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.

Moving the Earth

Last week, the Supreme Court issued an important judgment on the law of public interest standing. Although it might seem like a technical issue, the importance of standing, or locus standi, was already clear to Archimedes 2200 years ago, when he asserted that if given a place to stand, he would move the earth. Ok, maybe he didn’t mean that sort of locus standi, and anyway he spoke Greek, not Latin. But in law no less than in physics, if you want to move the earth, you need a place to stand.

The Supreme Court’s decision in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 makes finding one easier. It relaxes, or clarifies, as the Court’s judgment insists, the test courts use to determine whether to grant “public interest” standing to a party who does not have standing―simply put, the right to initiate a lawsuit―to challenge the legality or constitutionality of government action under the traditional (“private interest”) definition of standing, which requires the would-be plaintiff to have a specific personal interest in the dispute.

The would-be plaintiffs in Downtown Eastside are an organization and a former sex-worker who want to challenge the constitutionality of the Criminal Code‘s provisions relating to prostitution, which they say infringe their rights to freedom of speech, freedom of association, security of the person, and equality before the law. Since they neither stand accused under the Criminal Code provisions they want to challenge nor are likely to find themselves in that position, they have no “private interest” in the challenge. But, they say, they should be given standing in the public interest. The Supreme Court of British Columbia refused to do so; the Court of Appeal reversed that decision, and the government appealed. The Supreme Court dismissed the appeal.

Courts can grant a would-be plaintiff public interest standing when his challenge raises serious and justiciable issues, the plaintiff has a genuine interest (in a non-technical sense―this is not a legal interest, in the sense of a personal stake) in the dispute, and, as the Supreme Court put it in Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575 at 598, “there is no other reasonable and effective manner in which the issue may be brought before the Court.” But, as Justice Cromwell explains in his opinion for the unanimous Court, “no” here doesn’t quite mean no.

Rather, than a categorical bright-line rule, the test is a flexible standard, requiring the court to assess “whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts” (par. 37). This still allows the courts to accomplish the purposes of the rules on standing: to keep away “mere busybodies” (more hypothetical than real, says the Court) and economize judicial resources; to ensure that courts will be expose to a full adversarial debate; and to keep them within the bounds of their constitutional role. At the same time, it helps enforce “the principle of legality,” which requires constitutional and statutory authorization for government action, by ensuring that no unconstitutional or illegal action can permanently escape a legal challenge.

Justice Cromwell provides (par. 51) a helpful, albeit non-exhaustive, list of factors to be taken into account in deciding “whether the proposed suit is a reasonable and effective way to” litigate an issue. These include a would-be plaintiff’s “capacity to bring forward a claim,” the possibility that the litigation would bring before the courts an issue affecting those too disadvantaged to litigate on their own behalf, and the existence of alternative avenues for the issues, and the perspective a would-be plaintiff brings on these issues, to be brought before the court―in practice, not in theory.

Applying these considerations to the would be-plaintiffs in Downtown Eastside, Justice Cromwell finds that they favour granting them public interest standing. In particular, he considers that, contrary to what the trial judge had found, it would be very difficult for the same set of issues to be raised in any other manner. To be sure, individual sex workers or their clients are often charged under the Criminal Code’s prostitution provisions. But even when they challenge the constitutionality of the provisions under which they are charged, they do not―and cannot as of right―challenge the whole scheme adopted by Parliament to deal with prostitution. Nor do they have the sort of resources the would-be plaintiffs here will bring to bear. (Anyway, many of these challenges are not heard because the cases are resolved otherwise.) He also notes that, given the legal and social stigma prostitution engenders, potential individual plaintiffs are unwilling to come forward to bring a comprehensive challenge of their own volition.

This could turn out to be a very important decision―or not. The degree to which the circumstances in which sex workers find themselves prevent them from challenging the laws that affect them might be unique. And we have no way of knowing, for now, just how flexibly courts will apply the “reasonable and effective” standard Justice Cromwell articulates.

I will, at least for now, refrain from further commentary. That is, first, so as not to over-extend an already lengthy post. But second, and more importantly, because my NYU colleague, Trudeau Scholar, and wonderful person, Lisa Kerr, who worked on the winning side of this case with the Pivot Legal Society (which represents the would-be plaintiffs), will soon guest-blog about it here. I am very much looking forward to her comments. I’ll save mine for later, if there is anything left to add.