Safety Regulations and the Charter

I wrote earlier this week about the decision of the Court of Appeal for Ontario R. v. Michaud, 2015 ONCA 585, which upheld the constitutionality of regulations requiring trucks to be equipped with a speed limiter that prevents them going faster than 105 km/h. The Court found that the regulations could put some truck drivers in danger by leaving them unable to accelerate their way out of trouble, and thus infringed s. 7 of the Canadian Charter of Rights and Freedoms, but that they were justified under s. 1 of the Charter. This is a most unusual outcome ― I’m not sure there a s. 7 violation had ever before been upheld under s. 1 ― and the Court itself suggested that the s. 7 analytical framework set out by the Supreme Court in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 is not well-suited to cases where the constitutionality of “safety regulations” is at issue. In this post, I would like to comment on the role of s. 7 in this and similar cases, and the role of courts in applying the constitution in such circumstances.

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The Court may well be right that the current s. 7 framework is not adequate to deal with “safety regulations” ― at least if it has interpreted that framework correctly. Referring to Bedford, the Court took the position that any negative effect on a person’s security is enough to engage the “security of the person” right protected by s. 7. But I’m not sure that this is really what the Supreme Court meant when it said that “[a]t this stage, the question is whether the impugned laws negatively impact or limit the applicants’ security of the person.” [Bedford 58] Is there no threshold, at least a more-than-deminimis one, for a court to find a s. 7 infringement? Such thresholds exist in jurisprudence on other provisions of the Charter, for example on s. 2(a), where a “trivial or insubstantial interference” with religious freedom, one “that does not threaten actual religious beliefs or conduct,” does not engage the Charter. Admittedly, Bedford says nothing about such a threshold in s. 7, but then neither it nor the other s. 7 cases that come to mind involved situations where the interference with security interests was of a potentially trivial magnitude.

As the Court of Appeal suggests in Michaud, “safety regulations” are likely to create precisely this sort of interference with the security interests, or even the right to life, of people who engage in the regulated activity. The Court explains that it is always possible to say that a more stringent regulation would have prevented a few more injuries or even deaths, so one could argue that the increase in each person’s likelihood of being injured or dying as a result of a somewhat laxer rule is a s. 7 violation. The Court is concerned that acceptance of such arguments will trivialize s. 7, and I agree that this would indeed be disturbing.

But it seems to me that the best response to this problem is to say that a purely statistical increase in the odds of being injured should not count as sufficient to establish the violation of any given person’s rights. In Bedford itself, the courts were able to show how the prostitution-related provisions of the Criminal Code directly and substantially interfered with the security of sex-workers who had to comply with them. The negative impact on their safety was not just statistical; one did not need an actuarial table to see it ― though statistical evidence was used to show the extent of the problems beyond the stories of the claimants themselves.

The Court of Appeal suggests a different approach, which is to treat safety regulations differently from other (perhaps especially criminal) laws, and to take their beneficial effects into account at the s. 7 stage of the analysis, and not only at the s. 1 justification stage as is usually done. In my view, there are two problems with this solution. First, it is inconsistent with the Supreme Court’s longstanding aversion for introducing balancing into the substantive provisions of the Charter. This aversion is justified, not only by the pursuit of coherence, but also by the desirability of putting the onus of proving social benefits on the government.

The other reason I find the creation of a special category of “safety regulations” problematic is that its contours would be uncertain, and would generate unnecessary yet difficult debate. The rules requiring speed limiters in trucks under pain of relatively limited penalties are obvious safety regulations. But it seems like a safe bet that the government would try to bring other rules within the scope of that category if doing this made defending their constitutionality easier, including for example the prostitution provisions enacted, in response to Bedford, as the Protection of Communities and Exploited Persons Act. Of course, the parties challenging these laws would fight just as hard to show that such rules are not really about safety. The uncertainty and the costs of litigation would increase, while the benefits to be gained from this approach are not obvious.

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Now, this whole issue of statistical increases in risk being treated as a violation of s. 7 of the Charter is actually irrelevant to Michaud. That’s not to say the Court should not have brought it up ― I think it did us a favour by flagging it, and we should take up its invitation to think about this problem. Still, the issue in that case is different: it’s not that a safety regulation does not allegedly go far enough, but that it allegedly goes too far. The two possibilities are, of course, two sides of the same coin; they are both possible consequences of the regulator’s preference for a bright-line rule over a standard. The Court is right to observe that there are good reasons to prefer rules to standards (some of the time anyway). And surely the Charter wasn’t supposed to eliminate bright-line rules from our legislation.

However, to speak of the speed limiter requirement as a “bright-line rule” is to miss what is really distinctive about it. Those who challenge the requirement aren’t seeking it be replaced by a standard. They are content with a bright-line speed limit ― provided that they are able to infringe it on occasion (and, one suspects, that they are not prosecuted for doing so). Unlike a speed limit enforced, sporadically and ex-post, by the police, which can be broken if need be, a speed limit enforced permanently and ex-ante by an electronic device cannot be broken at all. In other words, the issue is not simply one of rules versus standards; it’s one of rules whose nature as rules can on occasion be ignored (put another way, rules that can be treated as if they were standards) versus rules that stay rules.

This creates a difficulty for constitutional law. Can a court acknowledge that a rule sometimes needs to be broken? Can a court go even further than that, and say that a rule is constitutionally defective if it doesn’t allow a mechanism for being broken? To say that the legislator is entitled to choose rules over standards does not really answer these questions. As thoughtful and sophisticated as the Michaud opinion is, I don’t think that it really addresses this issue.

That’s too bad, because this problem will arise again, and ever more urgently, with the development of technology that takes the need, and the ability, to make decisions away from humans. Self-driving cars are, of course, the obvious example. As it happens, the New York Times published an interesting story yesterday about the difficulties that Google’s autonomous vehicles run into because they are “programmed to follow the letter of the law” ― and the drivers of other cars on the road are not. Google’s cars come to a halt at four-way stops ― and cannot move away, because the other cars never do, and the robots let them by. Google’s cars keep a safe distance behind the next vehicle on a highway ― and other cars get right into the gap. The former situation might be merely inconvenient, although in a big way. The latter is outright dangerous. What happens if regulators mandate that self-driving cars be programmed so as never to break the rules and it can be shown that this will increase the danger of some specific situations on the road? What happens, for that matter, in a tort claim against the manufacturer (or rather the programmer) of such a vehicle? Michaud gives us some clues for thinking about the former question, though I’m not sure it fully settles it.

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Thinking about constitutional questions that challenges to safety regulations give rise to also means thinking about the courts’ role when these regulations are challenged. In Michaud, the Court took a strongly deferential position, drawing a parallel with administrative law, where courts are required to defer to decisions that are based on the exercise of expert judgment. It noted, however, that “situations, in which a legislature or regulator uses a safety regulation for an improper collateral purpose, or where the regulator makes a gross error, are imaginable.” [152] In these situations, the courts should step in.

I think this is exactly right. Courts must be alert to the possibility that rules that ostensibly aim at health and safety are actually enacted for less benign purposes, and in particular as a result of various public choice problems. Safety rules are attractive to those who want to limit competition precisely because they look so obviously well-intentioned and are difficult to criticize. That said, when ― as in Michaud itself ― there seems to be no dispute that the rule at issue is genuinely meant to pursue safety objectives, courts should indeed adopt a hands-off approach. Michaud illustrates the difficulties they have in dealing with conflicting expert reports based on complex and uncertain science. And the Court is right to suggest that governments should be entitled to err on the side of caution if they so wish ― though, by the same token, I think they should also not be required to do so (and the Court does not say otherwise). This is fundamentally a policy choice, and the courts should not be interfering with it.

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The questions that the Michaud case raises are many and complex. The Court of Appeal’s opinion is thoughtful and interesting, though as I explained above and in my previous post, I’m not sure that its approach to the existing constitutional framework and to the evidence is the correct one. But that opinion does not address of all these questions. Eventually ― though not necessarily in this case, even if there is an appeal ― the Supreme Court will need to step in and start answering them.

Safety, First

Yesterday, the Ontario Court of Appeal issued an interesting decision in R. v. Michaud, 2015 ONCA 585, a test case challenging the constitutionality of regulations requiring trucks to be equipped with a speed limiter that prevents them going faster than 105 km/h. The Court found that the regulations infringed the truckers’ right to the security of the person, and were overbroad and thus contrary to section of the Canadian Charter of Rights and Freedoms. However, the Court held that this violation of section 7 is saved by section 1 of the Charter.

This is a most unusual result, and the Court itself is well aware that it is an anomaly. Indeed, it Justice Lauwers, the author of the Court’s unanimous opinion, offers some observations for why the s. 7 framework he felt bound to apply might not have been suited to the case. While I am not sure that the Court’s conclusion under s. 7 is correct, its reasons deserve careful consideration, because they engage thoughtfully with a number of issues that are likely to be important on the years and perhaps decades to come.

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The main argument for the unconstitutionality of the speed limiter requirement was that in some situations it may be necessary for a truck driver to accelerate in order to get out of a dangerous situation, and that insofar as the limiter prevents him from doing so, it compromises his safety, and thus his constitutionally protected “security of the person.” In addition, it was said that forcing trucks to move more slowly than other vehicles on the road was a source of inherent danger. The government, for its part, argued that speed limiters serve “to reduce greenhouse gas emissions, to reduce the severity of collisions, and to prevent accidents.” [7] Both the defence and the prosecution also submitted expert reports detailing the speed limiters’ alleged dangers and benefits.

In applying section 7 of the Charter, the Court of Appeal stressed that, under the framework set out by the Supreme Court in  Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, the concern at this stage of the analysis is with “the relationship between the individual claimant and the law,” not “the relationship between the private impact and the public benefit of the law.” [62] If the law has an impermissible effect on the claimant, then it infringes s. 7, and its “public benefit” can only be considered at the s. 1 stage of the analysis. The Court considered itself bound, “[o]n a strict and literal reading of Bedford,” to conclude that the regulations do indeed endanger truck drivers in an overbroad way. They prevent a truck driver “from accelerating beyond 105 km/h in all situations where it is needed to avoid collisions,” [73] compromising his security. “For those in such a situation,” the Court holds, “the law contradicts its own purpose of improving highway safety; for them the legislation is overly broad and operates in an arbitrary manner.” [74]

The Court then turns to s. 1. It begins by observing that, in Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, the Supreme Court recognized that it might be possible to justify violations of s. 7 by reference to the “public good,” which is not considered in an analysis under that provision. “This,” the Court says, “is one such situation. More are predictable” [83] due to the exclusion of the beneficial effects of the impugned law from consideration under s. 7.

The Court then proceeds to discuss safety regulations and risk management at some length. It notes that “[s]afety regulation often sets bright line rules, rather than standards,” [88] which makes for greater legal certainty. The trouble is that such rules will both allow behaviour that contradicts their purpose to happen, and penalize behaviour that isn’t actually inconsistent with their aims. The substance of each rule is also subject to a cost-benefit analysis. The more stringent a safety rule, the more accidents and deaths it will prevent; but the more onerous compliance with it will be. Designing an optimal rule is necessarily a trade-off between safety and efficiency, complicated by the uncertainty of the relevant science and lack of experience. And however the balance is ultimately struck, it will always be the case that “the regulator countenances the possibility that someone participating in the regulated activity will be put at risk of injury or even death” [98] by not making the regulation stricter than it is. As a result, the Court cautions, “much safety regulation, if it falls to be assessed under the singular approach required by Bedford, would be seen to be inconsistent with security of the person under s. 7 of the Charter.” [99] An additional complication results from the choice between ex-post regulation of conduct by means of imposing penalties for infringing a rule and ex-ante regulation, as in this case, that makes infringement impossible. Ex-ante regulations are an application of the “precautionary principle,” which the Supreme Court has endorsed in the context of environmental law, but they are more likely to be over-inclusive and thus overbroad in a way contrary to s. 7. The takeaway from this discussion is an insistence that, in view of the complexities of regulatory design and the expertise that goes into it, and also considering that what is at issue is a regulatory rather than a criminal offence, courts ought, as in administrative law, to defer to legislative decisions.

Applying at last the s. 1 framework to the speed limiter requirement, the Court concludes that its safety objectives are pressing and substantial, considering “[t]he daily carnage on our roads.” [115] The requirement is connected to these objectives, because of “the link between speed and the severity of collisions.” [119] It is also minimally impairing ― in sense of being well within the realm of reasonable regulatory choices to which courts ought to defer. Even though the ban on speeding by trucks is “absolute,” the legislature was entitled to conclude that its safety objectives demanded no less. The choice of the figure at which the limiter must be set is also something on which courts ought to defer to the regulators. Finally, the positive effects of the limiter outweigh the negative ones, which only arise in a very small fraction of cases.

Before concluding, the Court offers its “reflections” on what it sees as the defects in the analytical framework it saw itself bound to apply. In its opinion, neither the trade-off between maximum safety and efficiency nor the choice of (occasionally over-inclusive) rules over standards “truly engage either deprivation of security of the person or the constitutional principles of fundamental justice; the idea that they do risks trivializing these concepts.” [149; footnote omitted] The Court suggests that the Supreme Court’s definition of overbreadth might itself be overbroad, and that treating any negative impact on a person’s security interest as a “deprivation” within the meaning of s. 7 allows violations to be made out too easily. Its proposed solution “is to recognize them as a distinct category of legislation,” [151] for which societal effects would be taken into account at the s. 7 stage.

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As I have suggested above, I’m not entirely sure that the Court’s s. 7 analysis is right. Mostly I wonder whether the Court is right to conclude that security of the person is actually engaged. The way it describes the evidence, there doesn’t seem to be much if any proof that any situations where we know that accelerating past 105 km/h actually occurred. The Court is content to infer that from the finding by the court below on the basis of a study, “acceleration was used in fewer than two per cent of traffic conflicts to avoid potential crashes” [23] ― which the court then recasts a conclusion that “acceleration to avoid collisions is needed in about 2% of traffic conflicts.” [73] But, for one thing, that an “evasive manoeuvre” was used doesn’t show, it seems to me, that it was needed and there were no alternatives. For another, as the Court itself points out, we don’t know the actual speeds at which these incidents occurred.

In short, unlike in cases like Bedford, where social scientific evidence was used in addition to stories of actual people affected by the impugned legislation, here, the case seems to be based purely on statistical guesswork. To be sure, there was, apparently, some “anecdotal” evidence from the accused himself, but the Court does not even mention it in its analysis. Whose security was affected? To what extent? Was there a more than de minimis negative impact, much less a deprivation? I’m not sure the Court has answers to these questions.

This case is most interesting, however, for the broader issues it raises. Is the Court right that the approach to section 7 set out in Bedford is not suited to analyzing the constitutionality of safety regulations? Is its proposed solution to this problem the right one? What role should the courts play in such cases? I will address these questions, and others, in a separate post later this week. In any event, unless the Supreme Court takes up this case, if Ontario regulators want to put safety first, they’ll have to rely on the Charter’s section 1.

More Dead than Ever

While the Supreme Court is getting ready for the oral argument in Québec’s challenge to the abolition of the long-gun registry by the federal government (set for October 8), a different challenge to the constitutionality of the Ending the Long-Gun Registry Act was dismissed by Ontario’s Superior Court of Justice earlier this month in Barbra Schlifer Commemorative Clinic v. Canada, 2014 ONSC 5140. Justice Morgan held that, contrary to the Clinic’s claims, the abolition of the gun registry did not infringe the right of women either to the security of the person or to equality, and thus did not contravene sections 7 or 15 of the Charter.

Justice Morgan began his s. 7 analysis by discussing the “state action problem” with the Clinic’s argument. The Clinic claimed that the abolition of the gun registry infringed s. 7 because it increased the risk that women would suffer gun violence, in particular from their domestic partners. In its view, its argument was similar to those that prevailed in Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, [2011] 3 SCR 134 (the Insite case) and in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101, where the Supreme Court found, respectively, that a denial of an exemption from drug laws to a safe-injection clinic and the prostitution-related provisions of the Criminal Code infringed s. 7 by increasing the risks to which the clinic’s users and sex workers were subject. But the fact a government policy fails to reduce a risk to which a person is exposed as much as possible is not enough, Justice Morgan found:

[c]ontemporary society is permeated by risk, including the risk of violent crime and injurious use of firearms, but unless that risk is a creation of state intervention it is not within government’s constitutional responsibilities. (Par. 25; emphasis mine.)

There is, furthermore, a crucial difference between the alleged increase of risk as a result of the abolition of the long-gun registry and the facts of the Insite case and Bedford, in that in those cases the government had prevented people from taking steps, on their own, to minimize the risks they were subject to, whereas the gun registry is a government-created risk mitigation scheme (if indeed it is that). The upshot of the Insite case and Bedford is that the government cannot prevent people from reducing the risks they run, not that it has a duty to do it by itself. Indeed, Justice Morgan pointed out,

[t]he Supreme Court indicated in Bedford, at para 88, that while the state cannot make prostitution even riskier than it is, the claimants [in that case] were “not asking the government to put into place measures making prostitution safe” (par. 34).

When Parliament itself creates a risk-reduction scheme, it can expand or limit it as it in its wisdom sees fit. So long as it doesn’t interfere with people’s autonomous risk-reduction endeavours, it does not act unconstitutionally.

The Clinic’s position also suffered, according to Justice Morgan, from a “baseline problem.” As he saw it, the Clinic

use[d] the 1995 Firearms Act [which had created the long-gun registry] as a baseline against which to measure the [new] licensing and registration system … , and finds the latter lacking. In the Applicant’s characterization, while the regulatory regime that existed from 1995 until … 2012 “provided an essential element in the effective protection for the s. 7 rights of women”, the “[Ending the Long Gun Registry] Act’s purpose appears to relate primarily to political aims”. (Par. 41)

But a statutory scheme cannot be made into a constitutional standard in this way. The gun registry’s creation was no more “politically neutral” than its abolition (par. 45). It was a choice of policy and politics, and it can be reversed or revised.

Justice Morgan then turned to the evidence which the Clinic adduced in support of its s. 7 claim, and found it insufficient. That evidence seems mainly to have consisted of statistics showing that gun violence declined in Canada while the long-gun registry was in operation. But, Justice Morgan said, gun violence had been declining before the registry was set up, and the early indications are that gun violence against women has not increased after it was abolished. In fact, as the government argued, there is a long-term trend towards the reduction of violent crime, so that what the Clinic showed was correlation, but not causation. Furthermore, police officers ― including those who served as the Clinic’s expert witnesses ― suggest that the effectiveness of gun registration (as opposed to licensing and background checks, which the abolition of the registry does not affect) is debated and, at best, limited. Thus even if an increase of risk resulting from the abolition of the long-gun registry were a constitutionally cognizable harm, the Clinic, in Justice Morgan’s view, had not demonstrated that the abolition had that effect.

Justice Morgan found that similar evidentiary problems undermined the Clinic’s claim that the abolition of the long-gun registry infringed the Charter’s equality guarantee becaused it would disproportionately affect women would be the victims of domestic gun violence. Again, there is evidence that gun both violence and domestic violence are decreasing. But given the multiplicity of causes likely to be involved, it is very difficult to isolate the gun registry’s role, if any, in these processes. The point, Justice Morgan said, is “not that there is no place for statistical data, but rather that statistical data can rarely, if ever, do the work of proof on its own” (par. 100). Nor was there anything to show that whatever effects the abolition of the gun registry might have on women were discriminatory in the sense of stereotyping or perpetuating past disadvantage. The overall statutory scheme for regulating firearms still tries to reduce gun violence, including in particular gun violence against women. Changing the mix of criminal and regulatory elements in that scheme was not, Justice Morgan said, discrimination.

I think this is the right decision. Justice Morgan’s point about the “state action problem” and the “baseline problem” are well taken, and his concerns about the insufficiency of the evidence to show that the gun registry’s abolition would have the disastrous consequences its supporters expect are justified.

I don’t know whether the Clinic intends to appeal his decision, but its chances of success would be very low indeed, given the Supreme Court’s insistence, in Bedford, that a trial judge’s assessment of social science evidence in constitutional cases is entitled to as much deference on appeal as any other form of fact-finding. Even if Justice Morgan were wrong in has approach to the issue of state action (and I don’t think that he is), his conclusions regarding the evidence would still stand.

For better or worse, this is the brave new world of Charter litigation ― a world in which cases live and die depending on the lawyers’ ability to assemble an evidentiary record and to convince a trial judge of this record of that record’s persuasiveness. And as I wrote here in discussing the potential dangers of this approach, “[t]he 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.” So here the government was able to show that the general trends in crime reduction, and its other (purportedly) crime-preventing policies meant that it was not possible to establish the effects of the gun registry’s abolition or continued existence with any degree of certainty.

This is not to say that I regret the outcome of this particular case, though others will find it regrettable. I will, however, note the irony of the government’s reliance on statistics showing a long-term general decrease in crime to defend this one element of its criminal-law legislative programme while implementing other, “tough-on-crime,” policies with a total disregard for these statistics. I hope that the courts which will consider the constitutionality of these measures will take good note. The gun registry is more dead than ever ― though the Supreme Court might still resurrect it in Québec. But in killing it, the government might just have inflicted some collateral damage on its other policies. No regrets from me there, either.

You Don’t Have Two Cows

The laws of Ontario prohibit the sale or “distribution” of unpasteurized milk or products (like cheese) made from unpasteurized milk. Such milk can contain microbes and cause the people who drink it or eat products made from it to become ill. But some people are prepared to take the risk. They even claim, although without acknowledged scientific basis, that raw milk can have health benefits. A couple of farmers have come up with what they thought was an ingenious solution. Since the law does not prevent a person from drinking his or her own cow’s raw milk, they sold “cow-shares,” described as making those who bought them “part owner[s] of the milk production” of a cow of the farmers’ herd, and giving them access to raw milk, for an additional fee said to represent payment for the farmers’ taking care of and milking the cow.

Provincial authorities were not impressed, and fined the farmers for distributing unpasteurized milk. The farmers challenged the applicability of the laws prohibiting its distribution to their “cow-shares,” but also argued that, if the law was applicable to them, it was a violation of the guarantees of the security of the person and of liberty in s. 7 of the Canadian Charter of Rights and Freedoms. Yesterday, in R. v. Schmidt, 2014 ONCA 188, the Ontario Court of Appeal rejected their arguments.

On the applicability of the prohibition on the sale of raw milk to “cow-shares”, the court found that

[t]he oral cow-share agreement does not transfer an ownership interest in a particular cow or in the herd as a whole. The member does not acquire or exercise the rights that ordinarily attach to ownership. The member is not involved in the acquisition, disposition or care of any cow or of the herd. The cow-share member acquires a right of access to the milk produced by the appellant’s dairy farm, a right that is not derived from an ownership interest in any cow or cows (par. 25).

Indeed, although the shares were supposedly denominated in fractions of cows (the lowest being 1/4), the total of the fractions added up to more than the herd’s head-count. In short, “the cow-share arrangement is nothing more than a marketing and distribution scheme that is offered to the public at large by the appellant” (par. 26).

As for the Charter claim, the Court did not find a violation of either the right to the security of the person or of liberty. Regarding the security of the person, although some consumers of raw milk consider it as having health benefits, there was no objective evidence of these benefits, and subjective belief is not enough to make out a violation. Nor, says the court, is preventing a person from consuming a product on the ground that it could be dangerous equivalent to forcible medical treatment, since there is no interference with the person’s “bodily integrity” (par. 36). Regarding liberty, the Court was bound, and saw no reason to depart from, the Supreme Court’s jurisprudence holding that the choice of a line of business was not protected by the Charter. Like the choice to smoke marijuana, considered by the Supreme Court in R. v. Malmo‑Levine, [2003] 3 S.C.R. 571, 2003 SCC 74, the choice to drink raw milk does not go to the core of personal autonomy which the Charter protects. Besides, and in any event, the ban on the sale of the distribution of raw milk does not breach principles of fundamental justice. Being motivated by demonstrated health concerns, it is neither arbitrary nor overbroad.

Legally, this is surely the correct result. The Supreme Court would need to overturn both its narrow reading of “liberty” and its rejection of the harm principle is one of the “principles of fundamental justice” to make the farmers’ claim viable, which is too bad ― if, that is, the microbes that can be transmitted through raw milk cannot subsequently be passed on from person to person. If they can, then the ban on raw milk is not merely paternalistic, but actually protects third parties who, unlike the consumers of raw milk did not undertake the risks voluntarily.

Perhaps a differently organized cow-share, designed to respond to the Court’s concerns ― identifying the specific cow a member owns, making the number of shares correspond to the number of cows, supplying the member with his or her own cow’s milk, etc., ― might still escape the application of the statute. Whether it would workable (and just how expensive it would be) is a different question. In the meantime, though cow-share members might think that they have two cows, or 1/4 of a cow anyway, they really don’t.

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.