Rights, Property… and Blogging

Because one blog is obviously not enough, I will now also be blogging for the CBA National Magazine. Initially at least, I will only be writing for them once a month. In any event, my main blogging focus will remain here, at Double Aspect. However, I am excited about this new venture and the possibility of reaching out to a somewhat different (and broader) audience that comes with it, not to mention what I hope will be additional publicity for this blog, so I’m grateful to the Magazine’s editor, Yves Faguy, for the kind invitation to contribute.

My first post there argues that Canadian constitutional law’s failure to protect property and economic rights, although motivated by a concern that these rights would be invoked in the interest of the well-off and to the detriment of the poor, ends up hurting the vulnerable and the marginalized members of society. I have already made this case here, when discussing the “victim surcharge” imposed on offenders in addition to their normal sentences, which is in effect a transfer of wealth from the poor to the better-off. I now take up this theme in discussing Bill C-36, the federal government’s response to the Supreme Court’s judgment in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 SCR 1101. The  Supreme Court’s persistent refusal to acknowledge that the liberty protected by section 7 of the Charter includes economic self-determination means that the discussion about the bill’s flaws and possible (although by no means certain) constitutionality essentially ignores the question of the sex workers’ right to earn their living as best they can. That is unfortunate:

A recognition of the sex workers’ right to earn a living in their own way would obviate the need for an uncertain balancing of the sex workers’ right to be safe and the government’s moral indignation at the idea of prostitution, to which the Bedford approach leaves the door open. It would, instead, put the spotlight on the real question that the government’s chosen path raises, which is whether this moral indignation is a good enough reason to prevent vulnerable individuals from making a living in what for some, and perhaps many, of them is the only way accessible to them.

It is not the rich, who seem to be doing just fine, thank you, who most need their property and economic rights protected. It is the poor.

One point I do not make in the National Magazine blog post but want to add here is that it would be a mistake to suppose that economic rights are generally secondary to civil and political rights as a matter of liberal political theory. The better view, I believe, is that defended by James Madison in an eloquent essay called “Property.” Madison argues that what we now call rights are a form of property, so that

a man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of the objects on which to employ them. In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights. (Paragraph breaks removed)

The role of government, Madison says, is

 to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.

A government is not just if suppresses speech or violates the rights of conscience. But nor is it just if

arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.

“[T]he rights of property and the property in rights” go together. They are both indispensable for human freedom and self-worth. The point that respect for the latter is connected to respect for the former might seem abstract or theoretical. But we can see that violations of one go hand in hand with violations of the other.

Lies, Damned Lies, and Judicial Review

As the federal government considers its response to the Supreme Court’s ruling in Canada (Attorney General) v. Bedford, 2013 SCC 72, which invalidated the prostitution-related provisions of the Criminal Code, one can be forgiven for wondering whether its response will be guided by facts and research, or by ideology. Unfortunately, as a depressing but important guest post by Maggie McNeill on the Washington Post’s “The Watch” blog (run by Radley Balko, a civil libertarian) shows, when it comes to sex work, facts and ideology are often inextricably linked.

Ms. McNeill writes that

many of those who represent themselves as sex work researchers don’t even try to get good data. They simply present their opinions as fact, occasionally bolstered by pseudo-studies designed to produce pre-determined results. Well-known and easily-contacted sex workers are rarely consulted. There’s no peer review. And when sex workers are consulted at all, they’re recruited from jails and substance abuse programs, resulting in a sample skewed heavily toward the desperate, the disadvantaged and the marginalized.

Much of what passes for research on sex work, says Ms. McNeill, is produced not by impartial researchers, but by interest groups campaigning for the prohibition of any and all forms of prostitution, who often try to present them as invariably involving sex trafficking and exploitation of children, knowing that this is the most effective way to produce the response they desire from the public, the media, and legislators. Ms. McNeill also points out that the very fact that prostitution is criminalized in most of the world makes reliable statistics hard to come by (although even for countries where much sex work is legal, biased “researchers” choose to focus on its illegal side). Yet the media, which shape the perceptions of the issue among the general public and legislators, swallows dubious or outright distorted figures whole, without questioning the methodologies by which they are arrived at. (The Economist’s recent article based on a “study” which, as Ms. McNeill points out, involved fewer than 40 sex workers, drawn from one small segment of the profession, is a sad example of this trend, from a supposedly intellectual publication.)

The reason I am writing about this, apart from the obvious importance for all of us as citizens of being wise to what is going on, is that the litigation which will almost inevitably follow Parliament’s response to Bedford (especially if, as rumour has it, this response will include a criminalization of the purchase of sex) will heavily rely on studies of and statistics about sex work. What is more, under the Supreme Court’s holding, in Bedford, that the findings of “legislative fact” by a trial judge are entitled to full deference appellate courts, the way these studies and statistics will be handled at first instance is likely to determine the outcome of the new constitutional challenge, just as they determined that of Bedford itself.

As I wrote in my comment on what Bedford meant for the future of Charter litigation, this is a worrying perspective:

Trial judges ― most of whom are former litigators, without any sort of systematic training that would make them suitable for assessing social science evidence from which “legislative facts” are drawn ― are not chosen in the expectation that they will exercise determinative influence on the outcome of key constitutional cases. Many trial judges are capable of undertaking this responsibility. But many, with the best will in the world, are not. Of course, this may be true of appellate judges too, although presumably more of them are chosen for their expected capacity to deal with important, challenging cases. More importantly regardless of initial qualifications, appellate judges are more likely to develop an expertise relevant for exercising such functions, because there are relatively few of them, so that each one is much more likely to come across complex constitutional cases than a trial judge, of whom there are relatively many, so that each one may face significant constitutional cases only once or twice in his or her career. Furthermore, appellate judges do not sit alone. This means that the odds that an individual judge’s error will be caught and corrected before the court’s decision is issued are higher. Shifting power in constitutional cases from appellate to trial courts may thus lead to more errors in the dispositions of such cases.

The federal government will go into any new litigation armed with a record made up of studies and statistics about sex work ― in all likelihood, studies and statistics of the sort Ms. McNeill describes. A lot will depend on whether the lawyers who will challenge it will be up to the task of exposing the flaws of such a record. But, ultimately, the outcome of the case is likely to depend on the ability of just one trial judge to understand and critically assess this evidence. With all due respect to trial judges, I find this disquieting.

Reticence and Power

The Supreme Court of Canada is in the habit of “suspending” its declarations of unconstitutionality of legislation, especially controversial or important legislation, ostensibly in order to give the legislature which enacted the statute at issue time to re-write it so as to remove the constitutional defect while preserving as much of the substance of the law as possible. Sounds nice, doesn’t it? But in a very interesting post on the UK Constitutional Law Association’s blog, Robert Leckey argues that this trend is worrying. Suspended declarations of invalidity, prof. Leckey claims, are problematic from a Rule of Law perspective, and amount to a tacit abandonment of some of the Supreme Court’s power of judicial review. I am not sure that either of these claims is quite right, but they deserve careful thought.

Professor Leckey’s main exhibit is the Supreme Court’s recent decision in Canada (Attorney General) v. Bedford, 2013 SCC 72, which invalidated the Criminal Code‘s provisions “regulating” prostitution on the basis that they were contrary to the guarantee of “security of the person” in the Canadian Charter of Rights and Freedoms, but suspended the declaration of unconstitutionality for a year, to give Parliament the chance to enact a new regulatory framework for addressing the problems created by prostitution. Prof. Leckey points out, as I did in my review of the Court’s decision, that the Court offers little, if anything, by of justification for the decision to suspend the declaration unconstitutionality. Yet, he says, the suspended remedy is quite problematic, both in this specific case and from a theoretical perspective.

Practically speaking, for one thing, it perpetuates for one more year a legal regime which the Court has found to compromise the security of the women involved in sex work. For another, the suspended declaration of unconstitutionality helps foster a state of uncertainty about the applicable law, which “local authorities are enforcing the provisions to varying extents,” thus “arguably undermin[ing] the rule of law.”

At a more theoretical level, prof. Leckey suggests that ” the suspended remedy in Bedford represents the culmination of judges’ reshaping of their role under the Charter.” In the Charter’s early years, they would simply strike down the laws they found to contravene it. The suspended declaration of unconstitutionality was originally developed as a remedy in order to avoid the dangers of a legal vacuum, and was meant to be exceptional. Now, however, it is justified as a means, not of preventing lawlessness, but “of making space for a legislative response.” In prof. Leckey’s view, the Supreme Court has moved “from using orders under the Charter to cease the effect of laws violating rights to using them to identify legislative priorities,” resulting in an “apparent underuse of [the Canadian judiciary’s] constitutional powers,” contrary to the letter of the constitution.

It seems to me that prof. Leckey makes very important points, but perhaps neglects the counter-points that could be made in defence of the Supreme Court’s practice. For instance, when thinking about the Rule of Law implications of suspending a declaration of unconstitutionality, it is worth noting that, when a legislative response to the Court’s judgment is expected, the suspended remedy helps to maintain the stability of the law, by making for a single change of regulatory framework (when the new law is enacted) rather than two in quick succession (when the old law is struck down and again when a new one is enacted). I’m not sure that this outweighs prof. Leckey’s point about uncertainty, but it is at least a possibility to consider.

As for the theoretical point, I think it is necessary to think about the differences between the laws of which the courts are asked to review the constitutionality. As I have suggested elsewhere (here, for instance), we might want to treat laws that simply expand the coercive power of the state, or entrench incumbents in political office, differently from those which are meant to balance competing social interests. Whether or not these different sorts of laws ought to be reviewed with varying degrees of deference, there is, I think, a much better case to be made for suspending a declaration of unconstitutionality for a law of the “balancing” sort than from a coercive or power-entrenching one. And it may well be that laws belonging to the “balancing” category form a larger part of the Supreme Court’s constitutional docket now than they did in the Charter’s early days, when it was busy weeding out legislation like the Lord’s Day Act, which would account for the proliferation of suspended declarations of unconstitutionality.

Now, even if this general point is right, I think that prof. Leckey is quite right about Bedford. The prostitution provisions of the Criminal Code do not, in my view, balance competing social interests. They are naked repression. Unfortunately, the Supreme Court’s treatment of the remedy issue, particularly its reference to the “great concern” which “many Canadians” supposedly feel about “unregulated” prostitution (par. 167), suggests that it may well regard it as a balancing, rather than a repressive, regulatory scheme.

Still, the misuse of the suspended declaration of unconstitutionality in one case does not prove that this remedy is fundamentally flawed. We need to think more about this issue ― and so does the Supreme Court. Its unwillingness to explain itself does not become an institution that pretends to be circumspect in its use of power. Power deployed without explanation is the opposite of reticence.

Friends Like These

In my comment on the Supreme Court’s decision striking down the Criminal Code’s provisions on prostitution,  Canada (Attorney General) v. Bedford, 2013 SCC 72, I expressed concern about the Court’s reliance on “legislative facts” ― that is, the social context in which the impugned legislation operates ― to resolve the case, and especially its holding that a trial judge’s findings of legislative fact are entitled to as much deference as findings of “adjudicative facts” ― that is the more mundane facts about the events that give rise to a dispute. An American lawyer, Yaakov Roth, expresses somewhat similar worries in the National Post. Yet he misunderstands or misrepresents the law, and his argument is so tendentious that it does not make the case at all.

Mr. Roth is angry at the Supreme Court’s decisions in Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134 (usually known as the Insite decision) as well as in Bedford. As he puts it, “using illegal drugs and publicly soliciting prostitution are, to put it mildly, not activities that come to mind when one thinks of fundamental constitutional rights.” And the Court’s fact-finding process is to blame for its bizarre holdings. Requiring appellate courts to defer to the conclusions reached by a trial judge after hearing from “purported experts” “means that a single, anonymous trial judge is authorized to impose his social worldview on the entire country.” Actually, the social facts involved in Charter disputes aren’t facts at all. The costs and benefits of safe injection facilities, the dangers of prostitution within the existing legal framework, or the voluntariness of a choice to break drug or prostitution laws “are social theories, policy conclusions, value judgments and ideological preferences.” Yet policy, values, and ideology are the remit of Parliament, not courts:

turning every social policy issue into a disputed “fact” to be resolved by a single judge after hearing testimony from academics is nothing but a transparent effort to substitute judges’ policy views for those of Parliament.

Unfortunately, whether deliberately or not, Mr. Roth misrepresents both Insite and Bedford, which were actually more modest decision than he makes them out to be. In Insite, the Supreme Court did not hold that there was a constitutional right to use illegal drugs, simply because the question did not arise. The general criminalization of drugs was not at issue. The statute made it possible for the government to exempt a facility such as Insite from its application, however, and it was the decision to withdraw the exemption that was challenged. Similarly, in Bedford, the Supreme Court was adjudicating against the background of a decision by Parliament not to criminalize prostitution itself. The Court held that Parliament made a legal activity more dangerous than it had to be, not that there was a fundamental right to engage in it in the first place. Besides, the Supreme Court’s decision did not rest on the “fact” that people had no choice but to engage in prostitution; on the contrary, it held that voluntariness was irrelevant (again, because prostitution was not illegal to begin with).

As or more importantly, Mr. Roth’s argument is undermined by his sweeping dismissal of all social science evidence and expertise, which is as broad as it is uncalled for. Social science (as well as physical and life sciences!) is susceptible to doubt, and its conclusions are subject to revision. It is, I think, a fair argument (whether we accept it or not) that there is a danger in making judicial decisions on such a shaky foundation. It is also a fair argument (and I have made it myself) that courts are not well equipped to deal with social science evidence. But it is quite wrong to claim that social science is nothing but value judgment and ideology. It is, on the contrary, pure ideology to reject out of hand the best available knowledge about how the world and human society works. To take an example quite unrelated to the constitutional cases that so annoy Mr. Roth, anti-trust law has made great progress in the last half-century by paying attention to economics ― a social science. It is one thing to say that courts should be aware of their limitations when assessing social science evidence, and should structure their procedures (such as standards of appellate review) with these limitations in mind. It is quite another to say that they should simply blind themselves to such evidence. 

Mr. Roth is right to point out that the way in which courts treat social science evidence affects the balance of power between the judiciary and the other branches of government. It also affects the balance of power among the courts. The Supreme Court’s chosen approach gives more power to trial at the expense of appellate courts, which I have argued is a worrying change. However, eschewing fact-intensive analysis and deciding more cases on the basis of legal principles rather than “legislative facts” ― for example, deciding Bedford on the basis of a general right to liberty ― would probably increase rather reduce judicial power. It would also produce, from the likes of Mr. Roth, howls about the imposition of the judges’ worldview on citizens. Indeed, I suspect that it is at least in part to avoid this sort of reactions that the Supreme Court has taken the fact-intensive approach to controversial cases such as Bedford.

I still think that this is a risky choice (in the long run anyway, because I have little quarrel with Bedford decision itself, or with the Insite one for that matter). However, in trying to work out the least-bad approach to judicial review, we have to appreciate the difficulty of the task, and the need for nuance. Mr. Roth’s argument is devoid of such an appreciation. With friends like these… we won’t go far.

Off Course

In my post on  Canada (Attorney General) v. Bedford, 2013 SCC 72, the Supreme Court’s recent decision striking down the prostitution-related provisions of the Criminal Code, I said I would have some thoughts on what this decision means for the future of Charter-based judicial review in Canada. As Churchill said, it is a dangerous thing to make predictions, especially about the future. And I have little reason to believe that I am particularly qualified for prognostication. Still, I can at least ask questions, and point out some dangers ahead on the path on which the Supreme Court seems to be headed.

I speak of dangers because elements of the Supreme Court’s approach to deciding Bedford bothered me. In a nutshell, I am very uncomfortable with the Supreme Court’s insistence on deference to the trial judge’s fact-finding, and the key role it played in the decision. Excessive reliance on and deference to first-instance fact-finding risks shifting power to people neither expected nor prepared to wield it, undermining what little accountability there is in the judicial review process, and making Charter litigation the tool of interest groups rather than of individual citizens harmed by the government.

The Supreme Court’s conclusions in Bedford that the prostitution provisions of the Criminal Code endanger sex workers, and even that they are unrelated or disproportionate to their purposes, are largely endorsements of the findings of the judge of first instance on these points. Perhaps this is inevitable given the framing of the case as being one about security of the person (as opposed, say, to liberty). But, before reaching these conclusions, the Supreme Court also commented on the approach appellate courts must generally take to findings of fact in constitutional cases. It rejected the distinction, made by the Ontario Court of Appeal, between the levels of deference due to findings of “adjudicative facts” ― that is, facts about the parties and witnesses, their actions, and their credibility ― and findings of “legislative facts” ― that is, the broader social context of the dispute, and in particular the background and effects of the legislation at issue. The Supreme Court holds that the two sorts of facts are to be treated the same: a trial judge’s findings are conclusive barring a “palpable and overriding error” (par. 48). This is both because judicial resources must be preserved, making it undesirable for appellate judges to delve into the (often voluminous) record assembled by the parties, and because the two sorts of facts are often intertwined and difficult to distinguish.

Thus, fact-finding ― including “legislative” fact-finding ― at trial is likely to define cases all the way up to the Supreme Court. Furthermore, the Bedford decision also encourages litigants to frame their cases as intensely factual. A party needs only to convince a trial judge to adopt its vision of the facts, and its success in the case may well be locked in, avoiding the risks and difficulties of convincing 12 (or 14) appellate judges.

This makes trial judges very powerful in Charter cases. Yet there is reason to question whether this empowerment is a good idea. Trial judges ― most of whom are former litigators, without any sort of systematic training that would make them suitable for assessing social science evidence from which “legislative facts” are drawn ― are not chosen in the expectation that they will exercise determinative influence on the outcome of key constitutional cases. Many trial judges are capable of undertaking this responsibility. But many, with the best will in the world, are not. Of course, this may be true of appellate judges too, although presumably more of them are chosen for their expected capacity to deal with important, challenging cases. More importantly regardless of initial qualifications, appellate judges are more likely to develop an expertise relevant for exercising such functions, because there are relatively few of them, so that each one is much more likely to come across complex constitutional cases than a trial judge, of whom there are relatively many, so that each one may face significant constitutional cases only once or twice in his or her career. Furthermore, appellate judges do not sit alone. This means that the odds that an individual judge’s error will be caught and corrected before the court’s decision is issued are higher. Shifting power in constitutional cases from appellate to trial courts may thus lead to more errors in the dispositions of such cases.

It will also make constitutional adjudication less accountable. Trial decisions, even in important constitutional cases, attract less attention than appellate ones, especially those of the Supreme Court. Even when such decisions do attract attention from the media and academic commentators, the focus is not likely to be on the assessment of the evidence. Yet under the Supreme Court’s approach in Bedford, by the time a case comes up for appeal, and eventually reaches the highest ― and most visible ― court, it may well already be effectively decided. The Supreme Court can then avoid responsibility for controversial decisions, saying that “the trial judge made us do it.” (Indeed, I wonder whether this was not the real attraction of this approach to the Supreme Court in deciding Bedford.) Call it judicial leading from behind.

The final problem with this approach that is worth mentioning is that it risks making Charter litigation the province of sophisticated interest groups, such as those that intervened in Bedford, and out of reach of ordinary litigants and their equally ordinary lawyers, such (mostly) as the people behind some of the early ground-breaking Charter cases. Assembling a record for winning a Charter case on the facts ― on legislative facts ― is long and difficult. It is also, needless to say, expensive. As Sonia Lawrence pithily puts it in her post on Bedford (which I highly recommend)

these aren’t cases that walk into your office one day.  They are cases put together piece by painstaking piece.  It’s a long road to justice this way around, folks.

The government, as the best funded and most powerful interest group of them all, is more likely to have the resources to put together a solid record than those who challenge it. The road is certain to be long, but it may well lead to nowhere.

There is a sad irony in all of this. One wonders whether, indeed one suspects that, the Supreme Court prefers to rely heavily on fact-finding ― preferably on fact-finding by others ― in order to avoid responsibility for controversial decisions, or at least, to put the point less harshly, in order to make such decisions appear more inevitable and hence less questionable and more legitimate. This strategy may succeed in the short term. The reasoning from facts in Bedford seems very solid; although it has not escaped criticism (not necessarily enlightened, or even having anything to do with the actual decision), it has not attracted the firestorm which would have been inevitable if it had been a broader ruling based on the right to liberty, the freedom to do what one pleases with one’s body. Yet if my worries about errors, lack of accountability, and access to justice are justified, in the long run, the legitimacy of Charter-based judicial review may well be undermined. The problem with leading from behind is that one has trouble seeing ahead. The Supreme Court is in serious danger of veering off course.

Down with Hypocrisy

As everybody already knows, on Friday the Supreme Court struck down the provisions of the Criminal Code regulating prostitution in Canada (Attorney General) v. Bedford, 2013 SCC 72. In this post, I will summarize its (rather brief) reasons for doing so, and comment on the substance of the decision. In a separate one, I will have some thoughts about what this case ― not the substance of the decision, but the process by which it was reached ― means for the future of the Canadian Charter of Rights and Freedoms.

The Criminal Code did not criminalize prostitution itself ― the exchange of sex for money, and accordingly the Supreme Court did not hold that such a criminalization would be unconstitutional. Rather, while leaving prostitution legal, Parliament had chosen to outlaw “common bawdy houses”  (that is, places where prostitution happens), “living on the avails of prostitution” (deriving an income from a prostitute, whether as a pimp or in any other (commercial) capacity, say, as a driver or even a receptionist), and “solicitation” (communications for the purpose of concluding a sex-for-money transaction. A group of current and former sex workers challenged this statutory scheme, arguing that it subjected prostitutes to increased risks of harm at the hands of pimps and violent clients, contrary to their right to the security of the person, protected by s. 7 of the Charter. The Supreme Court agreed.

The essence of the Court’s reasoning can be distilled to just a couple of sentences:

The prohibitions at issue do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks (par. 60).

The “bawdy house” provision forces prostitution into the streets or into clients’ cars, homes, or hotel rooms ― places where the prostitutes are in much more danger than in places with which they are familiar (such as their own homes or brothels, or even safe houses) and where they can take much better precautions from violent and otherwise dangerous clients. The “living on the avails” provision prevents people engaged in the sex trade from hiring legitimate assistance and protection and leaves them at the mercy of pimps. The “solicitation” provision prevents sex workers from assessing prospective clients, because all the communications need to happen as quickly as possible. All three contribute to the risks the prostitutes run.

The federal and provincial governments argued that it was the sex workers who took on the risks of their dangerous trade; the law did not cause them. But the Supreme Court rejected this submission. It holds that the state action being challenged need not be the “foreseeable and necessary cause of the prejudice” (par. 77) ― a “sufficient causal connection” between the two is enough. This threshold is met here. For one thing,

while some prostitutes may fit the description of persons who freely choose (or at one time chose) to engage in the risky economic activity of prostitution, many prostitutes have no meaningful choice but to do so” (par. 86).

And for another, regardless of the voluntariness of a specific person’s decision to engage in prostitution, what matters most is

whether the impugned laws make this lawful activity more dangerous. An analogy could be drawn to a law preventing a cyclist from wearing a helmet (par. 87).

Of course, it pimps and violent clients who actively harm prostitutes. But “[t]he impugned laws deprive people engaged in a risky, but legal, activity of the means to protect themselves against those risks” (par. 89). The challengers are not asking the state actively to protect them ― only not to prevent them from taking their own precautions.

Having found that Parliament’s chosen approach to prostitution is a violation of the sex workers’ right to the security of the person, the Supreme Court must decide whether the violation is “in accordance with principles of fundamental justice.” It holds that it is not. The “bawdy house” provision, it finds, is grossly disproportionate to its real aim of reducing nuisance. “Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes” (par. 136), says the Court. The government’s claim that Parliament’s purpose was broader, that it sought to deter prostitution, is unconvincing, since some forms of prostitution are quite unaffected by the “bawdy house” prohibition. The “living on the avails” provision is, for its part, overbroad ― it criminalizes all manner of conduct that is unrelated to its purpose. Parliament aimed at exploitative relationships, but did not only criminalize those. The governments argued that the distinction between exploitative and non-exploitative relationships is hard to draw, but that, the Court says, is an issue for s. 1 of the Charter, not s. 7. As for the “solicitation” provision, like the “bawdy house” one, it is grossly disproportionate to the purpose of reducing nuisances. It does not seek to eliminate prostitution, but only to drive it out of sight. The harms it results in are too much of a price to pay for this.

The final step in the analysis is the question whether the violations of s. 7 of the Charter can be justified under s. 1, as “reasonable limits” acceptable “in a free and democratic society.” As usual in s. 7 cases, this is not a real issue. The Court makes a conclusory finding that the “living on the avails” provision is not as little impairing of rights as it might have been. As for the other prohibitions at issue, the government did not really even try to justify them.

The final issue is that of the remedy. The Court’s reasoning, again, is close to non-existent. After stating the considerations in favour of striking down the prostitution provisions with immediate effect, and those in favour of suspending the declaration of unconstitutionality for a year, so as to leave Parliament time to adopt a different regulatory scheme, it opts for the latter approach, “considering all the interests at stake” (par. 169).

Substantively, this is the right decision. Parliament prevented people engaged in an otherwise legal activity from taking their own actions to make it as safe as it can be. Indeed, I think that the Supreme Court conceded too much when it accepted a low, and arguably meaningless, causation standard to find that the impugned provisions caused harm to sex workers. The violence and exploitation which prostitutes suffer are not just “sufficiently connected” ― whatever that means ― to the law. They are its entirely foreseeable consequences.

Even exploitation by pimps, which is surely the best reason Parliament had to act, is in no small part, a consequence of the overbreadth of the “living on the avails” provision. Just as no law can make demand for prostitution disappear, no law can make demand for protection of and assistance to prostitutes vanish. By criminalizing the supply that emerges to meet this demand, law makes supply more scarce, and therefore more costly, both in purely financial terms, and in the overall exactions the suppliers impose on their customers. An illegal activity inevitably attracts more “tough” ― read, abusive ― people than a legal one would. Few agents, say, for professional athletes are abusive (though probably some are). Many pimps are (though perhaps some are not). Why? Because the former activity, is legal, while the latter, not very dissimilar to it, is not.

This brings me to a more general point about prostitution and Parliament’s approach to it, which is something to keep in mind as we debate the new regulations, if any, that Parliament should enact. We have, so far, been very hypocritical in this matter. Not criminalizing prostitution but hoping that if we make it awful enough it will go away is hypocritical. The Supreme Court is not about to recognize a prohibition on hypocrisy as a principle of fundamental justice, but it would be a nice thing if it did. As it is though, the government is finding it hard to justify hypocritical laws, which act by regulating behaviour unconnected to their true purpose. Bedford is a great example of this. (Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519) which struck down the prohibition on prisoner voting, a form of punishment masquerading an expression of commitment to the integrity of our democracy, is another that comes to mind.)

But there is a still broader hypocrisy too in our approach to prostitution. Why is it wrong to sell one’s body for sex, but not for the gratification of a crowd of spectators at a football or hockey stadium ― or simply for the meagre wages of a manual labourer? Why is it wrong, indeed, to “sell one’s body” but not to sell one’s mind, which is effectively what professionals do? Down with hypocrisy, I say. The Supreme Court cannot get rid of it for us. That’s our own job.