broad and therefore cannot be found to be appropriately tailored also focuses on the phrase "in any manner communicate or attempt to communicate". The communication in question cannot be read without the phrase "for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute" which follows and qualifies it. In my opinion, the definition of communication may be, and indeed is, very wide, but the need for flexibility on the part of Parliament in this regard must be taken into account. Certain acts or gestures in addition to certain words can reasonably be interpreted as attracting customers for the purposes of prostitution or as indicating a desire to procure the services of a prostitute. This provides the necessary delineation of the scope of the communication that may be criminalized by s. 195.1(1) (c). This Court, in Hutt v. The Queen, [1978] 2 S.C.R. 476, interpreted the meaning of solicitation in keeping with the purposes of the provision. In that case, the actions of a prostitute who had engaged in conversation regarding the sale of sexual services for a fee with an undercover police officer in his car was found not to constitute "solicitation". In a similar vein, the courts are capable of restricting the meaning of "communication" in this context by reference to the purpose of the impugned legislation.
Can effective yet less intrusive legislation be imagined? The means used to attain the objective of the legislation may well be broader than would be appropriate were actual street nuisance the only focus. However, as I find the objective to extend to the general curtailment of visible solicitation for the purposes of prostitution, it is my view that the legislation is not unduly intrusive.
It is legitimate to take into account the fact that earlier laws and considered alternatives were thought to be less effective than the legislation that is presently being challenged. When Parliament began its examination of the subject of street soliciting, it was presented with a spectrum of views and possible approaches by both the Fraser Committee and the Justice and Legal Affairs Committee. In making a choice to enact s. 195.1(1) (c) as it now reads, Parliament had to try to balance its decision to criminalize the nuisance aspects of street soliciting and its desire to take into account the policy arguments regarding the effects of criminalization of any aspect of prostitution. The legislative history of the present provision and, in general, of legislation directed to street solicitation is both long and complicated. The legislative scheme that was eventually implemented and has now been challenged need not be the "perfect" scheme that could be imagined by this Court or any other court. Rather, it is sufficient if it is appropriately and carefully tailored in the context of the infringed right. I find that this legislation meets the test of minimum impairment of the right in question.
In this regard, I find my words in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at p. 783, to be applicable:
I should emphasize that it is not the role of this Court to devise legislation that is constitutionally valid, or to pass on the validity of schemes which are not directly before it, or to consider what legislation might be the most desirable. The discussion of alternative legislative schemes that I have undertaken is directed to one end only, that is, to address the issue whether the existing scheme meets the requirements of the second limb of the test for the application of s. 1 of the Charter as set down in Oakes.
The final question to be answered under the Oakes test is whether the effects of the law so severely trench on a protected right that the legislative objective is outweighed by the infringement. I have already found that the objective of the legislation to which these intended effects are linked is of pressing and substantial importance in the free and democratic society that Canada represents. Because the impugned Criminal Code provision prohibits legitimate expression in the form of communication for the purposes of a commercial agreement exchanging sex for money, and therefore violates a protected right, the justification of that Charter infringement must be in keeping with the principles of a democratic society and the rights, freedoms and interests of its members. Here, the legislation limits the conditions under which communication between prostitutes and customers can take place. In thereby moving toward the eradication of public communication with respect to prostitution, it addresses itself precisely to the objective it seeks to achieve. The curtailment of street solicitation is in keeping with the interests of many in our society for whom the nuisance‑related aspects of solicitation constitute serious problems. I find that the obtrusiveness linked to the enforcement of the provision, when weighed against the resulting decrease in the social nuisance associated with street solicitation, can be justified in accordance with s. 1 .
I wish to add here that other attempts at legislation in this area have failed for various reasons. This is not to say that the Crown can discharge its burden under s. 1 simply by saying that it is difficult to find a legislative solution in the area of prostitution and that the courts should therefore be ready to accept the enactment under challenge. Rather it is to point out that a legislative scheme aimed at street solicitation must be of a criminal law nature after this Court's decision in Westendorp v. The Queen, [1983] 1 S.C.R. 43. In that case, the city of Calgary enacted a by‑law that prohibited the use of city streets by those approaching or being approached by others for the purpose of prostitution. Laskin C.J., for the Court, found the challenged by‑law to be ultra vires as invading federal powers in relation to the criminal law. A province or municipality may not "translate a direct attack on prostitution into street control through reliance on public nuisance" (p. 53). Only Parliament can attack prostitution through the use of criminal measures, and legislation seeking to eradicate street solicitation cannot originate with the individual municipalities. The restriction on the activities of prostitutes effected by s. 195.1(1) (c) of the Criminal Code , at stake in these proceedings, must be assessed accordingly.
In conclusion, with respect to the s. 1 justification of the infringement of freedom of expression, I find that s. 195.1(1) (c) is valid legislation aimed at the curtailment of street solicitation. After taking into consideration the nature of the expression and the nature of the infringing legislation, and the issue of whether a free and democratic society can countenance legislation aimed at the social nuisance of street solicitation and at its eventual elimination, I conclude that the impugned provision is saved by s. 1 .
I now turn to the question of whether ss. 193 and 195.1(1) (c) separately or in combination infringe s. 7 of the Charter . There are two components of s. 7 that must be satisfied before finding a violation. First, there must be a breach o