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 of one of the s. 7 interests of the individual -- life, liberty or security of the person. Second, the law that is responsible for that breach must be found to violate the principles of fundamental justice. With respect to the first component, there is a clear infringement of liberty in this case given the possibility of imprisonment contemplated by the impugned provisions. Beyond this obvious violation, the appellants raise various arguments relating to an economic aspect of liberty that has been infringed. It is submitted that the impugned provisions infringe the liberty interest of street prostitutes in not allowing them to exercise their chosen profession, and their right to security of the person, in not permitting them to exercise their profession in order to provide the basic necessities of life. In the context of these "economic" arguments, the challengers make repeated reference to the fact that prostitution per se is legal. They submit that restriction of a legal activity to the point where it becomes impossible to engage in that activity is contrary to the principles of fundamental justice.
With respect to the first component of s. 7, the strongest argument that can be made regarding an infringement of liberty derives from the fact that the legislation contemplates the possibility of imprisonment. Because this is the case, I find it unnecessary to address the question of whether s. 7 liberty is violated in another, "economic", way. I wish to add here that this case does not provide the appropriate forum for deciding whether "liberty" or "security of the person" could ever apply to any interest with an economic, commercial or property component.
Having found an infringement of liberty, I now move to the second component of s. 7 -- that is, the question of whether the infringement is in accord with the principles of fundamental justice. I will divide my discussion of the principles of fundamental justice into two parts. First, I will briefly add my comments to those of my colleagues with respect to the argument that the provisions are void for vagueness and therefore do not comply with the principles of fundamental justice. Second, I will address the argument that I alluded to above -- that is, that the fact that street solicitation is criminalized while prostitution per se remains legal contravenes the principles of fundamental justice.
I agree with Lamer J. that vagueness should be recognized as a principle of fundamental justice. Certainly in the criminal context where a person's liberty is at stake, it is imperative that persons be capable of knowing in advance with a high degree of certainty what conduct is prohibited and what is not. It would be contrary to the basic principles of our legal system to allow individuals to be imprisoned for transgression of a vague law. Rather than repeat Lamer J.'s discussion of the void for vagueness doctrine, I restrict myself to the question of whether the impugned provisions raised in this appeal are so vague as to violate the requirement that the criminal law be clear. I find that the terms "prostitution", "keeps" a bawdy house, "communicate" and "attempts to communicate" are not so vague, given the benefit of judicial interpretation, that their meaning is impossible to discern in advance.
The second argument pertaining to the violation of the principles of fundamental justice rests on the fact that Parliament has chosen to control prostitution indirectly through the criminalization of certain activities of those involved instead of directly criminalizing prostitution itself. The principle of fundamental justice proffered in this regard is that it is impermissible for Parliament to send out conflicting messages whereby the criminal law says one thing but means another. Section 193 effectively prohibits the sale of sex in private settings while s. 195.1(1)(c) makes it impossible to negotiate in public for the sale of sex. It is argued that this legislative scheme attaches the stigma of criminalization to a lawful activity (communication) directed at the achievement of another lawful activity (sale of sex). The question is whether by creating a legal environment indirectly making it, in effect, impossible for a prostitute to sell sex, Parliament has offended the principles of fundamental justice.
While I recognize that Parliament has chosen a circuitous path, I find it difficult to say that Parliament cannot take this route. The issue is not whether the legislative scheme is frustrating or unwise but whether the scheme offends the basic tenets of our legal system. The fact that the sale of sex for money is not a criminal act under Canadian law does not mean that Parliament must refrain from using the criminal law to express society's disapprobation of street solicitation. Unless or until this Court is faced with the direct question of Parliament's competence to criminalize prostitution, it is difficult to say that Parliament cannot criminalize and thereby indirectly control some element of prostitution -- that is, street solicitation. The principles of fundamental justice are not designed to ensure that the optimal legislation is enacted. I conclude that the legislative scheme embodied by ss. 193 and 195.1(1)(c) of the Criminal Code is not so unfair as to violate principles of fundamental justice.
Finally, having found that the infringement of freedom of expression effected by s. 195.1(1)(c) can be justified under s. 1, I need not consider Wilson J.'s argument with respect to the principles of fundamental justice and their relation to infringements of other Charter rights and freedoms.
I would dismiss the appeal and answer the constitutional questions as follows:
Question 1.Is s. 193 of the Criminal Code of Canada inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms?
Answer: No.
Question 2.Is s. 195.1(1)(c) of the Criminal Code of Canada inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms?
Answer: No.
Question 3.Is the combination of the legislative provisions contained in ss. 193 and 195.1(1)(c) of the Criminal Code of Canada inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms?
Answer: No.
Question 4.Is s. 193 of the Criminal Code of Canada inconsistent with s. 2(b) of the Canadian Charter of Rights and Freedoms?
Answer: No.
Question 5.Is s. 195.1(1)(c) of the Criminal Code of Canada inconsistent with s. 2(b) of the Canadian Charter of Rights and Freedoms?
Answer: Yes.
Question 6.Is the combination of the legislative provisions contained in ss. 193 and 195.1(1)(c) of the Criminal Code of Canada inconsistent with s. 2(b) of the Canadian Charter of Rights and Freedoms?
Answer: No.
Question 7.If s. 193 or s. 195.1(1)(c) of the Criminal Code of Canada or a combination of both or any part thereof are inconsistent with either s. 7 or s. 2(b) of the Canadian Charter of Rights and Freedoms, to what extent, if any, can such limits on the rights and freedoms protected by s. 7 or s. 2(b) of the Charter be justified under s. 1 of the Charter and thereby be rendered not inconsistent with the Constitution Act, 1982?
Answer: To the extent that s. 195.1(1)(c) of the Criminal Code is inconsistent with s. 2(b) of the Charter, it can be justified as a reasonable limit under s. 1 of the Charter.
//Lamer J.//
The following are the reasons delivered by
LAMER J. --
I. Introduction
On January 14, 1987 the Lieutenant Governor in Council of Manitoba referred certain questions to the Court of Appeal of the province pursuant to the provisions of The Constitutional Questions Act, C.C.S.M., c. C180. The questions concern the constitutionality of ss. 193 and 195.1(1)(c) of the Criminal Code, R.S.C. 1970, c. C‑34, in the light of ss. 2(b) and 7 of the Canadian Charter of Rights and Freedoms. The reference arose from a case, R. v. Cunningham (1986), 31 C.C.C. (3d) 223 (Man. Prov. Ct.), in which the trial judge held that s. 195.1(1)(c) of the Criminal Code was of no force and effect as it was inconsistent with s. 7 of the Charter. The trial judge also made comments with respect to s. 193 of the Criminal Code and s. 2(b) of the Charter. The Court of Appeal upheld the validity of the legislation, and it is from this decision that the appellants, Contradictor at the Reference in the Court of Appeal and the Contradictor added by order of the Chief Justice of Manitoba, come to this Court.
For purposes of convenience and ease of reference I set out the relevant legislation and constitutional provisions in this appeal. I refer to the numbering of the Code sections as they were at the time of the appeal. Section 193 of the Criminal Code provides:
Bawdy‑houses
193. (1) Every one who keeps a common bawdy‑house is guilty of an indictable offence and is liable to imprisonment for 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
(c) 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 195.1 of the Criminal Code provides:
Offence in Relation to Prostitution
195.1 (1) Every person who in a public place or in any place open to public view
(a) stops or attempts to stop any motor vehicle,
(b) impedes the free flow of pedestrian or vehicular traffic or ingress to or egress from premises adjacent to that place, or
(c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person
for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction.
(2) In this section, "public place" includes any place to which the public have access as of right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view.
Section 2(b) of the Charter reads:
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 7 of the Charter reads:
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 1 of the Charter reads:
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.
Section 52(1) of the Constitution Act, 1982 reads:
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
II. Judgment of the Manitoba Court of Appeal
Monnin C.J.M.
Monnin C.J.M. agreed with the decisions of Huband J.A., who dealt primarily with the questions concerning s. 2 of the Charter, and with Philp J.A. who dealt with the questions concerning s. 7 of the Charter. He added that he disagreed with the Nova Scotia Court of Appeal decision in R. v. Skinner (1987), 79 N.S.R. (2d) 8, and the Alberta Court of Appeal decision in R. v. Jahelka; R. v. Stagnitta (1987), 36 C.C.C. (3d) 105, wherein both courts concluded that s. 195.1(1)(c) restricted s. 2(b) of the Charter. He further added that if the provisions of the Criminal Code constituted infringements of rights and freedoms under the Charter then they were reasonable limits demonstrably justified in a free and democratic society.
Huband J.A.
Initially, Huband J.A. notes that the guarantee of free expression under the Charter is not absolute in nature:
Just because some words are written or spoken or suggested does not mean that one is exercising the right of free speech under the Canadian Charter of Rights and Freedoms. If a person, without provocation, shouts obscenities at another, it does not fall within the ambit of the Charter. Whether a crime or tort has been committed or not, the Charter right to free speech and free expression simply does not include such utterances.
((1987), 38 C.C.C. (3d) 408, at p. 413.)
In his view, the Charter protects the expression and dissemination of ideas. In examining the history of freedom of expression, Huband J.A. notes that as it developed in the common law, the concept of free speech referred to the right to freedom in thought and speech on every conceivable subject including political, social, and religious subjects. In this regard he refers to the judgment of Rand J. in Boucher v. The King, [1951] S.C.R. 265. He further states that the Canadian Bill of Rights enshrined the concept of freedom of speech as it had developed in the common law. Similarly, according to Huband J.A., when freedom of expression was incorporated in the Charter, no new definition was intended by the drafters. The word "expression" instead of "speech" was used to reflect that an individual can make a statement by actions as well as by words. Huband J.A. refers to this Court's decision in RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, for confirmation of the view that not every statement or gesture is entitled to protection under the Charter. In this case Huband J.A. held that soliciting for the purposes of prostitution is not entitled to protection (at p. 413):
[W]hen a prostitute propositions a customer, or vice versa, we are not dealing with the free expression of ideas, nor with the real or imagined factual data to support an idea. I think that Milton and Mill would have been astounded to hear that their disquisitions were being invoked to protect the business of whores and pimps. I confess my own astonishment.
On the question of whether ss. 193 and 195.1(1)(c) in combination restrains the lawful trade of prostitutes, Huband J.A. notes that prostitution in itself is not illegal. However, by restricting the places where soliciting and prostitution activities can take place, Parliament has imposed severe restrictions on prostitutes. He held that Parliament has the right to do this, and in doing so does not contravene s. 2(c) of the Charter. Further, he notes that he would find, in any event, that if these provisions did contravene the Charter, then the contravention would be justified under s. 1 of the Charter.
Philp J.A.
The judgment of Philp J.A. addresses the issue of whether the impugned sections of the Criminal Code infringe the right of liberty guaranteed by s. 7 of the Charter. The appellant (Contradictor added by order of the Chief Justice of Manitoba) had argued that s. 193 was "impermissibly vague" and therefore constituted a prima facie violation of the Charter. Philp J.A. held that the issue of the "overbreadth" of a statute is only relevant once it has been determined that the Charter has been breached and the court is considering the issue of the applicability of s. 1. It cannot be argued, according to Philp J.A., that because a statute is "overbroad" in its wording it contravenes the Charter. Further, he held that it cannot be argued that s. 193 is so vague that it offends s. 7 because a person would be liable to imprisonment without fair notice that his conduct was criminal. Courts have been using the rules of statutory construction to interpret s. 193 for many years and it has never been found to be so vaguely worded as to be void for uncertainty (at pp. 426‑27):
I think s. 193 gives fair notice of the kind of conduct that is criminal; and the courts have been able to give sensible meaning to the words of the section. Nor can it be said that the section has placed wide discretion in the hands of the police authorities, or encouraged arbitrary and erratic arrests and convictions.
I entertain some doubt of the application of the "impermissibly vague" doctrine to Canadian constitutional law. In any event, I have concluded that s. 193 is not impermissibly vague, that it is not inconsistent with s. 7 of the Charter.
Philp J.A. next considered the issue of whether the guarantee of liberty under s. 7 protects economic rights and the right to work, and whether prostitution would be entitled to that protection. Following McIntyre J. in Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, he held that the Charter does not protect economic rights. He concluded, after a review of the provincial case law on the subject, that liberty under s. 7 of the Charter, is concerned with the physical liberty of the person. Therefore, he held that the right to engage in prostitution is not protected under s. 7.
Twaddle J.A.
Twaddle J.A. agrees with the reasoning and results of Huband and Philp JJ.A. In regard to the applicability of s. 1 of the Charter, he states that this section only applies where limits are placed on rights and freedoms that are fundamental. In his opinion, no fundamental rights or freedoms are involved in this case.
Lyon J.A.
Lyon J.A. agrees with the reasoning and results of Monnin C.J.M., and Huband, Philp and Twaddle JJ.A.
III. Issues
The following constitutional questions were stated by order of the Chief Justice on March 3, 1988:
1.Is s. 193 of the Criminal Code of Canada inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms?
2.Is s. 195.1(1)(c) of the Criminal Code of Canada inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms?
3.Is the combination of the legislative provisions contained in ss. 193 and 195.1(1)(c) of the Criminal Code of Canada inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms?
4.Is s. 193 of the Criminal Code of Canada inconsistent with s. 2(b) of the Canadian Charter of Rights and Freedoms?
5.Is s. 195.1(1)(c) of the Criminal Code of Canada inconsistent with s. 2(b) of the Canadian Charter of Rights and Freedoms?
6.Is the combination of the legislative provisions contained in ss. 193 and 195.1(1)(c) of the Criminal Code of Canada inconsistent with s. 2(b) of the Canadian Charter of Rights and Freedoms?
7.If s. 193 or s. 195.1(1)(c) of the Criminal Code of Canada or a combination of both or any part thereof are inconsistent with either s. 7 or s. 2(b) of the Canadian Charter of Rights and Freedoms, to what extent, if any, can such limits on the rights and freedoms protected by s. 7 or s. 2(b) of the Charter be justified under s. 1 of the Charter and thereby rendered not inconsistent with the Constitution Act, 1982?
The first three issues in this Reference require an examination of the scope of the rights guaranteed by s. 7. In the course of this examination, it falls to be determined whether the impugned legislation is constitutionally infirm on two separate grounds. First, is the legislation so vaguely worded that it is offensive to s. 7 of the Charter? The appellants submit that a law may be found inconsistent with s. 7 of the Charter where that law lacks clarity and precision such that it contains no discernible standards for the prescribed conduct and persons of common intelligence must necessarily guess as to its meaning. Second, does the impugned legislation, in suppressing the trade of prostitution, violate the right to life, liberty and security of the person in a manner that does not accord with the principles of fundamental justice? More specifically, the appellants submit that the suppression of prostitution violates an individual's right to liberty in the choice of a profession, and further violates the right to security of the person by preventing an individual from providing the basic necessities of life such as food, shelter and clothing.
V. "Void for Vagueness" and s. 7 of the Charter
The first ground of attack is essentially based on the "void for vagueness" doctrine whose genesis and development is largely found in U.S. jurisprudence. I say "largely" found in the U.S. because there is some recognition of the concept in international law. I point for instance to Article 7(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, which reads:
Article 7
(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
This article was invoked to challenge an amendment to a provision of the Danzig Penal Code which read:
Any person who commits an act which the law declares to be punishable or which is deserving of penalty according to the fundamental conceptions of a penal law and sound popular feeling, shall be punished. If there is no penal law directly covering an act, it shall be punished under the law of which the fundamental conception applies most nearly to the said act.
The Permanent Court of International Justice, in the Danzig Legislative Decrees case, Advisory Opinion of December 4th, 1935, Series A/B No. 65, p. 41, said the following in respect of this legislation (at p. 53):
. . . under the new decrees . . . a man may find himself placed on trial and punished for an act which the law did not enable him to know was an offence, because its criminality depends entirely upon the appreciation of the situation by the Public Prosecutor and by the judge. Accordingly, a system in which the criminal character of an act and the penalty attached to it will be known to the judge alone replaces a system in which this knowledge was equally open to both the judge and the accused.
There is no doubt, however, that the bulk of the jurisprudence in the area of "void for vagueness" lies in the U.S., and therefore I propose to begin with a brief recapitulation of the American authorities so as to provide a context for discussion of the doctrine's potential application in Canadian law. It should be noted at the outset that no specific or explicit constitutional provision exists in the U.S. prohibiting vague laws.
The Supreme Court of the United States has ruled that impermissibly vague laws are void in that they constitute a denial of due process of law. In Connally v. General Construction Co., 269 U.S. 385 (1926), Sutherland J. put it in the following terms at p. 391:
. . . a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.
In Cline v. Frink Dairy Co., 274 U.S. 445 (1927), that "first essential of due process of law" was expressed as follows at p. 465:
. . . it will not do to hold an average man to the peril of an indictment for the unwise exercise of his . . . knowledge involving so many factors of varying effect that neither the person to decide in advance nor the jury to try him after the fact can safely and certainly judge the result.
The principles expressed in these two citations are not new to our law. In fact they are based on the ancient Latin maxim nullum crimen sine lege, nulla poena sine lege -- that there can be no crime or punishment unless it is in accordance with law that is certain, unambiguous and not retroactive. The rationale underlying this principle is clear. It is essential in a free and democratic society that citizens are able, as far as is possible, to foresee the consequences of their conduct in order that persons be given fair notice of what to avoid, and that the discretion of those entrusted with law enforcement is limited by clear and explicit legislative standards (see Professor L. Tribe American Constitutional Law (2nd ed. 1988), at p. 1033). This is especially important in the criminal law, where citizens are potentially liable to a deprivation of liberty if their conduct is in conflict with the law.
One of the leading cases dealing with impermissibly vague laws is Papachristou v. City of Jacksonville, 405 U.S. 156 (1972), wherein the Supreme Court of the United States invalidated a Florida vagrancy ordinance. Although lengthy I find it appropriate to reproduce the ordinance in order to demonstrate the scope of the doctrine as understood by the U.S. Supreme Court:
Jacksonville Ordinance Code {SS} 26‑‑57: Rogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants and, upon conviction in the Municipal Court shall be punished as provided for Class D offenses.
Douglas J., speaking for the court, concluded that the ordinance was impermissibly vague on the following grounds at p. 162:
This ordinance is void for vagueness, both in the sense that it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,". . . and because it encourages arbitrary and erratic arrests and convictions. Thornhill v. Alabama, 310 U.S. 88; Herndon v. Lowry, 301 U.S. 242.
Living under a rule of law entails various suppositions, one of which is that "(all persons) are entitled to be informed as to what the State commands or forbids." Lanzetta v. New Jersey, 306 U.S. 451, 453.
Lanzetta is one of a well‑recognized group of cases insisting that the law give fair notice of the offending conduct.
The precise standards for evaluating vagueness were further developed and enunciated in Grayned v. City of Rockford, 408 U.S. 104 (1972), at pp. 108‑9:
Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. . . . Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.
Before embarking on a review of the Canadian experience with the "void for vagueness" doctrine I pause to note that the American jurisprudence distinguishes between vagueness and overbreadth. As Professor Tribe explains, although there is a parallel between the two concepts, "[v]agueness is a constitutional vice conceptually distinct from overbreadth in that an overbroad law need lack neither clarity nor precision". (See Tribe, op. cit., at p. 1033.) A law that is overly broad sweeps within its ambit activities that are beyond the allowable area of state control and in fact burdens conduct that is constitutionally protected. The proper approach to adopt in understanding the relationship between vagueness and overbreadth has been stated by Marshall J., speaking for the U.S. Supreme Court in Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982), at pp. 494‑95:
In a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications.
The relationship between vagueness and overbreadth in Canadian law has been expressly addressed in R. v. Zundel (1987), 31 C.C.C. (3d) 97 (Ont. C.A.), in a decision rendered "By the Court" at pp. 125‑26:
Vagueness and overbreadth are two concepts. They can be applied separately, or they may be closely interrelated. The intended effect of a statute may be perfectly clear and thus not vague, and yet its application may be overly broad. Alternatively, as an example of the two concepts being closely interrelated, the wording of a statute may be so vague that its effect is considered to be overbroad. Vagueness or overbreadth, for the purpose of determining the permissibly regulated area of conduct, and whether freedom of expression under s. 2(b) of the Charter has been breached, may be different from vagueness or overbreadth for the purpose of applying the criteria in Oakes as to the application of s. 1 of the Charter.
Further, the position in Hoffman Estates, supra, was adopted and followed by the Ontario Court of Appeal in R. v. Morgentaler, Smoling and Scott (1985), 52 O.R. (2d) 353, at pp. 387‑88.
It would seem to me that since the advent of the Charter, the doctrine of vagueness or overbreadth has been the source of attack on laws on two grounds. First, a law that does not give fair notice to a person of the conduct that is contemplated as criminal, is subject to a s. 7 challenge to the extent that such a law may deprive a person of liberty and security of the person in a manner that does not accord with the principles of fundamental justice. Clearly, it seems to me that if a person is placed at risk of being deprived of his liberty when he has not been given fair notice that his conduct falls within the scope of the offence as defined by Parliament, then surely this would offend the principles of fundamental justice. Second, where a separate Charter right or freedom has been limited by legislation, the doctrine of vagueness or overbreadth may be considered in determining whether the limit is "prescribed by law" within the meaning of s. 1 of the Charter. In this regard I quote from the decision of Hugessen J. of the Federal Court of Appeal in Luscher v. Deputy Minister, Revenue Canada, Customs & Excise, [1985] 1 F.C. 85, at pp. 89‑90:
In my opinion, one of the first characteristics of a reasonable limit prescribed by law is that it should be expressed in terms sufficiently clear to permit a determination of where and what the limit is. A limit which is vague, ambiguous, uncertain, or subject to discretionary determination is, by that fact alone, an unreasonable limit. If a citizen cannot know with tolerable certainty the extent to which the exercise of a guaranteed freedom may be restrained, he is likely to be deterred from conduct which is, in fact, lawful and not prohibited. Uncertainty and vagueness are constitutional vices when they are used to restrain constitutionally protected rights and freedoms. While there can never be absolute certainty, a limitation of a guaranteed right must be such as to allow a very high degree of predictability to the legal consequences.
See also Re Information Retailers Association of Metropolitan Toronto Inc. and Municipality of Metropolitan Toronto (1985), 52 O.R. (2d) 449 (Ont. C.A.), and R. v. Robson (1985), 19 C.C.C. (3d) 137 (B.C.C.A.)
As I understand it, this appeal was argued on the basis that the impugned sections of the Criminal Code violate s. 7 of the Charter because they subject an individual to a deprivation of liberty and security of the person in the form of potential imprisonment and are allegedly impermissibly vague. Therefore I will proceed with my analysis on that basis. As I have stated above, in my view a law that is impermissibly vague and that has as a potential sanction the deprivation of liberty or security of the person, offends s. 7 of the Charter. There is no dispute that the impugned sections have the potential to deprive one of liberty and security of the person upon conviction. What remains to be determined is whether the sections are impermissibly vague and thereby offend the principles of fundamental justice.
I begin by noting that the vagueness doctrine does not require that a law be absolutely certain; no law can meet that standard. I point to the introductory comments of the Law Reform Commission of Canada in respect of its draft Code:
It [the draft Code] is drafted in a straightforward manner, minimizing the use of technical terms and avoiding complex sentence structure and excessive detail. It speaks, as much as possible, in terms of general principles instead of needless specifics and ad hoc enumerations.
(Law Reform Commission of Canada, Recodifying Criminal Law, Report 31, June 1987, at p. 2.)
In addition, the role of the courts in giving meaning to legislative terms should not be overlooked when discussing the issue of vagueness. The Ontario Court of Appeal in R. v. Morgentaler, Smoling and Scott, supra, said the following at p. 388:
In this case, however, from a reading of s. 251 with its exception, there is no difficulty in determining what is proscribed and what is permitted. It cannot be said that no sensible meaning can be given to the words of the section. Thus, it is for the courts to say what meaning the statute will bear.
Also, as the Ontario Court of Appeal has held in R. v. LeBeau (1988), 41 C.C.C. (3d) 163, at p. 173, "the void for vagueness doctrine is not to be applied to the bare words of the statutory provision but, rather, to the provision as interpreted and applied in judicial decisions".
The fact that a particular legislative term is open to varying interpretations by the courts is not fatal. As Beetz J. observed in R. v. Morgentaler, [1988] 1 S.C.R. 30, at p. 107, "[f]lexibility and vagueness are not synonymous". Therefore the question at hand is whether the impugned sections of the Criminal Code can be or have been given sensible meanings by the courts. In other words is the statute so pervasively vague that it permits a "standardless sweep" allowing law enforcement officials to pursue their personal predilections? (See Smith v. Goguen, 415 U.S. 566 (1974), at p. 575, and Kolender v. Lawson, 461 U.S. 352 (1983), at pp. 357‑58.)
I begin with s. 193. There is no doubt that standing alone the words of the section are vulnerable to a charge that they are impermissibly vague. The section, in essence, makes it an offence for anyone to keep a common‑bawdy house. But we are aided in the interpretation of the section by the definitions provided in s. 179 of the Code. I here reproduce the pertinent definitions:
179. (1) In this Part
. . .
"common bawdy‑house" means a place that is
(a) kept or occupied, or
(b) resorted to by one or more persons
for the purpose of prostitution or the practice of acts of indecency;
. . .
"keeper" includes a person who
(a) is an owner or occupier of a place,
(b) assists or acts on behalf of an owner or occupier of a place,
(c) appears to be, or to assist or act on behalf of an owner or occupier of a place,
(d) has the care or management of a place, or
(e) uses a place permanently or temporarily, with or without the consent of the owner or occupier;
. . .
"place" includes any place, whether or not
(a) it is covered or enclosed,
(b) it is used permanently or temporarily, or
(c) any person has an exclusive right of user with respect to it;
"prostitute" means a person of either sex who engages in prostitution;
The words and terms used in the section are not terms of art; rather, they are words of common usage that have been interpreted and applied by courts in the past. This, in my view, is indicative of the existence of an ascertainable standard of conduct, a standard that has been given sensible meaning by courts in a number of cases. I need only briefly refer to some of these decisions to reenforce this view.
In terms of what it means to be a "keeper" of a common bawdy‑house, an element of participation in the wrongful use of the place is a minimum requirement: see R. v. Kerim, [1963] S.C.R. 124, and R. v. McLellan (1980), 55 C.C.C. (2d) 543 (B.C.C.A.) As an example of what constitutes wrongful participation, I cite the decision of Martin J.A. in R. v. Woszczyna (1983), 6 C.C.C. (3d) 221 (Ont. C.A.) In that case the court was presented with two appeals arising out of the same set of facts dealing with the operation of a steam‑bath that was found to be a common bawdy‑house. Martin J.A., speaking for the court, held that day‑to‑day participation in the conduct on the premises was not necessary. It was sufficient that the respondent participated in the management of the premises, that he received the proceeds from its operation, that he hired and paid the staff and other operating expenses from the proceeds of the business, and that he was aware of the activities being carried on in the premises. (See R. v. Woszczyna, supra, at p. 226.)
The meaning of "common bawdy‑house" has been addressed on more than one occasion. In Patterson v. The Queen, [1968] S.C.R. 157, this Court held that keeping a common bawdy‑house required a frequent or habitual use of the premises for the purposes of prostitution. Proof of actual prostitution or intercourse is not necessary to make out the offence: see R. v. Sorko, [1969] 4 C.C.C. 241 (B.C.C.A.) In addition, the following are further examples of cases wherein what constitutes a common bawdy‑house has been considered: R. v. Laliberté (1973), 12 C.C.C. (2d) 109 (Que. C.A.); R. v. McLellan, supra; R. v. Ikeda and Widjaja (1978), 42 C.C.C. (2d) 195 (Ont. C.A.)
In terms of words and phrases like "prostitution" and "acts of indecency", I note that they have been given meaning by courts on many occasions, and I re‑iterate that these are largely terms of common usage. Prostitution for example has been defined as the offering by a person of his or her body for lewdness for payment in return: see R. v. Lantay, [1966] 3 C.C.C. 270 (Ont. C.A.), adopting the English position in R. v. De Munck, [1918] 1 K.B. 635 (C.C.A.) It seems to me that there is little dispute as to the basic definition of prostitution, that being the exchange of sexual services of one person in return for payment by another. In respect of the term "indecency", it and variations of it are used in numerous other sections of the Criminal Code, including those pertaining to immoral, indecent or obscene performances, mailing obscene materials, indecent acts, public decency, and indecent exhibition. The appropriate test to apply in this area is the "community standard of tolerance" similar to the test used in obscenity cases which this and other courts have interpreted and applied without insurmountable difficulty. Finally, I wish to make reference to a pre‑Charter case dealing with s. 193 of the Code, R. v. Hislop, Ont. C.A., September 22, 1980, unreported (summarized 5 W.C.B. 124). In dismissing the challenge to the offence of keeping a common bawdy‑house, MacKinnon A.C.J.O. stated the following at page 4 of the court's reasons:
The words attacked have been in the Criminal Code since 1917 and have been interpreted and applied by our courts without difficulty for years. We do not think the words are vague, uncertain or arbitrary.
I can do no better than to agree with this statement. As I have stated, the interpretation of legislation has long been a task left to the courts. Through time courts have developed rules of construction especially in respect of laws regulating criminal conduct. In fact, in the area of penal statutes, that is, those creating offences, the rule is one of strict construction. In other words, if there is a difficulty in determining the meaning or scope of a word or phrase, and general principles of interpretation are unable to resolve the question, then courts will adopt the meaning favouring the accused. (See P.‑A. Côté, The Interpretation of Legislation in Canada (1984), at p. 380.) Of course, the very nature of language will always mean that there will be a certain area of flexibility open to interpretation and judicial appreciation. This does not equate with impermissible vagueness. I conclude that s. 193 of the Criminal Code is not impermissibly vague as courts have and continue to give the words and phrases found therein sensible meaning. The requirements of fair notice and guarding against arbitrary enforcement have been met. Therefore, insofar as s. 193 is not impermissibly vague, there is no violation of s. 7 of the Charter.
With the background discussion of the "void for vagueness" doctrine already having been undertaken, the question of whether s. 195.1(1)(c) of the Code is impermissibly vague may be shortly dealt with. To recall briefly, this section makes it an offence to stop or attempt to stop any person or in any manner communicate or attempt to communicate with any person for the purpose of prostitution. In my view, although broad and far reaching, the terms of the section are not vague. There is nothing about the language of the section that prevents a court from giving sensible meaning to its terms: see R. v. Edwards and Pine (1986), 32 C.C.C. (3d) 412 (B.C. Co. Ct.) and R. v. McLean (1986), 52 C.R. (3d) 262 (B.C.S.C.) In particular, the phrase "in any manner communicates", though very broad, clearly indicates to individuals that they must not by any means communicate for the purpose of prostitution or engaging the services of a prostitute. This type of all‑inclusive language is not strange to the Criminal Code. I need only refer to the offence of fraud to make the point. Section 380(1) makes it an offence to defraud the public or any person by "deceit, falsehood or other fraudulent means" (emphasis added). Other examples could be given, but the point remains the same: a provision whose language is broad in scope thereby criminalizing a wide range of activity is not by that reason impermissibly vague. In fact, such a provision may make more clear what the targeted activity is, and the circumstances in which it is prohibited. I pause to note that while I do not believe the section is impermissibly vague, and therefore does not violate s. 7 of the Charter for that reason, the issue of whether the section is overly broad may well be a consideration under a potential analysis pursuant to s. 1 of the Charter.
In summary then, I conclude that neither s. 193 nor s. 195.1(1)(c) of the Criminal Code are in violation of s. 7 of the Charter on account that they are impermissibly vague. In neither case can it be said that fair notice is not given to citizens; courts have been able to give sensible meaning to the terms of the sections and have applied them without difficulty. Further, the discretion of law enforcement officials is sufficiently limited by the explicit legislative standards set out in the sections. Therefore, the appellants first ground of attack of the impugned provisions under s. 7 of the Charter must fail.
The second ground of attack involves a consideration of whether "liberty" under s. 7 includes within its scope the right to engage in an occupation and to carry on a business, more specifically in this case the trade of prostitution.
VI. Economic Liberty and s. 7 of the Charter
This case raises an important issue that has been recurring in our jurisprudence under the Charter. Simply stated, the issue centers on the scope of s. 7 of the Charter, more specifically the guarantees of life, liberty and security of the person. The appellants argue that the impugned provisions infringe prostitutes' right to liberty in not allowing them to exercise their chosen profession, and their right to security of the person, in not permitting them to exercise their profession in order to provide the basic necessities of life. I should like to point out at the outset something that may seem obvious to some, or which may come as a surprise to others, but which in any event needs to be kept in mind throughout: prostitution is not illegal in Canada. We find ourselves in an anomalous, some would say bizarre, situation where almost everything related to prostitution has been regulated by the criminal law except the transaction itself. The appellants' argument then, more precisely stated, is that in criminalizing so many activities surrounding the act itself, Parliament has made prostitution de facto illegal if not de jure illegal.
I now turn to the issue of interpreting the meaning of the rights guaranteed by s. 7 of the Charter, more specifically the right to liberty and security of the person. The appellants in the case at bar rely on an expansive interpretation of the rights guaranteed by s. 7 to argue that carrying on a lawful occupation is protected by the right to liberty. As a basis for this view the following summary of the position taken by the English philosopher John Stuart Mill is relied upon:
The only end for which society is warranted in infringing the liberty of action of any individual, he said, is self-protection. Power should be exercised to prevent the individual from doing harm to others, but that is the only part of his conduct for which he should be answerable to society. In every other way he should have freedom.
(J. Symons, "Orwell's Prophecies: The Limits of Liberty and the Limits of Law" (1984), 9 Dalhousie L.J. 115, at p. 116.)
Mill's approach was explicitly adopted by Wilson J. in R. v. Jones, [1986] 2 S.C.R. 284, at pp. 318‑19:
I believe that the framers of the Constitution in guaranteeing "liberty" as a fundamental value in a free and democratic society had in mind the freedom of the individual to develop and realize his potential to the full, to plan his own life to suit his own character, to make his own choices for good or ill, to be non‑conformist, idiosyncratic and even eccentric -- to be, in to‑day's parlance, "his own person" and accountable as such. John Stuart Mill described it as "pursuing our own good in our own way".
For a further exposition of this view see the judgment of my colleague Wilson J. in R. v. Morgentaler, supra, at pp. 164‑66.
Wilson J.'s position seems largely reflective of several leading American decisions that have dealt with the definition of liberty in the context of the Fourteenth Amendment to the United States Constitution. The relevant part of the amendment reads as follows:
Amendment XIV (1868)
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
One of the earliest U.S. decisions interpreting what has become known as the "due process clause" of the Fourteenth Amendment is Allgeyer v. Louisiana, 165 U.S. 578 (1897). The Supreme Court held that a Louisiana statute that purported to regulate a contract formed between parties in Louisiana and New York was unconstitutional. Peckham J., speaking for the court, held that the Fourteenth Amendment protected liberty of contract, and more specifically stated the following at p. 589:
The liberty mentioned in that amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned.
The case of Meyer v. Nebraska, 262 U.S. 390 (1923), is of major significance because it was the first case that expanded the notion of liberty to include broader values beyond freedom from incarceration and liberty of contract. McReynolds J. said the following at p. 399:
Without doubt, it [the Fourteenth Amendment] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.
For further examples of this broad approach to the definition of liberty see also Bolling v. Sharpe, 347 U.S. 497 (1954), and Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972).
It should not be overlooked, however, that the American experience with "economic liberty" jurisprudence in particular, has been controversial throughout its history. As I noted above, the case of Allgeyer v. Louisana, supra, was the first to define liberty as including the right to make contracts. But it is the decision in Lochner v. New York, 198 U.S. 45 (1905), that firmly established economic liberty as a constitutionally protected interest. In that case a majority of the United States Supreme Court invalidated a New York law that set maximum hours of work for bakers because, at p. 57,
. . . [t]here is no reasonable ground for interfering with the liberty of person or the right of free contract, by determining the hours of labor, in the occupation of a baker.
Between Lochner, supra, and the start of the Depression, the U.S. Supreme Court invalidated many regulatory measures on the grounds that they intruded upon liberty of contract and property rights: see for example Adair v. United States, 208 U.S. 161 (1908), Coppage v. Kansas, 236 U.S. 1 (1915), invalidating legislation prohibiting employers from imposing "yellow‑dog" contracts (a contract requiring employees to disavow union membership or affiliation as a condition of employment), and Adkins v. Children's Hospital, 261 U.S. 525 (1923), invalidating a minimum wage law in the District of Columbia.
The onset of the Depression and President Roosevelt's New Deal initiatives caused a confrontation between the notion of "economic liberty" and the needs of a modern regulatory state. Beginning in 1935 the U.S. Supreme Court rendered a number of decisions invalidating New Deal legislation, one of the most significant being Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936), a decision striking down state minimum wage legislation. What ensued was the so‑called "Court Crisis" in which President Roosevelt proposed a court reorganization plan. The plan was never put into effect. Significantly, however, the court overruled its decisions in Morehead and Adkins, supra, in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), and adopted a more deferential approach to cases of state regulation of "economic liberty". Indeed, in United States v. Carolene Products Co., 304 U.S. 144 (1938), the court espoused a deferential standard of review on questions of "economic liberty" with more active scrutiny where the state interferes with "civil" liberties: see United States v. Carolene Products Co., supra, at pp. 152‑53, especially the now famous "Footnote 4". This attitude of deference in respect of "economic liberty" has been reiterated more recently, for example in Day‑Brite Lighting, Inc. v. Missouri, 342 U.S. 421 (1952), at p. 433, and Ferguson v. Skrupa, 372 U.S. 726 (1963), at pp. 730‑31. All of this is to emphasize the difficulties that the United States Supreme Court has faced in dealing with the concept of "economic liberty" as a constitutionally protected freedom, and how much the American experience is linked to its particular historical and social context.
Along these lines, I pause to note that in applying principles developed under a provision of the U.S. Constitution to cases arising under our Charter, the Court must take into account differences in wording and historical foundations of the two documents. As Strayer J. observed in Smith, Kline & French Laboratories Ltd. v. Attorney General of Canada, [1986] 1 F.C. 274, at p. 314:
. . . it must be kept in mind that the historical background and social and economic context of the Fourteenth Amendment are distinctly American. Further it must be noted that in the Fourteenth Amendment "liberty" is combined with "property" which gives a different colouration to the former through the introduction of economic values as well as personal values. This is not the case in section 7 of the Canadian Charter of Rights and Freedoms.
With this in mind I now propose to examine the Canadian jurisprudence in the area of "economic liberty" and s. 7 of the Charter.
I begin by noting the words of the Chief Justice in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at pp. 785‑86:
In my opinion "liberty" in s. 7 of the Charter is not synonymous with unconstrained freedom. . . . Whatever the precise contours of "liberty" in s. 7, I cannot accept that it extends to an unconstrained right to transact business whenever one wishes.
Much in the same vein other courts in this country have decided that "liberty" does not generally extend to commercial or economic interests. In R.V.P. Enterprises Ltd. v. British Columbia (Minister of Consumer & Corporate Affairs), [1988] 4 W.W.R. 726, for example, the B.C. Court of Appeal had to decide whether the right to continue to hold a liquor license was a constitutionally protected liberty interest. The court, Esson J.A. speaking for it, held that it was not at pp. 732‑33:
It is enough to say that the licence here in question is an entirely economic interest and, as such, not one to which s. 7 has any application.
It should be noted that the court expressly stated that it was not deciding that s. 7 could not apply to any interest which has an economic, commercial or property component. Another case from British Columbia, Whitbread v. Walley (1988), 26 B.C.L.R. (2d) 203 (C.A.) also dealt generally with the question of economic interests and s. 7 of the Charter. At issue in that case were two sections of the Canada Shipping Act that limited the liability of owners and crew members of ships. McLachlin J.A. (as she then was), speaking for the court, held at p. 213 that "purely economic claims are not within the purview of s. 7 of the Charter", although she did add the caution that she was not asserting that s. 7 could never include an interest with an economic component.
In Ontario, in the case of R. v. Quesnel (1985), 53 O.R. (2d) 338 Finlayson J.A. of the Court of Appeal dealt with the specific issue of the "right to work" in the following manner (at p. 346):
Counsel submits . . . that s. 7 of the Charter dealing with life, liberty and security of the person, provides a free standing right to work. Unfortunately for that argument, it has been authoritatively held in a number of cases that this section does not relate to employment: see R. v. Videoflicks Ltd. et al. (1984), 48 O.R. (2d) 395 at p. 433, 14 D.L.R. (4th) 10 at p. 48, 15 C.C.C. (3d) 353 at p. 391 (C.A.):
The concept of life, liberty and security of the person would appear to relate to one's physical or mental integrity and one's control over these, rather than some right to work whenever one wishes.
In Saskatchewan, the Court of Appeal of that province had occasion to deal with the issue of the "right to work" in Re Bassett and Government of Canada (1987), 35 D.L.R. (4th) 537, at p. 567, Vancise J.A. speaking for the majority:
The applicant contends that the respondent, by curtailing his right to prescribe controlled drugs, has violated his 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. There is no evidence in this case that the applicant has been so deprived. He submits that security of the person ought to encompass the right to pursue one's occupation or profession and not to be deprived thereof except in accordance with principles of fundamental justice. In order to give s. 7 that interpretation, security of the person must be interpreted to mean the economic capacity to satisfy basic human needs, that is, to earn a living. Nowhere in s. 7 is there reference to property rights and that omission is, in my opinion, significant. . . .
The British Columbia Court of Appeal has recently had yet another opportunity to deal with this issue in Wilson v. Medical Services Commission (1988), 30 B.C.L.R. (2d) 1. The case involved the province's Medical Service Act that regulated the assignment of "practitioner numbers" entitling new doctors to bill the Medical Service Plan for services rendered. It is not necessary for our purposes to detail the specific regulations of the Act that were challenged. It is sufficient to note that some doctors were denied permanent practitioner numbers thus denying them the opportunity to pursue their profession though licensed and qualified to do so. Further, other doctors were granted permanent practitioner numbers though with geographical restrictions. Of central importance is the court's detailed discussion of whether the right to liberty under s. 7 of the Charter encompasses the opportunity of a qualified and licensed doctor to practice medicine in B.C. without restraint as to place, time or purpose.
The court, in a per curiam decision, held that "liberty" within the meaning of s. 7 is not confined to freedom from bodily restraint. It did go on to say the following about the scope of s. 7 (at p. 18):
It does not, however, extend to protect property or pure economic rights. It may embrace individual freedom of movement, including the right to choose one's occupation and where to pursue it, subject to the right of the state to impose, in accordance with the principles of fundamental justice, legitimate and reasonable restrictions on the activities of individuals.
The court draws a distinction between the right to work which it states is a purely economic question, and the right to pursue a livelihood or profession which it characterizes as a matter concerning one's dignity and sense of self‑worth. In this regard the court relies heavily on a passage from the reasons for judgment of the Chief Justice (dissenting) in Reference Re Public Service Employee Relations Act (Alta.), supra, at pp. 367‑68:
It has been suggested that associational activity for the pursuit of economic ends should not be accorded constitutional protection. If by this it is meant that something as fundamental as a person's livelihood or dignity in the workplace is beyond the scope of constitutional protection, I cannot agree. If, on the other hand, it is meant that concerns of an exclusively pecuniary nature are excluded from such protection, such an argument would merit careful consideration. In the present case, however, we are concerned with interests which go far beyond those of a merely pecuniary nature.
Work is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person's employment is an essential component of his or her sense of identity, self‑worth and emotional well‑being. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person's dignity and self respect.
The court goes on to point out that although the issue in the Reference case dealt with s. 2(d) of the Charter, the statement of the Chief Justice emphasizes the reasons why the opportunity to work should be afforded constitutional protection as an aspect of liberty under s. 7 of the Charter, even when an economic component is involved.
In my view, it is not clear that the statement by the Chief Justice, quoted at length by the B.C. Court of Appeal in Wilson, is support for the view that s. 7 of the Charter protects a "right to pursue a livelihood or profession" as distinct from a "right to work" which is not protected. In the Reference case, the issue was not whether there existed an independent right to work or to pursue a profession, but rather whether the freedom of association protected by s. 2(d) of the Charter included the freedom to form and join associations and the freedom to bargain collectively and to strike. It was the view of the Chief Justice that the right to bargain collectively and to strike was essential to the capacity of individuals to ensure equitable and humane working conditions. It was in that context that the Chief Justice spoke of the importance of work to a person's sense of dignity and self‑worth. There is no doubt that the non‑economic or non‑pecuniary aspects of work cannot be denied and are indeed important to a person's sense of identity, self‑worth and emotional well‑being. But it seems to me that the distinction sought to be drawn by the court between a right to work and a right to pursue a profession is, with respect, not one that aids in an understanding of the scope of "liberty" under s. 7 of the Charter.
Further, it is my view that work is not the only activity which contributes to a person's self‑worth or emotional well‑being. If liberty or security of the person under s. 7 of the Charter were defined in terms of attributes such as dignity, self‑worth and emotional well‑being, it seems that liberty under s. 7 would be all inclusive. In such a state of affairs there would be serious reason to question the independent existence in the Charter of other rights and freedoms such as freedom of religion and conscience or freedom of expression.
In short then I find myself in agreement with the following statement of McIntyre J. in the Reference Re Public Service Employee Relations Act (Alta.), supra, at p. 412:
It is also to be observed that the Charter, with the possible exception of s. 6(2)(b) (right to earn a livelihood in any province) and s. 6(4), does not concern itself with economic rights.
I therefore reject the application of the American line of cases that suggest that liberty under the Fourteenth Amendment includes liberty of contract. As I stated earlier these cases have a specific historical context, a context that incorporated into the American jurisprudence certain laissez‑faire principles that may not have a corresponding application to the interpretation of the Charter in the present day. There is also a significant difference in the wording of s. 7 and the Fourteenth Amendment. The American provision speaks specifically of a protection of property interests while our framers did not choose to similarly protect property rights (see Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 1003). This then, is sufficient to dispose of this ground of appeal.
This Court has until now, save for certain comments of my colleague Wilson J., taken an exclusionary approach to defining liberty and security of the person. While it is not essential to the disposition of this ground of appeal, I feel, having regard to some of the pronouncements of Courts of Appeal on the subject, that I should to some extent disclose my views as to the nature of the liberty and security of the person s. 7 is protecting. I pause to point out that the comments that follow are not designed to provide a definitive or exhaustive statement of what interests are protected by s. 7, but rather to put in a more positive way what s. 7 does protect as opposed to what it does not protect.
I note that the guarantees of life, liberty and security of the person are placed together with a set of provisions (ss. 8‑14) which are mainly concerned with criminal and penal proceedings. More specifically ss. 8‑14 confer rights related to investigation, detention, adjudication and sanction in relation to offences. It is significant that the rights guaranteed by s. 7 as well as those guaranteed in ss. 8‑14 are listed under the title "Legal Rights", or in the French version "Garanties juridiques". The use of the term "Legal Rights" suggests a distinctive set of rights different from the rights guaranteed by other sections of the Charter. In this regard I refer to the judgment of this Court in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 502‑3:
Sections 8 to 14 . . . address specific deprivations of the "right" to life, liberty and security of the person in breach of the principles of fundamental justice. . . . They are designed to protect, in a specific manner and setting, the right to life, liberty and security of the person set forth in s. 7. . . .
To put matters in a different way, ss. 7 to 14 could have been fused into one section, with inserted between the words of s. 7 and the rest of those sections the oft utilised provision in our statutes, "and, without limiting the generality of the foregoing (s. 7) the following shall be deemed to be in violation of a person's rights under this section".
The B.C. Motor Vehicle Reference certainly did not expound a full theory of how to interpret s. 7 of the Charter. It did however provide significant guidance in interpreting the nature of the rights guaranteed by that section. As well, I note that a similar interpretation of the significance of the term "Legal Rights" is adopted by Professor Eric Colvin in his article "Section Seven of the Canadian Charter of Rights and Freedoms" (1989), 68 Can. Bar Rev. 560, at pp. 573‑74:
In the context of the Charter, the term "legal rights" cannot simply mean rights which are recognized in law. All Charter rights would be legal rights in this sense. The use of the term to describe a sub‑category of Charter rights suggests that the included rights are of a special kind, different from the rights respecting the substantive content of law which are conferred in some other parts of the Charter.
In my view we can obtain further insight into the nature of the interests protected by s. 7, namely life, liberty and security of the person, by looking to the context in which they are found. I have already alluded to the placement of s. 7 in relation to ss. 8‑14. It is also important to note that life, liberty and security of the person have a context within s. 7 itself. The state can deprive individuals of life, liberty and security of the person if it is done in accordance with the principles of fundamental justice. In my view, the principles of fundamental justice can provide an invaluable key to determining the nature of the life, the liberty and the security of the person referred to in s. 7. The principles of fundamental justice are principles that govern the justice system. They determine the means by which one may be brought before or within the justice system, and govern how one may be brought within the system and thereafter the conduct of judges and other actors once the individual is brought within it. Therefore the restrictions on liberty and security of the person that s. 7 is concerned with are those that occur as a result of an individual's interaction with the justice system, and its administration.
In the B.C. Motor Vehicle Reference, for example, this Court said the following in respect of defining the principles of fundamental justice at p. 503:
Many have been developed over time as presumptions of the common law, others have found expression in the international conventions on human rights. All have been recognized as essential elements of a system for the administration of justice which is founded upon a belief in "the dignity and worth of the human person" . . . and on the "rule of law". . . .
In other words, the principles of fundamental justice are to be found in the basic tenets of our legal system. They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system. [Emphasis added.]
This passage is, in my view, instructive of the kind of life, liberty and security of the person sought to be protected through the principles of fundamental justice. The interests protected by s. 7 are those that are properly and have been traditionally within the domain of the judiciary. Section 7 and more specifically ss. 8‑14 protect individuals against the state when it invokes the judiciary to restrict a person's physical liberty through the use of punishment or detention, when it restricts security of the person, or when it restricts other liberties by employing the method of sanction and punishment traditionally within the judicial realm. This is not to say that s. 7 protects only an individual's physical liberty. It is significant that the section protects one's security of the person as well. As I stated in Mills v. The Queen, [1986] 1 S.C.R. 863, at pp. 919‑20:
. . . security of the person is not restricted to physical integrity; rather, it encompasses protection against "overlong subjection to the vexations and vicissitudes of a pending criminal accusation". . . . These include stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction.
This Court has since reiterated the view that stigmatization of an accused may deprive him of the rights guaranteed by s. 7 in R. v. Vaillancourt, [1987] 2 S.C.R. 636, at p. 651. In addition, the Chief Justice in R. v. Morgentaler, supra, at p. 56, held that state interference with bodily integrity and serious state‑imposed psychological stress could trigger a restriction of security of the person. In so doing he quoted with approval the statement of the Ontario Court of Appeal in R. v. Videoflicks Ltd. (1984), 48 O.R. (2d) 395, at p. 433, to the effect that the right to life, liberty and security of the person "would appear to relate to one's physical or mental integrity and one's control over these" (emphasis added).
The common thread that runs throughout s. 7 and ss. 8‑14, however, is the involvement of the judicial branch as guardian of the justice system. As examples we need only look briefly to ss. 8‑14. Section 8 protects individuals against unreasonable search or seizure. In that context, it is an independent arbiter, namely a member of the judiciary, that usually decides whether the state interest in searching outweighs the individual's right of privacy. Sections 9 and 10 involve protections in respect of detention, arrest and imprisonment. One of the central principles to be found in these rights is that of habeas corpus, the traditional writ requiring that a person be brought before a judge to investigate and determine the lawfulness of his detention. Sections 11‑14 involve the proceedings in criminal and penal matters including notice of the offence charged, the actual trial proceedings and protection against cruel or unusual punishment.
I hasten to point out that this is not to say that s. 7 is therefore limited only to purely criminal or penal matters. Professor Colvin takes note of this as well in his article, op. cit., at p. 584, when he argues that s. 7 need not be confined to the sphere of criminal or regulatory law:
It is to be expected that criminal law will provide many of the cases on section 7, because criminal sanctions are potent instruments for depriving persons of liberty and security. The association with criminal law led the Supreme Court of Canada in Morgentaler to raise the question of whether the role of section 7 might be confined to this sphere. There are, however, other ways in which governmental action can deprive a person of liberty and security.
Some of the other ways in which governmental action can deprive a person of liberty or security are close to the model of criminal law. For example, the civil processes for restraining a mentally disordered person or isolating a contagious person should be subject to review under section 7.
I would add that if certain legislation permits the confinement of mentally ill persons by a government agency without a hearing, then it seems to me that, in addition to s. 7, ss. 9 and 10(c) could be engaged. Similarly, if a person, as a condition of a probation order, were ordered to refrain from operating his business or to refrain from associating with certain persons, where failure to comply would bring him within s. 666 of the Code, then s. 7 may be engaged. In this regard, I also refer to s. 116 of the Code that creates an offence for disobeying a court order. What is at stake in these examples is the kind of liberty and security of the person the state typically empowers judges and courts to restrict. In other words, the confinement of individuals against their will, or the restriction of control over their own minds and bodies, are precisely the kinds of activities that fall within the domain of the judiciary as guardian of the justice system. By contrast, once we move beyond the "judicial domain", we are into the realm of general public policy where the principles of fundamental justice, as they have been developed primarily through the common law, are significantly irrelevant. In the area of public policy what is at issue are political interests, pressures and values that no doubt are of social significance, but which are not "essential elements of a system for the administration of justice", and hence are not principles of fundamental justice within the meaning of s. 7. The courts must not, because of the nature of the institution, be involved the realm of pure public policy; that is the exclusive role of the properly elected representatives, the legislators. To expand the scope of s. 7 too widely would be to infringe upon that role.
I do recognize, however, that the increasing role of administrative law in our modern society has provided the state with an avenue to regulate and control a myriad of activities and areas that affect individuals: for example, to name but a few, communications, consumer protection, energy, environmental management, financial markets and institutions, food production and distribution, health and safety, human rights, labour/management relations, liquor, occupational licensing, social welfare and transportation. As a result, this area of law has developed its own regime of common and statutory law dealing with procedural and substantive fairness. The extent to which s. 7 of the Charter can be invoked in the realm of administrative law, its implications for administrative procedures, and its relationship to the common law rules of natural justice and the duty of fairness are not before this Court, and it is preferable to develop that jurisprudence on an ongoing, case‑by‑case basis. What is clear, however, is that the state in certain circumstances has created bodies, such as parole boards and mental health review tribunals, that assume control over decisions affecting an individual's liberty and security of the person. Those are areas, because they involve the restriction to an individual's physical liberty and security of the person, where the judiciary has always had a role to play as guardian of the administration of the justice system. There are also situations in which the state restricts other privileges or, broadly termed, "liberties" in the guise of regulation, but uses punitive measures in cases of non‑compliance. In such situations the state is in effect punishing individuals, in the classic sense of the word, for non‑compliance with a law or regulation. In all these cases, in my view, the liberty and security of the person interests protected by s. 7 would be restricted, and one would then have to determine if the restriction was in accordance with the principles of fundamental justice. By contrast, as I have stated, there is the realm of general public policy dealing with broader social, political and moral issues which are much better resolved in the political or legislative forum and not in the courts.
In this respect, Professor Colvin describes the proper judicial role as follows in his article, op. cit., at p. 575:
Any claims which the judiciary can make to an "inherent domain" must be claims about means rather than ends. The judiciary should have some special expertise in matters of institutional process. The judiciary may also have certain limited powers to review governmental decisions of social policy. There is, however, no constitutional basis within the Western democratic tradition for the judiciary to claim any area of substantive policy‑making as its exclusive preserve.
Put shortly, I am of the view that s. 7 is implicated when the state, by resorting to the justice system, restricts an individual's physical liberty in any circumstances. Section 7 is also implicated when the state restricts individuals' security of the person by interfering with, or removing from them, control over their physical or mental integrity. Finally, s. 7 is implicated 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.
Although this may appear to be a limited reading of s. 7, it is my view that it is neither wise nor necessary to subsume all other rights in the Charter within s. 7. A full and generous interpretation of the Charter that extends the full benefit of its protection to individuals can be achieved without the incorporation of other rights and freedoms within s. 7.
This interpretation of s. 7 is compatible with an expansive view of liberty and security of the person, but as well, and in my view perhaps more importantly, it does not derogate from what I said regarding the scope of the principles of fundamental justice in the B.C. Motor Vehicle Reference, supra, at p. 501:
As a qualifier, the phrase serves to establish the parameters of the interests but it cannot be interpreted so narrowly as to frustrate or stultify them. For the narrower the meaning given to "principles of fundamental justice" the greater will be the possibility that individuals may be deprived of these most basic rights. This latter result is to be avoided given that the rights involved are as fundamental as those which pertain to the life, liberty and security of the person, the deprivation of which "has the most severe consequences upon an individual" (R. v. Cadeddu (1982), 40 O.R. (2d) 128 (H.C.), at p. 139).
Indeed in some cases this interpretation of s. 7 may afford the individual greater protection since a restriction on rights and freedoms other than s. 7 must go to s. 1 where the state is obliged to demonstrate that the restriction is reasonable and justified. By contrast, s. 7 is, in a manner of speaking, "permissive". In other words the section allows the state to deprive an individual of life, liberty and security of the person as long as it abides by the principles of fundamental justice. It is important to note that the onus is on the person bringing the challenge to demonstrate not only the restriction of the rights but also that the state has not abided by the principles of fundamental justice. In my view then it is desirable to maintain a conceptual distinction between the rights guaranteed by s. 7 and the other freedoms in the Charter. This is not to say that "liberty" as a value underlying the Charter does not permeate the document in a broader, more general sense, especially as it relates to the maintenance of Canada as a "free and democratic society". In this regard I refer to the often quoted statement of the Chief Justice in R. v. Oakes, [1986] 1 S.C.R. 103, at p. 136:
The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.
Therefore, for the reasons I have stated above, the appellants' arguments in respect of the right to liberty and security of the person must fail. The rights under s. 7 do not extend to the right to exercise their chosen profession. Neither s. 193 nor s. 195.1(1)(c) therefore restrict the rights guaranteed by s. 7 of the Charter in the manner claimed by the appellants. I reach this conclusion based on a reading of the cases decided by this and other courts dealing with s. 7 and "economic liberty", and on a reading of the text of the Charter.
To summarize then, both grounds of attack by the appellants based on s. 7 of the Charter are unsuccessful: the impugned provisions are not void for vagueness and they do not infringe the right to liberty or security of the person in the manner claimed by the appellants. Therefore the first three constitutional questions as stated by the Chief Justice should be answered in the negative.
VII. Freedom of Expression
The next three constitutional questions once again raise the vexing problem of defining the scope of freedom of expression as guaranteed by s. 2(b) of the Charter. This Court has had occasion to discuss at length the rationales for protecting expression in RWDSU v. Dolphin Delivery Ltd., supra, and more recently in Irwin Toy, supra; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, and Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790. It is not necessary for the purposes of this appeal to repeat much of that discussion, but it would be helpful to briefly review and perhaps expand upon the analytical framework that has been developed.
The first step in any Charter analysis is to determine the scope of the right or freedom at issue. That step must be taken before deciding whether there is a restriction on the guarantee. In other words, the question to be asked is "does the activity pursued properly fall within `freedom of expression'"? This first step has been described, in reference to the narrower concept of freedom of speech, in the following terms by Frederick Schauer in Free Speech: A Philosophical Enquiry (1982), at p. 91:
We are attempting to identify those things that one is free (or at least more free) to do when a Free Speech Principle is accepted. What activities justify an appeal to the concept of freedom of speech? These activities are clearly something less than the totality of human conduct and . . . something more than merely moving one's tongue, mouth and vocal chords to make linguistic noises.
In Irwin Toy, supra, this Court held that "expression" has both a content and a form, and that the two are often connected. Further, the Court asserted that an activity is expressive if it conveys or attempts to convey a meaning; its meaning is its content. Activities cannot be excluded from the scope of guaranteed freedom of expression on the basis of the content or meaning conveyed. In this regard reference was made by this Court in Irwin Toy, supra, at p. 968, to the following underlying rationale for protecting freedom of expression:
. . . to ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream. Such protection is . . . "fundamental" because in a free, pluralistic and democratic society we prize a diversity of ideas and opinions for their inherent value both to the community and to the individual.
Therefore I am of the view that s. 2(b) of the Charter protects all content of expression irrespective of the meaning or message sought to be conveyed.
The content of expression is conveyed through an infinite variety of forms including the written or spoken word, the arts and physical gestures or acts. While the guarantee of free expression protects all content, all forms are not, however, similarly protected. In Irwin Toy, supra, the Court stated that it was not necessary in that case to delineate when and on what basis a form of expression chosen to convey a meaning falls outside the sphere of the guarantee. While that statement applies with equal force to this appeal, I, nevertheless, think it is appropriate at this stage of Charter jurisprudence to make some additional comments.
As I have stated, form and content are often connected. In some instances they are inextricably linked. One such example is language. In my view the choice of the language through which one communicates is central to one's freedom of expression. The choice of language is more than a utilitarian decision; language is, indeed, an expression of one's culture and often of one's sense of dignity and self‑worth. Language is, shortly put, both content and form. I can do no better than to quote the following statement of this Court in Ford, supra, at p. 748:
Language is so intimately related to the form and content of expression that there cannot be true freedom of expression by means of language if one is prohibited from using the language of one's choice. Language is not merely a means or medium of expression; it colours the content and meaning of expression.
Art may be yet another example of where form and content intersect. Is it really possible to conceive, for instance, of the content of a piece of music, a painting, a dance, a play or a film without reference to the manner or form in which it is presented? It seems to me that just as language colours the content of writing or speech, artistic forms colour and indeed help to define the product of artistic expression. As with language, art is in many ways an expression of cultural identity, and in many cases is an expression of one's identity with a particular set of thoughts, beliefs, opinions and emotions. That expression may be either solely of inherent value in that it adds to one's sense of fulfilment, personal identity and individuality independent of any effect it may have on a potential audience, or it may be based on a desire to communicate certain thoughts and feelings to others. I am of the view, therefore, that art and language are two examples where content and form are inextricably linked, and as a result both merit protection under s. 2(b) of the Charter.
There are forms of expression, however, that can be kept distinct from the content which they seek to convey, and which may be excluded from the scope of s. 2(b) of the Charter. In Dolphin Delivery, supra, this Court held that freedom of expression would not extend to protect threats of violence or acts of violence. In Irwin Toy, supra, at p. 970, this Court re-enforced that view when it stated that "a murderer or rapist cannot invoke freedom of expression in justification of the form of expression he has chosen". These forms that have not received protection under s. 2(b) seem to share the feature that they have been criminalized by Parliament. I wish to clearly state that the mere fact that Parliament has decided to criminalize an activity does not render it beyond the scope of s. 2(b) of the Charter. There are many offences in the Criminal Code, R.S.C., 1985, c. C‑46, that may have an "expressive" dimension to them, or to put it otherwise, whose actus reus may consist either in whole or in part of speech or other form of expression. I provide the following lengthy, but still incomplete list to illustrate my point: s. 21(1)(b) and (c) (parties to an offence), s. 22 (counselling a party), s. 51 (intimidating Parliament), s. 53 (inciting mutiny), s. 59 (sedition/seditious libel), s. 63 (unlawful assembly), s. 83 (promoting a prize fight), s. 113 (false statement to procure a fire arms certificate), s. 131 (perjury), s. 136 (giving contradictory evidence), s. 140 (public mischief), s. 143 (advertising reward and immunity), s. 163 (corrupting morals), s. 168 (mailing obscene matter), s. 175 (causing a disturbance), s. 241 (counselling suicide), s. 264.1 (uttering threats), s. 296 (blasphemous libel), s. 301 (defamatory libel), s. 318 (advocating genocide), s. 319 (hate literature), s. 380 (fraud), s. 408 (passing‑off), s. 423 (intimidation), s. 464 (counselling an offence not committed), s. 465 (conspiracy). There are also sections dealing with non‑publication orders in respect of various judicial proceedings such as show‑cause hearings, preliminary hearings, and voir dires.
Most if not all of these listed offences can be categorized into the following areas: offences against the public order, offences related to falsehood, offences against the person and reputation, offences against the administration of law and justice, and offences related to public morals and disorderly conduct. In my view it would be unwise and overly restrictive to a priori exclude from the protection of s. 2(b) of the Charter activities solely because they have been made the subject of criminal offences. In this regard I am in agreement with the following statement of Watt J. in R. v. Smith (1988), 44 C.C.C. (3d) 385 (Ont. H.C.), at pp. 436 and 453:
The mere fact of a prohibition against or a restriction upon expression with penal consequences is not dispositive of the constitutional issue. Neither is the fact that the external circumstances or actus reus of the offence consist, in whole or in part, of speech or other mode of expression, determinative of the challenge. The nature and extent of the prohibition or restriction must, in each case, be examined to determine constitutional admissibility. Of critical importance in many instances is the purpose underlying the provision in issue.
. . .
. . . the boundaries of the regulated area ought not to be too expansively defined, thereby to draw or confine within them substantially the whole of the criminal prohibitions of or restrictions upon speech or other modes of expression. To so determine has the ineluctable effect of reducing, not only the scope of the unregulated area, but equally, the reach of the fundamental freedom itself.
Without settling the matter conclusively, I am of the view that at the very least a law that makes it an offence to convey a meaning or message, however distasteful or unpopular, through a traditional form of expression like the written or spoken word or art must be viewed as a restriction on freedom of expression, and must be justified, if possible, by s. 1 of the Charter. This method is consistent with the broad, inclusive approach to the protected sphere of freedom of expression that this Court has explicitly adopted. By the same token, however, it allows for the exclusion of a narrow set of forms of activities from the scope of s. 2(b).
Obviously, almost all human activity combines expressive and physical elements. For example sitting down expresses a desire not to be standing. Even silence, the apparent antithesis of expression, can be expressive in the sense that a moment's silence on November 11 conveys a meaning. This Court in Irwin Toy put it thusly at p. 969:
It might be difficult to characterize certain day‑to‑day tasks, like parking a car, as having expressive content. To bring such activity within the protected sphere, the plaintiff would have to show that it was performed to convey a meaning. For example, an unmarried person might, as part of a public protest, park in a zone reserved for spouses of government employees in order to express dissatisfaction or outrage at the chosen method of allocating a limited resource. If that person could demonstrate that his activity did in fact have expressive content, he would, at this stage, be within the protected sphere and the s. 2(b) challenge would proceed.
It may appear that this approach would open the door for a murderer or a rapist for example to argue that his activity should be protected under s. 2(b) of the Charter because it seeks to convey a meaning or message. A political assassination is a good example. But as I have already noted this Court has rejected the view that such activity is constitutionally protected. In my view these forms of expression, if they can be called that, are unlike the traditional forms of writing, speaking and art to name a few. The unprotected forms involve direct acts of violence and often involve direct attacks on the physical integrity and liberty of another. It is not without significance that most if not all of these violent forms of expression have been criminalized by Parliament. I pause to reiterate that criminalization is not the acid test of whether the activity is protected by s. 2(b). Where what has been criminalized is the conveyance of a message, however distasteful or unpopular, which is conveyed in a non‑violent form of expression then it is protected by s. 2(b), and the onus then shifts to the state to justify the restriction on freedom of expression. Without deciding the merits of each individual case it may be that a number of our Criminal Code offences that aim at restricting the content or form of expression may have to bear the scrutiny of a s. 1 analysis.
I wish to underscore that delineating a principled approach to interpreting the scope of such fundamental freedoms as expression is an extremely difficult and delicate task. This Court must be sensitive to the imperative of interpreting the rights guaranteed to individuals by the Charter broadly and generously so as to ensure that our citizens receive the full benefit of the Charter's protection. At the same time the Court must be mindful of the concerns of the community as a whole as expressed by our legislators. This Court has, correctly in my view, opted for a broad, inclusive approach to defining the scope of s. 2(b) of the Charter. Exactly what forms of expression will be excluded from s. 2(b) protection is an open question that will be settled on an ongoing basis by this Court as it deals with future cases. It is sufficient to here reiterate that all content of expression is protected while the set of forms that will not receive protection is narrow and includes direct attacks by violent means on the physical liberty and integrity of another person.
With this general background in mind I would now like to set out in summary form the method of analysis that has been developed for freedom of expression cases:
1.The First Step: Is the Activity Within the Sphere of Conduct Protected by Freedom of Expression?
In short, this step involves an assessment of two questions. The first is does the activity have expressive content? If the activity conveys or attempts to convey a meaning then of course it has expressive content and is, therefore, protected under s. 2(b) of the Charter. If it does not have this expressive content then it is not protected and the inquiry ends at this stage.
The second question is even if the activity has expressive content, is the form through which the content is conveyed protected by s. 2(b) of the Charter? Most forms of expression are protected and the mere fact that a form has been criminalized does not take it beyond the reach of Charter protection. If, however, expressive content is conveyed through a violent form that directly attacks the physical liberty and integrity of another person, such as murder or sexual assault, then it is not protected by s. 2(b).
2.The Second Step: Is the Purpose or Effect of the Government Action to Restrict Freedom of Expression?
Once it has been determined that the activity falls within the protected sphere of freedom of expression, it next must be decided whether the purpose or effect of the impugned governmental action was to control attempts to convey meaning through that activity. If the government's purpose is to restrict the content of expression by singling out particular meanings that are not to be conveyed, it necessarily limits the guarantee of freedom of expression. If the government's purpose is to restrict a form of expression in order to control access by others to the meaning being conveyed or to control the ability of the one conveying the meaning to do so, it also limits freedom of expression. In the latter case the governmental action would be restricting a form of expression tied to content, as for example would a rule against handing out pamphlets, even if the restriction purports to control litter. In sum, if the government's purpose is to restrict attempts to convey a meaning there has been a limitation by law of s. 2(b) and a s. 1 analysis is required to determine if the law is inconsistent with the provisions of the Constitution.
In the case where the government's purpose was not to control or restrict attempts to convey a meaning, the Court must still determine if the effect of the government action restricts freedom of expression. In such a case the burden is on the plaintiff to demonstrate that the effect occurred. In doing so this Court has held in Irwin Toy, supra, at pp. 976‑77, that the plaintiff must state the claim with reference to the following principles and values underlying the freedom: (1) seeking and attaining truth is an inherently good activity; (2) participation in social and political decision‑making is to be fostered and encouraged; and (3) the diversity in forms of individual self‑fulfilment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed. In demonstrating that the effect of a government's action was to restrict freedom of expression, a plaintiff would have to show how the activity promotes at least one of these values. I hasten to reiterate that the precise articulation of what kinds of activities promote these values is a matter for judicial appreciation to be developed on an ongoing basis. If the effect of the government action does restrict one's freedom of expression, then a recourse to a s. 1 analysis is necessary.
VIII. Application to the Case at Bar
There is no question, in my view, that the purpose of s. 195.1(1)(c) of the Criminal Code is to restrict a particular range of content of expression in the name of certain state objectives. The section prohibits the communication of, or the attempt to communicate, a commercial message to any member of the public. This Court has already stated that commercial expression is protected by s. 2(b) of the Charter. As we stated in Ford, supra, at pp. 766‑67:
Given the earlier pronouncements of this Court to the effect that the rights and freedoms guaranteed in the Canadian Charter should be given a large and liberal interpretation, there is no sound basis on which commercial expression can be excluded from the protection of s. 2(b) of the Charter.
This view was reiterated in Irwin Toy, supra. The impugned section of the Code aims at restricting commercial expression in perhaps its purest form. The section prohibits the communication of one person to another, in public, of information relating to the exchange of certain services for money. The prohibition is not just a "time, place or manner" restriction. Rather, it aims specifically at content. The prohibited communication relates to a particular message sought to be conveyed, namely the communication for the purpose of engaging in prostitution. Most often this type of communication involves an offer and an acceptance. The offer is in respect of certain sexual services and the acceptance occurs when a price has been agreed upon for the service. It should be noted, in addition, that the act for which the communication takes place, namely the exchange of sexual services for money, is not itself illegal. There is no question therefore of forming a contract for an unlawful purpose. Moreover, it seems apparent from the substantial body of material filed in respect of a potential s. 1 analysis that the purported mischief at which the provision aims is the harm caused by the message itself. Furthermore, this provision not only restricts freedom of expression directly by restricting the content of expression, but also restricts access by others to the message being conveyed by prohibiting the one attempting to convey the message from doing so. Therefore, I conclude that s. 195.1(1)(c) of the Code restricts freedom of expression as guaranteed by s. 2(b) of the Charter, in that the section aims at prohibiting a particular content of expression and at prohibiting access to the message sought to be conveyed.
In respect of s. 193 of the Code, I understand the argument of the Contradictor added by the order of the Chief Justice of Manitoba to be as follows. He submits that s. 2(b) of the Charter is violated by the combination of ss. 193 and 195.1(1)(c) because the effect of s. 193 is to make it illegal to carry on the trade of prostitution at a fixed location. The only option for the prostitute is to seek out and solicit clients in public, which is made illegal by s. 195.1(1)(c). In sum then, there does not seem to be an independent attack on s. 193. In view of the position I have taken on the question of whether s. 195.1(1)(c) restricts freedom of expression, there is no need to rely on the role of s. 193 to reach the conclusion that a freedom under the Charter has been restricted. Therefore, since s. 195.1(1)(c) restricts freedom of expression, it falls to be justified, if possible, under s. 1 of the Charter.
IX. Section 1 Analysis
Freedom of expression under s. 2(b) of the Charter is guaranteed as a fundamental freedom. Its importance and its value are surely beyond question, and have been recognized by this Court long before the adoption of the Charter. I refer, for example, to the words of Rand J. in Switzman v. Elbling, [1957] S.C.R. 285, at p. 306, where he stated that freedom of expression was "little less vital to man's mind and spirit than breathing is to his physical existence". It must be recognized, however, that despite the singular importance of freedom of expression, it is subject to limitations under s. 1 of the Charter. The procedure to be followed when the state is attempting to justify a limit on a right or freedom under s. 1 has been well established by this Court in a number of cases, the pivotal one being R. v. Oakes, supra. In order to establish that a limit is reasonable and demonstrably justified in a free and democratic society, two criteria must be established. First, the legislative objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be of sufficient importance to warrant overriding a constitutionally protected right or freedom. The objective must be pressing and substantial before it can be characterized as sufficiently important to justify the restriction on the right or freedom. Second, once a sufficiently important objective is established, the party seeking to invoke s. 1 must show that the means chosen are reasonable and demonstrably justified in a free and democratic society. This involves a "proportionality test". In this part of the test, courts balance the interests of society with those of individuals and groups. There are three important components to the proportionality test: (1) the measures adopted must be rationally connected to the achievement of the objective in question; they must not be arbitrary, unfair or based on irrational considerations, (2) the means chosen, even if rationally connected to the objective, must impair as little as possible the right and freedom in question, and (3) there must be a proportionality between the effects of the measures responsible for limiting the Charter right or freedom, and the objective which has been identified as being pressing and substantial. In respect of the last component of the test, Dickson C.J. stated in Oakes, supra, at p. 140, that "[t]he more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society".
The Legislative Objective
Both the appellants concede in their factums that s. 195.1(1)(c) as a whole attempts to address a substantial and pressing societal concern, specifically the mischief caused by street soliciting. In my view, however, it is necessary for the application of s. 1 of the Charter to this case to outline in some depth exactly what mischief the legislation aims at. This is necessary to properly measure the means adopted by the legislators against the objective at which they aim.
To fully appreciate the purposes underlying the impugned section it would be helpful to first review the recent history of prostitution legislation. As I have noted above, prostitution itself is not a crime in Canada. Our legislators have instead, chosen to attack prostitution indirectly. The Criminal Code contains many prohibitions relating to the act of taking money in return for sexual services. Among the offences that relate to prostitution are the bawdy‑house provisions, the procuring and pimping provisions, as well as other more general offences that indirectly have an impact on prostitution related activities; for example provisions such as disturbing the peace. In my view, these laws indicate that while on the face of the legislation the act of prostitution is not illegal, our legislators are indeed aiming at eradicating the practice. This rather odd situation wherein almost everything related to prostitution has been criminalized save for the act itself gives one reason to ponder why Parliament has not taken the logical step of criminalizing the act of prostitution. Many theories have been offered as a response to this question, but it seems to me that one possible answer is that, as a carryover of the Victorian Age, if the act itself had been made criminal, the gentleman customer of a prostitute would have been also guilty as a party to the offence. That situation has now been rectified in that the section reaches out to the customers of prostitutes, although the act itself is still not illegal.
At one point in our history, specifically between the years 1869‑1972, our legislation made prostitution a "status offence". This was accomplished through the use of vagrancy laws such as the one that appeared in the Criminal Code, R.S.C. 1970, c. C‑34, s. 175(1)(c):
(c) being a common prostitute or night walker is found in a public place and does not, when required, give a good account of herself;
That provision was repealed by S.C. 1972, c. 13, s. 12, and was replaced by a law based on the concept of "solicitation". The new s. 195.1 made it a summary conviction offence to solicit any person in a public place for the purpose of prostitution. Courts differed on the interpretation of the term "solicit" until this Court's decision in Hutt v. The Queen, [1978] 2 S.C.R. 476. In that case Spence J., speaking for the majority, held at p. 482 that in order to be seen as a crime, "soliciting" had to be "pressing or persistent". In support of this conclusion Spence J. had occasion to pass comment on the purpose underlying this section of the Code, at p. 484:
Section 195.1 is enacted in Part V which is entitled "DISORDERLY HOUSES, GAMING AND BETTING". Offences in reference to all three of these subject‑matters are offences which do contribute to public inconvenience or unrest and . . . Parliament was indicating that what it desired to prohibit was a contribution to public inconvenience or unrest.
In light of this decision, law enforcement officials indicated that the control of street prostitution was made very difficult if not impossible. In 1983, the federal government established the Special Committee on Pornography and Prostitution, hereinafter referred to as the Fraser Committee, to study the problem of street prostitution and to report to the Minister of Justice. The Fraser Committee reported its findings in 1985, and concluded that prostitution was a social problem that required both legal and social reforms. The Committee recommended that s. 195.1 be repealed, and that the nuisance aspect of street prostitution be dealt with via amendments to the sections of the Code in respect of disorderly conduct. The legislative response came in the form of Bill C‑49 which was passed in December of 1985, and which established the current provision of the Code that is under constitutional scrutiny in the case at bar.
One of the primary objectives of the s. 195.1(1)(c) is to curb the nuisances caused by the public or "street" solicitation of prostitutes and their customers. These nuisances include impediments to pedestrian and vehicular traffic, as well as the general confusion and congestion that is accompanied by an increase in related criminal activity such as possession and trafficking of drugs, violence and pimping. The nuisance aspect of the law, as it relates to traffic problems, is not, however, its only objective. There are many activities that are carried on that cause nuisance in the form of obstructing pedestrian and vehicular traffic. In this case however we are dealing with a particular form of activity that brings with it other associated criminal activity, and which, as the Ontario Advisory Council on the Status of Women states, is at its most basic level a form of slavery. In a brief prepared in 1984 entitled Pornography and Prostitution, the Advisory Council had the following to say in respect of prostitution:
There is a real victim in prostitution -- the prostitute herself. All women, children and adolescents are harmed for prostitution. . . . Prostitution functions as a form of violence against women and young persons. It is certainly a blatant form of exploitation and abuse of power. . . . Prostitution is related to the traditional dominance of men over women. The various expressions of this dominance include a concept of women as property and the belief that the sexual needs of men are the only sexual desires to be given serious consideration. Prostitution is a symptom of the victimization and subordination of women and of their economic disadvantage.
I note that while prostitution is an activity in which both men and women participate, the data indicates that women overwhelmingly outnumber men as sellers of sexual services. In my view part of the legislative objective in enacting s. 195.1(1)(c) is to give law enforcement officials a way of controlling prostitution that occurs in the "street" as it were. It is in the street that many prostitutes begin in the trade as young runaways from home. The streets provide an environment for pimps and procurers to attract adults (usually, as the data shows, women) and adolescents into the trade by befriending them and often offering them short‑term affection and economic assistance. Quite often, it is the young who are most desirable to pimps as they bring in the most money and are the easiest to control. This leads ultimately to a relationship of dependency which is often reinforced by the pimp getting the prostitute addicted to drugs which are used to exercise control over the prostitute. In that process the pimp's control over the prostitute is such that physical violence and in some cases brutality is not uncommon. Prostitution, in short, becomes an activity that is degrading to the individual dignity of the prostitute and which is a vehicle for pimps and customers to exploit the disadvantaged position of women in our society. In this regard the impugned section aims at minimizing the public exposure of this degradation especially to young runaways who seek refuge in the streets of major urban centres, and to those who are exposed to prostitution as a result of the location of their homes and schools in areas frequented by prostitutes and who may be initially attracted to the "glamourous" lifestyle as it is described to them by the pimps. Further, it is not just the exposure to potential entrants into the trade that is of concern to the legislators. An additional aspect of the objective of minimizing public exposure of prostitution, is the fact that many persons who are not interested in prostitution are often propositioned either as prostitutes or prospective customers.
In sum then, I find that the legislative objectives of the section go beyond merely preventing the nuisance of traffic congestion and general street disorder. There is the additional objective of minimizing the public exposure of an activity that is degrading to women with the hope that potential entrants in the trade can be deflected at an early stage and of restricting the blight that is associated with public solicitation for the purposes of prostitution.
Much evidence has been filed in this appeal to support the legislative objectives that I have briefly outlined above. I find especially instructive the materials filed and referred to by the Attorney General for Ontario who intervened in this matter, which include Minutes from the Legislative Committee on Bill C‑49, various working papers prepared by the Department of Justice, sociological material on the demographics of prostitution, and viva voce evidence given before Provincial Court Judge Bernhard in the case of R. v. Smith, the Ontario case dealing with s. 195.1(1)(c) of the Code. Therefore, as conceded by the appellants, I find that s. 195.1(1)(c) of the Code does address pressing and substantial concerns, specifically the curbing of nuisances caused by the public solicitation of prostitution, the curbing of related criminal activity such as the possession and trafficking of drugs, violence and pimping, the curbing of the exposure of street solicitation to uninterested pedestrians and property owners and the curbing of the exposure to potentially vulnerable and impressionable young people of what is in many respects a degrading, exploitive and, in some cases, dangerous activity.
Proportionality Test
1. Rational Connection
The first component of the proportionality test demands that the measures adopted must be carefully designed to achieve the legislative objective; they ought not to be arbitrary, unfair or based on irrational considerations. There must, in other words, be a link or nexus based on and in accordance with reason, between the measures enacted and the legislative objective. In my view, the scheme set out in s. 195.1 of the Code is rationally connected to the objectives of curbing nuisances and related criminal activities associated with public solicitation of prostitution. Parliament has sought, by criminalizing certain conduct that produces the nuisances and mischief noted above, to reduce or limit the mischief thereby created. Regulating or prohibiting the cause is at least one method of controlling its effects. A piece of legislation that proceeds upon such a premise does, in my view, exhibit a rational connection between the measures and the objective. I do pause to note, however, that the appellants correctly point out that the act of soliciting by a single prostitute or customer may not by itself produce a nuisance. But this argument, with respect, misses the point that the legislation is designed to prevent the congregation of prostitutes and customers in the streets. It is the cumulative effect of this congregation that produces the nuisance and blight, and as such each act of soliciting contributes to the mischief. Therefore, I am of the view that s. 195.1(1)(c) is rationally connected to the legislative objective.
2. The Limit Should Impair as Little as Possible
In order to comply with the second component of the proportionality test, the means chosen to achieve the objective should impair as little as possible the right or freedom in issue. This Court has recognized, however, that courts should not substitute a judicial opinion for a legislative one in respect of where to draw a precise line as to what is a reasonable limit. As the Chief Justice stated in R. v. Edwards Books and Art Ltd., supra, at p. 783:
. . . 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 current version of s. 195.1 was passed by Parliament after the proclamation of the Charter. During the lengthy consideration of how to deal with the problem of street solicitation, it is apparent from the record that various alternatives were explored and certainly Charter considerations were adverted to and raised. See for example Chapter 3 of the Fraser Committee report and the debates in the House of Commons and before the Legislative Committee in respect of Bill C‑49. What is at issue then, is whether there is some reasonable alternative scheme which would allow the government to achieve its objective with fewer detrimental effects on the freedom: Edwards Books and Art, supra, per Dickson C.J., at pp. 772‑73. This is a reminder that the legislator should be given adequate scope to address, in a practical way, the pressing and substantial objectives facing it.
I note at the outset that street solicitation in the context of prostitution is a criminal law matter. Attempts by provincial governments and municipalities to deal with the problem have been found to be constitutionally infirm. For example, see this Court's decision in Westendorp v. The Queen, [1983] 1 S.C.R. 43. Therefore, if legislation is to be used to address the problem it would, from a division of powers perspective, have to come from the federal government in its capacity to legislate in the area of criminal law.
A determination of the degree of the impairment of the section on the freedom in question is not a purely theoretical exercise. The assessment of the impairment should have regard for the nature of the incursion and the context in which it takes place. In terms of s. 195.1(1)(c), there is not a complete impairment of freedom of expression. There is no doubt that the section applies to all forms of communication. It is however, limited to those forms used in a public place or a place open to public view. The impairment is additionally restricted by subject‑matter; only communications made for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute are prohibited. The appellants have submitted that the section is not proportionate to the legislative objective because it is too broad. In this regard I wish to adopt the reasoning of Kerans J.A. of the Alberta Court of Appeal in R. v. Jahelka; R. v. Stagnitta, supra, at pp. 115‑16, a case that also dealt with the constitutionality of s. 195.1(1)(c):
It was also argued for the respondents that the reach of the legislation is overly broad in that it strikes at any communication for the purposes of prostitution, and not just a communication between a prostitute and a prospective customer. It is said, for example, that two friends can be guilty under the section if one asks the other where a prostitute might be found. . . .
In my view, the respondents are guilty of putting an exaggerated interpretation on a law in order to subject it to constitutional attack. The purpose of this legislation is acknowledged. It is not to prohibit talk about prostitution. It is to proscribe street‑hawking by prostitutes and their customers. In my view, the proper interpretation of this criminal statute is that it applies only to a communication from a common prostitute to a member of the public with a view to her or his prostitution or, alternatively, by a member of the public to another, whom he or she thinks to be a common prostitute, for the purpose of engaging his or her sexual services. I agree with Alberta that the adoption of the words `for the purpose of obtaining the services of a prostitute' was employed for no purpose other than that both customers and prostitutes be guilty and to avoid the pitfalls attached to a word like `offer'. So understood, the provision is not overly broad.
Shortly stated then, the impairment of freedom of expression is limited by place and purpose. It is only when the communication occurs in a context wherein the proscribed place and purpose coincide that the section becomes engaged and the freedom, correspondingly, is impaired. Communications for the purpose of prostitution that take place other than in public do not fall within the section, and communications in public that are not, strictly speaking, for the purpose of engaging the services of prostitute are similarly not within the proscription. 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. The focus placed by the section on communications in public for the purpose of prostitution reaches the precise activity from which the harm aimed at flows. In this regard I quote from the Sixteenth Report of the Criminal Law Revision Committee in the United Kingdom entitled Prostitution in the Street (1984), at p. 4:
What the law should be concerned with are offers, whether made by men or women, in circumstances which can cause a nuisance. We say "can cause a nuisance" because an act of soliciting by a single prostitute or kerb crawler does not necessarily amount to a nuisance; but when prostitutes and clients congregate in numbers, as commonly occurs, there is no doubt that this does amount to a nuisance. In this sense every act of soliciting has in it the potential for causing a nuisance. . . .
But if the law is made too Draconian or enforced insensitively or women who are not prostitutes are mistakenly arrested and charged as such the public may regard the law as a danger to personal liberty. In our opinion the law should be directed against the prostitutes who ply their trade in the streets and against men who cause nuisance in the course of looking for prostitutes or who cause fear when soliciting for sexual purposes.
In my view then, the section at issue does impair freedom of expression as little as reasonably possible in order to achieve the legislative objective. Parliament was faced with a myriad of views and options from which to choose in respect of dealing with the problem of street solicitation for the purpose of prostitution. The role of this Court is not to second‑guess the wisdom of policy choices made by our legislators. Prostitution, and specifically, the solicitation for the purpose thereof, is an especially contentious and at times morally laden issue, requiring the weighing of competing political pressures. The issue for this Court to determine is not whether Parliament has weighed those pressures and interests wisely, but rather whether the limit they have imposed on a Charter right or freedom is reasonable and justified. Parliament chose to enact s. 195.1 to deal with what was clearly viewed as a pressing and substantial social problem. It has done so in a way that is rationally connected to the legislative objective, and furthermore in a way that has specific regard for the place and purpose of the communication, thereby demonstrating a concern for limiting the impairment of expression to that which is minimally necessary to achieve the objective. Therefore, I conclude that s. 195.1(1)(c) satisfies the first two components of the proportionality test under s. 1 of the Charter.
3. Proportionality Between Effects and Objective
The final element to be satisfied under the s. 1 analysis requires that there be a proportionality between the effects of the measures which limit the Charter right or freedom and the objective or purpose that animates the legislation. The more severe the damaging effects of the measure, the more important the underlying objective must be in order to be constitutionally justified. If the effects of the measure on individuals or groups are wholly out of proportion with the legislative objective, the limitation cannot be one that is reasonable and demonstrably justified in a free and democratic society.
The section at issue seeks only to prevent the congregation of prostitutes and their customers in public in the interests of avoiding the creation of public nuisance and to limit the exposure of prostitution and related activities such as pimping to uninterested individuals and specifically to young people who may be attracted to the lure of juvenile prostitution, an activity that is in effect degrading and exploitive. Prostitution itself is not proscribed, nor is its solicitation in private. In addition it cannot be said that Canada's response to the problem is out of step with international responses. In fact, the Fraser Committee noted in its review of foreign legislation, that some jurisdictions, specifically the United States, have adopted regimes that are draconian by our standards: see Chapter 38 of the Fraser Committee report.
In assessing the proportionality between the effects of a measure and the objective a further criterion to consider is "the degree to which the measures which impose the limit trench upon the integral principles of a free and democratic society": R. v. Oakes, supra, at pp. 139‑40. In Oakes the Chief Justice noted the essential elements of a free and democratic society at p. 136:
. . . respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.
I conclude, in view that the extent of the restriction on freedom of expression is limited to place and purpose, that the impact on these integral principles of a free and democratic society is minimal. There is no doubt, as I have noted previously, that freedom of expression is of primary importance to our free and democratic society. It is precisely for that reason that this Court has adopted a liberal and generous interpretation of the scope of s. 2(b) of the Charter. It is also the case, however, that in weighing the serious social harms caused by public solicitation for the purpose of prostitution against the restriction on expression, I find that the challenged section is not disproportionate with its effects. In addition, it should be noted that concerns about the wisdom or effectiveness of the section have been taken into account by Parliament. The Act that amended the Criminal Code to enact the current s. 195.1 includes within it s. 2 which mandates that a comprehensive review of the provisions is to be undertaken by a committee of the House of Commons three years from the date of enactment, with a report on the review to be tabled in the House of Commons including a statement of any changes the committee recommends: see S.C. 1985, c. 50. s. 2. In summary then, when one weighs the nature of the legislative objective against the extent of the restriction on the freedom in question, there is no disproportionality.
X. Conclusion in Respect of s. 1
Section 195.1(1)(c) of the Criminal Code is designed to achieve an objective of sufficient importance that warrants overriding a constitutionally protected freedom. In addition, the means chosen by Parliament are rationally connected to the objective, impair the freedom as little as possible, and are in proportion to the objective. Therefore, s. 195.1(1)(c) is a limit that is reasonable and demonstrably justified in a free and democratic society, and the last constitutional question should be answered accordingly.
I would dismiss the appeal and answer the constitutional questions as follows:
Question1.Is s. 193 of the Criminal Code of Canada inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms?
Answer: No.
Question2.Is s. 195.1(1)(c) of the Criminal Code of Canada inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms?
Answer: No.
Question3.Is the combination of the legislative provisions contained in ss. 193 and 195.1(1)(c) of the Criminal Code of Canada inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms?
Answer: No.
Question4.Is s. 193 of the Criminal Code of Canada inconsistent with s. 2(b) of the Canadian Charter of Rights and Freedoms?
Answer: This question does not have to be answered.
Question 5.Is s. 195.1(1)(c) of the Criminal Code of Canada inconsistent with s. 2(b) of the Canadian Charter of Rights and Freedoms?
Answer: Yes.
Question6.Is the combination of the legislative provisions contained in s. 193 and s. 195.1(1)(c) of the Criminal Code of Canada inconsistent with s. 2(b) of the Canadian Charter of Rights and Freedoms?
Answer:No, except to the extent that s. 195.1(1)(c) of the Criminal Code restricts s. 2 (b) of the Charter.
Question7.If s. 193 or s. 195.1(1)(c) of the Criminal Code of Canada or a combination of both or any part thereof are inconsistent with either s. 7 or s. 2(b) of the Canadian Charter of Rights and Freedoms, to what extent, if any, can such limits on the rights and freedoms protected by s. 7 or s. 2(b) of the Charter be justified under s. 1 of the Charter and thereby rendered not inconsistent with the Constitution Act, 1982?
Answer:To the extent that s. 195.1(1)(c) restricts s. 2(b) of the Charter, it is a reasonable and demonstrably justified limit under s. 1 of the Charter.
//Wilson J.//
The reasons of Wilson and L'Heureux-Dubé JJ. were delivered by
WILSON J. (dissenting) ‑- I have had the benefit of the reasons of my colleague, Justice Lamer. I propose to approach the issues in a different order. I will deal first with the question whether s. 193 or s. 195.1(1)(c) of the Criminal Code, R.S.C. 1970, c. C‑34, or a combination of both violates s. 2(b) 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 as a reasonable limit or limits on s. 2(b) and thereafter with the question whether either or a combination of both of these sections violates s. 7 of the Charter and, if so, whether either one or a combination of both can be justified under s. 1 as a reasonable limit or limits on s. 7.
For ease of reference I reproduce here the two provisions of the Criminal Code (as they were numbered at the time of the appeal) that are under attack:
193. (1) Every one who keeps a common bawdy‑house is guilty of an indictable offence and is liable to imprisonment for 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
(c) 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.
195.1 (1) Every person who in a public place or in any place open to public view
(a) stops or attempts to stop any motor vehicle,
(b) impedes the free flow of pedestrian or vehicular traffic or ingress to or egress from premises adjacent to that place, or
(c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction.
(2) In this section, "public place" includes any place to which the public have access as of right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view.
While I have reproduced the whole of s. 195.1 in order to provide the context of the section it is important to note that only para. (c) of s. 195.1(1) is actually under attack.
1. Sections 193 and 195.1(1)(c) of the Code and s. 2(b) of the Charter
(i) Section 2(b) of the Charter
My colleague, Justice Lamer, has reviewed some of this Court's observations in RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790, and Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, concerning the underlying rationale for the protection of freedom of expression in s. 2(b) of the Charter. I agree with him that these cases stand for the proposition that activities cannot be excluded from the scope of the guarantee on the basis of the content or meaning conveyed. I do not find it necessary, however, to decide in this case which forms of expression, if any, or which types of message, if any, do not fall under the protection of s. 2(b). I confine myself to the form and content which is before us and the question whether or not it is protected.
This Court stated in Ford at p. 764:
The post‑Charter jurisprudence of this Court has indicated that the guarantee of freedom of expression in s. 2(b) of the Charter is not to be confined to political expression. In holding, in RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, that secondary picketing was a form of expression within the meaning of s. 2(b) the Court recognized that the constitutional guarantee of freedom of expression extended to expression that could not be characterized as political expression in the traditional sense but, if anything, was in the nature of expression having an economic purpose.
The Court went on to stress that given "the earlier pronouncements of this Court to the effect that the rights and freedoms guaranteed in the Canadian Charter should be given a large and liberal interpretation, there is no sound basis on which commercial expression can be excluded from the protection of s. 2(b) of the Charter": see Ford at pp. 766‑67.
In Irwin Toy this Court recapitulated what it had said in Ford and Devine and stated at p. 974:
If the government's purpose is to restrict the content of expression by singling out particular meanings that are not to be conveyed, it necessarily limits the guarantee of free expression. If the government's purpose is to restrict a form of expression in order to control access by others to the meaning being conveyed or to control the ability of the one conveying the meaning to do so, it also limits the guarantee. On the other hand, where the government aims to control only the physical consequences of certain human activity, regardless of the meaning being conveyed, its purpose is not to control expression.
I believe we see in this case a good example of government's attempt to deal with the harmful consequences of expressive activity, not by dealing directly with those consequences, but by placing constraints on the meaning sought to be conveyed by the expressive activity. Rather than deal directly with the variety of harmful consequences which the Attorney General of Canada and others submit ultimately flow from the communicative act, s. 195.1(1)(c) prohibits the communicative act itself in the hope that this will put an end to such consequences. To paraphrase this Court's observations in Irwin Toy, this is not a case in which the government has sought to control the physical consequences of certain human activity regardless of the meaning being conveyed. Rather, this is a case where the government's purpose is to restrict the content of expression by singling out meanings that are not to be conveyed in the hope that this will deal with the physical consequences emanating from expressive activity that carries the prohibited meaning.
This approach has obvious weaknesses. Section 195.1(1)(c) does not make clear the harmful consequences that it is designed to control. Nor does it limit the range of instances in which the expressive activity will be prohibited by requiring a link between the expressive activity and the harmful consequences. More precisely, s. 195.1(1)(c) does not require that the Crown show that the expressive act in a given case is in fact likely to lead to undesired consequences such as noise or traffic congestion. Instead, the provision prohibits all communicative acts for the purpose of engaging in prostitution or obtaining the sexual services of a prostitute that take place in public regardless of whether a given communicative act gives rise to harmful consequences or not.
The provision prohibits persons from engaging in expression that has an economic purpose. But economic choices are, in my view, for the citizen to make (provided that they are legally open to him or her) and, whether the citizen is negotiating for the purchase of a Van Gogh or a sexual encounter, s. 2(b) of the Charter protects that person's freedom to communicate with his or her vendor. Where 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 content of communicative activity is proscribed, then the provision must, in my view, be justified as a reasonable limit under s. 1 of the Charter if it is to be upheld.
With respect to s. 193 of the Code, I do not see how the provision can be said to infringe the guarantee of freedom of expression either on its own or in combination with s. 195.1(1)(c). In my view, only s. 195.1(1)(c) limits 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. I do not believe that "expression" as used in s. 2(b) of the Charter is so broad as to capture activities such as keeping a common bawdy‑house.
(ii) Parliament's Objective in Passing s. 195.1(1)(c)
The parties and interveners in this appeal and the related appeals in R. v. Stagnitta, [1990] 1 S.C.R. 000, and R. v. Skinner, [1990] 1 S.C.R. 000, made a number of submissions with respect to the legislative objective underlying s. 195.1 in general and s. 195.1(1)(c) in particular. These may be grouped into three categories of gradually widening scope.
(1) Nuisance in the Streets
The appellant Stagnitta and the respondent Skinner give s. 195.1(1)(c) its narrowest interpretation. They submit that the objective underlying the legislation is the protection of the public's right to the unobstructed use of the streets and sidewalks. They do, however, acknowledge that the legislation may also be designed to prevent citizens from being disrupted in their enjoyment of public residential areas by activities incidental to street soliciting.
(2) Social Nuisance
In the overwhelming majority of submissions made to the Court it was claimed that the objective of the legislation was the control of a "social" nuisance. The Attorney General of Canada submitted that s. 195.1 as a whole was designed, not just to deal with the interference by prostitutes and their customers of the citizens' use of public places, but also to address the secondary effects of street soliciting. These secondary effects, which were in his view the primary motivation for the legislation, included "all night noise, traffic congestion, trespass, reduced property values and other adverse consequences". The specific focus of s. 195.1(1)(c), on the other hand, was to deal with the "precise activity from which all the harm flows", namely street solicitation. The appellants and the respondent in this appeal are all in substantial agreement with this submission although they obviously differ with respect to whether the impugned provision is an acceptable way in which to achieve the stated objective.
The Attorneys General for Alberta and Saskatchewan cover similar ground. They agree that "[t]he objective of s. 195.1(1) of the Criminal Code is to deal with the problem of bartering for sexual services in public places" and they point to a list of "harms" which they say the legislation seeks to prevent ‑‑ the harassment of women, street congestion, noise, decreased property values, adverse effects on businesses, increased incidents of violence, and the impact of street soliciting on children who cannot avoid seeing what goes on.
The Attorney General of British Columbia also submits that s. 195.1(1)(c) is specifically designed to deal with the harms caused by the "act of the prostitute in conveying his or her message". The provision seeks to prevent neighbourhoods lapsing into "total disintegration". The Attorney General of Nova Scotia states that Parliament wished to protect the public from "impeded pedestrian and vehicular traffic, the indignity of being propositioned, exposure of children to the vices of adults, viewing the actions and hearing the communications related to prostitution in "a public place"".
I think it important to emphasize, however, that those whose submissions fall into this broader category of "social" nuisance do not claim that the aim of the legislation is to prohibit prostitution. Rather, they submit that it seeks to prohibit sales of sexual services from taking place in the public domain. The Attorney General of Manitoba, the respondent in this appeal, notes that the legislation does not purport to prevent prostitution‑related activities in circumstances where no public nuisance is created. The Attorney General of Canada states that "Parliament did not seek to suppress solicitation, but only to remove it from the public areas where it was creating the obvious harm". The Attorney General of Nova Scotia acknowledges that prostitution is not a criminal offence and that "s. 195.1(1)(c) is not intended to eradicate prostitution but focuses on the undesirability of bringing prostitution into the public forum". Hence the characterization of the legislative objective as a "social" rather than a strictly legal nuisance.
(3) Prostitution‑Related Activities
The Attorney General for Ontario goes further than any other Attorney General who presented submissions in this appeal and in Stagnitta and Skinner. He submits that s. 195.1 is designed to deal with a much wider array of problems associated with prostitution including violence, drug addiction, crime and juvenile prostitution. While he agrees that the legislation is aimed at many of the aspects of public nuisance discussed by his colleagues, he points out that the legislation is also directed to drug addiction and juvenile prostitution because of the risk that young children who are exposed to street soliciting will be drawn into the world of drugs and prostitution.
Which characterization of Parliament's objective seems most accurate? Lamer J. appears to have been persuaded by the position taken by the Attorney General for Ontario. He concludes that the legislation is an attack on prostitution, albeit an indirect one, and that part of the legislative objective sought to be achieved through s. 195.1(1)(c) was to give law enforcement officials a way of controlling prostitution in the streets. He points out that "[t]he streets provide an environment for pimps and procurers to attract adults (usually, as the data shows, women) and adolescents into the trade by befriending them and often offering them short-term affection and economic assistance" (p. 000). He agrees with the Attorney General for Ontario's submission that it is the young who are most desirable to pimps as they bring in the most money and are the easiest to control. Young girls become dependent on pimps and are often manipulated through the use of drugs. Physical violence may result. My colleague concludes that prostitution is degrading to the individual dignity of the prostitute and a vehicle for pimps and customers to exploit the disadvantaged position of women in our society. Thus, Lamer J. finds that the legislature's objective goes beyond preventing congestion in the streets and sidewalks; it has the additional objective of restricting the entry of young girls into an activity that is degrading to women and is associated with drugs, crime and physical abuse.
While I do not disagree with my colleague that prostitution is, for the reasons he gives, a degrading way for women to earn a living, I cannot agree with his conclusion that s. 195.1(1)(c) of the Code attempts to address that problem. With the exception of the Attorney General for Ontario, the parties and interveners in this appeal and in Skinner and Stagnitta were unanimously of the view that the legislation does not seek to deal with prostitution per se but is directed only at the public or social nuisance aspect of the sale of sexual services in public. Indeed, the Attorneys General of Canada, Nova Scotia and Manitoba went out of their way to emphasize that s. 195.1(1) does not prohibit prostitution which remains a perfectly legal activity. It does not even prohibit solicitation; it only prohibits solicitation in public places. In my view, the wording of s. 195.1(1) in general and s. 195.1(1)(c) in particular supports that view.
But if the legislative objective was not to criminalize prostitution per se, which of the narrower objectives did Parliament have in mind? In my view, it is once again important to look to the wording of the impugned section. While ss. 195.1(1)(a) and (b) refer to activities that "stop any motor vehicle" or that impede "the free flow of pedestrian or vehicular traffic", s. 195.1(1)(c) refers not just to stopping persons (although it does include that) but to communicating or attempting to communicate with persons. Accordingly, activities caught by s. 195.1(1)(c) need not result in the kinds of problems addressed in ss. 195.1(1)(a) and (b). It was not alleged, for example, in either Stagnitta or Skinner that the accuseds' activities had impeded traffic or led to congestion. The accuseds were simply charged with communicating in a public place for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute. While the circumstances in which charges are laid under the section are obviously not determinative of the objective sought to be achieved by the legislation, they do reveal how the law enforcement agencies are interpreting and applying it. They clearly interpreted s. 195.1(1)(c) in Stagnitta and Skinner as intended to do more than keep the streets and sidewalks free of congestion. In my view, they were not mistaken in this regard. Indeed, this is why s. 195.1(1)(c) was considered a necessary addition to ss. 195.1(1)(a) and (b). The difficulty, however, is to determine just how much more the impugned provision was intended to catch.
I have concluded that the submissions made to the Court by the majority of counsel are correct and that the fundamental concern attempted to be addressed in s. 195.1(1)(c) is the social nuisance arising from the public display of the sale of sex. I believe this is clear from the requirement that the communication or attempted communication be for the purchase or sale of sexual services and that such communication occur in a public place or in a place open to public view. Parliament's concern, I believe, goes beyond street or sidewalk congestion which are dealt with in paras. (a) and (b). The legislature clearly believes that public sensitivities are offended by the sight of prostitutes negotiating openly for the sale of their bodies and customers negotiating perhaps somewhat less openly for their purchase. The reality, in other words, is accepted and permitted. Neither prostitution nor solicitation is made illegal. But the high visibility of these activities is offensive and has harmful effects on those compelled to witness it, especially children. This being the legislative approach to prostitution it forecloses, in my view, any suggestion that in s. 195.1(1)(c) Parliament intended to stamp out all the ills and vices that my colleague sees as flowing from prostitution. The provision addresses only one narrow aspect of prostitution namely solicitation in public places.
Given then that s. 195.1(1)(c) infringes upon freedom of expression under s. 2(b) of the Charter and that the legislative objective in passing it is the one we have identified, does the provision constitute a reasonable limit on the freedom which is justifiable in a free and democratic society? Does it, in other words, meet the tests laid down by this Court in R. v. Oakes, [1986] 1 S.C.R. 103?
(iii) Section 1 of the Charter
None of the counsel appearing before us on this appeal seriously argued that the nuisance caused by street solicitation, at least in the major centres of population in the country, was not a pressing and substantial concern. Indeed, most acknowledged it to be so and I agree. The first test in Oakes is therefore met.
The next question under Oakes is whether s. 195.1(1)(c) is rationally connected to the prevention of the nuisance. I believe it is. 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. If communication for this purpose or attempts to communicate for this purpose are criminalized it must surely be a powerful deterrent to those engaging in such conduct.
But is the legislation proportionate to the objective sought to be achieved? To answer this we must direct our attention to the scope of the legislation.
On September 9, 1985, when the present s. 195.1 was introduced in the House of Commons, the then Minister of Justice stated:
The legislation does not attempt to deal with all of the problems that prostitution creates or with the problems of prostitution generally, which of course is the sale of sexual favours or sexual services for pay. It only purports to deal with one aspect of the problems that prostitution can create, which is the nuisance to others created by street soliciting not only by the prostitute but by the customers of the prostitute. [Emphasis added.]
(Debates of the House of Commons, vol. V, 1985, at p. 6374.)
The Attorney General of Canada, adverting to the Minister's statement, submitted that the purpose of s. 195.1 was to prevent prostitutes and their customers from congregating and concentrating their activities in any particular location. He pointed out that prostitutes go where they can expect to find customers and customers go where they can expect to find prostitutes and the more widely such an area becomes known for what it is the more it will attract prostitutes and customers and the more nuisance will be created. The problem, in other words, feeds upon itself.
The Attorney General of Canada described the legislation as "time and place regulation" and emphasized that many trades and businesses are subject to government regulation in the public interest. He argued that the net effect of the legislation is merely to remove the transaction of the business of prostitution from public places. It is no different, he submitted, from regulating the conditions under which other businesses must operate. The Attorney General further submitted that no business enterprise should be free to pre‑empt a public place for its own commercial gain without regard to the nuisance it may create for the surrounding community. The Attorney General submitted (rather surprisingly, I think, in light of the impact of s. 193 of the Criminal Code on attempts to engage in prostitution from private premises) that one of the purposes of s. 195.1 is to diffuse the activities associated with prostitution and ensure that prostitutes, like retailers and consumers, conduct their activities on private premises and in a way which will avoid the creation of a nuisance to others.
I believe, with respect, that the Attorney General has overlooked a number of significant aspects of the impugned legislation which go directly to the question of its proportionality. The first is that it criminalizes communication or attempted communication for the prohibited purpose in any public place or place open to public view. "Public place" is then expanded in subs. (2) to include any place to which the public have access as of right or by invitation express or implied. In other words, the prohibition is not confined to places where there will necessarily be lots of people to be offended or inconvenienced by it. The prohibited communication may be taking place in a secluded area of a park where there is no‑one to see or hear it. It will still be a criminal offence under the section. Such a broad prohibition as to the locale of the communication would seem to go far beyond a genuine concern over the nuisance caused by street solicitation in Canada's major centres of population. It enables the police to arrest citizens who are disturbing no‑one solely because they are engaged in communicative acts concerning something not prohibited by the Code. It is not reasonable, in my view, to prohibit all expressive activity conveying a certain meaning that takes place in public simply because in some circumstances and in some areas that activity may give rise to a public or social nuisance.
I note also the broad scope of the phrase "in any manner communicates or attempts to communicate". It would seem to encompass every conceivable method of human expression. Indeed, it may not be necessary for the prostitute to say anything at all in order to be found to be "communicating" or "attempting to communicate" for the purpose of prostitution. The proverbial nod or wink may be enough. Perhaps more serious, a hapless citizen may be picked up for soliciting when he or she has nothing more pressing in mind than hailing a taxi! While it is true that he or she may subsequently be let go as lacking the necessary intent for the offence, the experience of being arrested is not something the ordinary citizen would welcome. Some definitional limits would appear to be desirable in any activity labelled as criminal.
Directly relevant to the issue of proportionality, it seems to me, is the fact already referred to that under para. (c) 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. Yet communicating or attempting to communicate with someone in a public place with respect to the sale of sexual services does not automatically create a nuisance any more than communicating or attempting to communicate with someone on the sidewalk to promote a candidate for municipal election. Moreover, as already mentioned, prostitution is itself a perfectly legal activity and the avowed objective of the legislature was not to make it illegal but only, as the Minister of Justice emphasized at the time, to deal with the nuisance created by street solicitation. It seems to me that 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. The impugned provision is not sufficiently tailored to that objective and constitutes a more serious impairment of the individual's freedom than the avowed legislative objective would warrant. Section 195.1(1)(c) therefore fails to meet the proportionality test in Oakes.
2. Sections 193 and 195.1(1)(c) of the Code and s. 7 of the Charter
(i) Section 7 of the Charter
I turn now to consider whether ss. 193 and 195.1(1)(c), either individually or in combination, violate s. 7 of the Charter.
My colleague Lamer J. approaches the s. 7 issue in this appeal as raising a question of "economic" liberty. With the greatest respect, I believe it is neither appropriate nor necessary in order to trigger the application of s. 7 to characterize the impugned legislation in this way. As Lamer J. points out in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 515:
Obviously, imprisonment (including probation orders) deprives persons of their liberty. An offence has that potential as of the moment it is open to the judge to impose imprisonment.
My s. 7 analysis proceeds therefore from a recognition of the uniquely punitive aspect of the legislative scheme governing prostitution under ss. 193 and 195.1 of the Criminal Code, i.e. that it can result in the deprivation of "physical" liberty. Like Lamer J. I take as my point of departure the ineluctable fact that the sale of sex for money is not a criminal act under Canadian law. It is not enough, however, simply to state that. We have to consider its implications.
In R. v. Morgentaler, [1988] 1 S.C.R. 30, the Chief Justice (Lamer J. concurring) made the following remarks at p. 70 about regulation by means of the criminal law as distinct from regulation by other means:
The criminal law is a very special form of governmental regulation, for it seeks to express our society's collective disapprobation of certain acts and omissions. When a defence is provided, especially a specifically‑tailored defence to a particular charge, it is because the legislator has determined that the disapprobation of society is not warranted when the conditions of the defence are met.
In my opinion, it is equally true that where the legislature has not criminalized a certain activity it is because the legislator has determined that this uniquely coercive and punitive method of expressing society's collective disapprobation of that activity is not warranted in the circumstances.
While it is an undeniable fact that many people find the idea of exchanging sex for money offensive and immoral, it is also a fact that many types of conduct which are subject to widespread disapproval and allegations of immorality have not been criminalized. Indeed, one can think of a number of reasons why selling sex has not been made a criminal offence. First, as Lamer J. notes in his s. 1 analysis of the legislative objective underlying s. 195.1(1)(c), more often than not the real "victim" of prostitution is the prostitute himself or herself. Sending prostitutes to prison for their conduct may therefore have been viewed by legislators as an unsuitable response to the phenomenon. Or the legislators may have realized that they could not send the female prostitute to prison while letting the male customer go and been reluctant for that reason to make prostitution a criminal offence. Another explanation may be a reluctance on the part of legislators to criminalize a transaction which normally occurs in private between consenting adults. Yet another possibility is that the legislature simply recognized that prostitution is the oldest trade in the world and is clearly meeting a social need. Whatever the reasons may be, the persistent resistance to outright criminalization of the act of prostitution cannot be treated as inconsequential.
I mention these possible reasons for the continuing legality of prostitution not for the purpose of endorsing any particular theory but rather to emphasize that the legality of prostitution must be recognized in any s. 7 analysis and must be respected regardless of one's personal views on the subject. As long as the act of selling sex is lawful it seems to me that this Court cannot impute to it the collective disapprobation reserved for criminal offences. We cannot treat as a crime that which the legislature has deliberately refrained from making a crime.
Nevertheless, the legislature has chosen to place serious constraints on the circumstances in which prostitution may take place and has decided that where someone attempts to engage in prostitution in those prohibited circumstances, the Criminal Code's penalties are appropriate. In other words, Parliament has chosen to regulate certain incidents of prostitution by means of the criminal law's power to deprive people of their "physical" liberty. In my view, it is this decision which triggers the application of s. 7 of the Charter.
In the case at bar conviction under ss. 193 or 195.1, may result in a deprivation of the liberty of the person. The convicted prostitute faces a possible prison sentence as well as the stigma of being labelled a criminal. The legislation permitting this result must therefore accord with the principles of fundamental justice if it is to survive the constitutional challenge.
(ii) The Principles of Fundamental Justice
In Re B.C. Motor Vehicle Act, supra, Lamer J. stated at p. 499:
The task of the Court is not to choose between substantive or procedural content per se but to secure for persons "the full benefit of the Charter's protection" (Dickson J. (as he then was) in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344), under s. 7, while avoiding adjudication of the merits of public policy. This can only be accomplished by a purposive analysis and the articulation (to use the words in Curr v. The Queen, [1972] S.C.R. 889, at p. 899) of "objective and manageable standards" for the operation of the section within such a framework.
He went on to caution against an unduly narrow interpretation of the term "principles of fundamental justice". He observed that "the narrower the meaning given to `principles of fundamental justice' the greater will be the possibility that individuals may be deprived of these most basic rights". This latter result was to be avoided given that the rights to life, liberty and security of the person were fundamental and that their deprivation would have the "most severe consequences upon an individual": see Re B.C. Motor Vehicle Act, supra, at p. 501. Lamer J. concluded at p. 513:
Whether any given principle may be said to be a principle of fundamental justice within the meaning of s. 7 will rest upon an analysis of the nature, sources, rationale and essential role of that principle within the judicial process and in our legal system, as it evolves.
Consequently, those words cannot be given any exhaustive content or simple enumerative definition, but will take on concrete meaning as the courts address alleged violations of s. 7. [Emphasis added.]
I agree that a purposive approach to the principles of fundamental justice is appropriate. I also agree that it follows from that proposition that one should not adopt a restrictive approach to the term and that one should avoid comprehensive definitions of the term which might place unnecessary and undesirable constraints upon the Court in the future. Moreover, I see no need to attempt in this appeal to define the term "principles of fundamental justice". I agree with Lamer J. that the content of these words "will take on concrete meaning as the courts address alleged violations of s. 7". Their content should be determined contextually on a case by case basis. I prefer therefore to limit my inquiry to the question whether the case before us gives rise to an infringement of liberty which violates a principle of fundamental justice.
Ms. Bennett submits that ss. 193 and 195.1(1)(c), both singly and together, violate s. 7 because they are too vague. While legislative provisions that are so vague as to be unintelligible to the citizen may well fail to accord with the principle of fundamental justice that requires persons to be given clear notice of that which is prohibited, in my view neither s. 193 nor s. 195.1(1)(c), read on their own or together, are so vague as to violate the requirement that the criminal law be clear. It is true that this Court has been called upon to interpret some of the terms used in these sections: see, for example, this Court's discussion of the term "common bawdy‑house" in R. v. Cohen, [1939] S.C.R. 212, and in Patterson v. The Queen, [1968] S.C.R. 157. This does not mean, however, that the legislation is so vague as to fail to accord with fundamental justice. The courts are regularly called upon to resolve ambiguities in legislation but this does not necessarily make such legislation vulnerable to constitutional attack.
In my view, the language of s. 195.1(1)(c) prohibits communication for the purposes of engaging in prostitution or of obtaining the sexual services of a prostitute. While I have previously noted that the wording of the provision may lead police officers to detain people on the mistaken assumption that they were communicating for the prohibited purposes, this does not mean that the section does not send a clear message to the citizen that communicating for those purposes is prohibited. Similarly, the fact that s. 193 does not itemize every situation that falls within the ambit of the prohibition against keeping a common bawdy‑house does not mean that citizens reading the provision will not know that they risk criminal sanctions if they are operating or found on premises used for the purpose of exchanging sex for money. Finally, while the combination of s. 193 and s. 195.1(1)(c) may seriously constrain the prostitute in the way in which he or she is able to carry on business, and may even make it difficult for the prostitute to know what avenues are left open to him or her, this does not necessarily mean that the provisions themselves, either individually or together, are not clear.
It is my view, however, that an infringement of a person's right to liberty cannot be said to accord with the principles of fundamental justice where the conduct alleged to constitute the infringement violates another Charter guarantee. My colleague Lamer J. observed in Re B.C. Motor Vehicle Act, supra, at p. 503:
In other words, the principles of fundamental justice are to be found in the basic tenets of our legal system. They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system.
While the Charter reflects a number of principles which have traditionally been part of our legal system, it also gives specific constitutional protection to other principles which are now an integral part of our legal system. These are just as much, if not more so, "basic tenets of our legal system" and required to be protected by the judiciary. This Court emphasized in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 155, that "[t]he judiciary is the guardian of the constitution" and in Oakes, supra, at p. 135, Dickson C.J. expressed agreement with the proposition stated in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at p. 218, that:
. . . it is important to remember that the courts are conducting this inquiry [under s. 1] in light of a commitment to uphold the rights and freedoms set out in the other sections of the Charter.
The rights guaranteed in the Charter "do not", to quote Lamer J., "lie in the realm of general public policy". They are the laws of the land. Indeed, this Court pointed out in its very first Charter case, Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, at p. 366, that the Charter "is part of the fabric of Canadian law. Indeed, it "is the supreme law of Canada"".
In my view, it follows from these propositions that a law that 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) cannot be said to accord with the principles of fundamental justice. It must therefore be justified as a reasonable limit under s. 1 of the Charter.
I have already concluded that s. 195.1(1)(c) violates s. 2(b) of the Charter because it violates the Charter's guarantee of the right to freedom of expression and that it is not saved by s. 1. But s. 195.1(1)(c) also infringes a person's right to liberty by providing that those who communicate for the prohibited purposes may be sent to prison. In my view, a person cannot be sent to prison for exercising his or her constitutionally protected right to freedom of expression. This is clearly not in accordance with the principles of fundamental justice.
I noted in discussing s. 2(b) that s. 193, either on its own or in combination with s. 195.1(1)(c), does not violate a person's right to freedom of expression. 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, in my view, violate a principle of fundamental justice. Nor are s. 193 and s. 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. I conclude therefore that no principle of fundamental justice is violated by s. 193 or the combination of ss. 193 and 195.1(1)(c).
(iii) Section 1 of the Charter
Where a legislative provision violates more than one section of the Charter, as I have found to be the case with s. 195.1(1)(c) of the Criminal Code, it may not be possible to provide a single answer to the question whether the legislation constitutes a reasonable limit justifiable under s. 1 of the Charter. This is because the nature of the justification will depend at least in part on the right which is being limited. Thus, in some instances legislation may limit one Charter right in a way that can be justified under s. 1 and at the same time limit another Charter right in a way that cannot be justified under s. 1. I make this point simply to emphasize that one cannot assume that the basis of justification under s. 1 will be the same in both instances. It is not enough, in other words, for the government to justify a breach of one Charter guarantee under s. 1. It must justify the breach of the other Charter guarantee as well.
In this case the respondent and each of the Attorneys General made the same submissions in support of s. 195.1(1)(c) as a reasonable limit on s. 7 as they made in its support as a reasonable limit on s. 2(b).
I agree that their submissions as to the existence of a pressing and substantial concern and as to the rational connection between that concern and the impugned legislation are equally valid in relation to the infringement of the s. 7 right. The test of proportionality may, however, be different.
The question in relation to the s. 2(b) infringement was whether it was reasonable and justifiable to limit freedom of expression in the broad terms of s. 195.1(1)(c) in order to deal with the nuisance caused by street solicitation. I concluded that it was not. The section was too broad. The question in relation to the s. 7 infringement, it seems to me, is whether it is reasonable and justifiable to deprive citizens of their liberty through imprisonment in order to deal with the nuisance caused by street solicitation. Again I conclude that it is not. It seems to me that where communication is a lawful (and, indeed, a constitutionally protected) activity and prostitution is also a lawful activity, the legislative response of imprisonment is far too drastic. I indicated elsewhere my view that an infringement of liberty which violates the principles of fundamental justice must be very difficult, if not impossible, to justify as a reasonable limit under s. 1. My colleague Lamer J. suggests in Re B.C. Motor Vehicle Act, supra, at p. 518, that it may be possible "in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like".
Be that as it may, it seems to me that to imprison people for exercising their constitutionally protected freedom of expression, even if they are exercising it for purposes of prostitution (which is not itself prohibited), is not a proportionate way of dealing with the public or social nuisance at which the legislation is aimed. I conclude, therefore, that s. 195.1(1)(c) violates s. 7 of the Charter and is not saved by s. 1.
3. Disposition of the Appeal
I would allow the Appeal in part and answer the constitutional questions set out in the Order of the Chief Justice as follows:
Question1.Is s. 193 of the Criminal Code of Canada inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms?
Answer: No.
Question 2.Is s. 195.1(1)(c) of the Criminal Code of Canada inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms?
Answer: Yes.
Question3.Is the combination of the legislative provisions contained in ss. 193 and 195.1(1)(c) of the Criminal Code of Canada inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms?
Answer: No.
Question4.Is s. 193 of the Criminal Code of Canada inconsistent with s. 2(b) of the Canadian Charter of Rights and Freedoms?
Answer: No.
Question5.Is s. 195.1(1)(c) of the Criminal Code of Canada inconsistent with s. 2(b) of the Canadian Charter of Rights and Freedoms?
Answer: Yes.
Question6.Is the combination of the legislative provisions contained in s. 193 and s. 195.1(1)(c) of the Criminal Code of Canada inconsistent with s. 2(b) of the Canadian Charter of Rights and Freedoms?
Answer: No.
Question7.If s. 193 or s. 195.1(1)(c) of the Criminal Code of Canada or a combination of both or any part thereof are inconsistent with either s. 7 or s. 2(b) of the Canadian Charter of Rights and Freedoms, to what extent, if any, can such limits on the rights and freedoms protected by s. 7 or s. 2(b) of the Charter be justified under s. 1 of the Charter and thereby be rendered not inconsistent with the Constitution Act, 1982?
Answer:Section 195.1(1)(c) of the Criminal Code of Canada, to the extent it is inconsistent with both s. 2(b) and s. 7 of the Charter, cannot be justified under s. 1 of the Canadian Charter and is therefore inconsistent with the Constitution Act, 1982.
Appeal dismissed, WILSON and L'HEUREUX‑DUBÉ JJ. dissenting.
Solicitors for the appellant: Teffaine, Teillet & Bennett, Winnipeg; Smordin, Gindin, Soronow, Ludwig, Winnipeg.
Solicitor for the respondent: The Attorney General of Manitoba, Winnipeg.
Solicitor for the intervener the Attorney General of Canada: F. Iacobucci, Ottawa.
Solicitor for the intervener the Attorney General for Ontario: The Attorney General for Ontario, Toronto.
Solicitor for the intervener the Attorney General for Saskatchewan: The Attorney General for Saskatchewan, Regina.
Solicitor for the intervener the Attorney General for Alberta: The Attorney General for Alberta, Edmonton.
Solicitor for the intervener the Attorney General of British Columbia: The Ministry of the Attorney General, Victoria.
Solicitor for the intervener the Canadian Organization for the Rights of Prostitutes: Joseph Eliot Magnet, Ottawa.