Major Ontario judicial decision strikes down Bill C-36 - BREAKING!!!
- Thread starter mandrill
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The thing they are not appealing Anwar but instead another case in Superior Court that relied on Anwar. I am not sure these are the greatest conditions for the crown to have a successful appeal.
2021 ONCA 694 (CanLII) | R. v. N.S. | CanLII
Access all information related to judgment R. v. N.S., 2021 ONCA 694 (CanLII) on CanLII.
www.canlii.org
So where does Anwar play into this decision. Anwar was the only case decided at the lower court level that had the benefit of a full trial based on the Charter issues involved. Hasn't the Supreme Court of Canada in the past said that appeals courts should tend to make Constitutional judgements based on a full trial record?
Lastly it seems as if there is now a difference in precedent between the Ontario Court of Justice and the Ontario Supreme Court.
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I've definitely held off since C36 passed... Super paranoid here, And I check back every so often to see if there's any progress to getting it overturned... This time though, I decided to check to see if any of my favourite SPs or TDL are still around, (most aren't). I did find a really beautiful SP exactly my "type" (I hope she's still around when covid blows over, and doesn't need references...) ... I decided to keep her thread in my watch list... Thus I do have a few questions
C36 was supposed to have a mandatory review after 5 years right? I recall (maybe incorrectly) about a month after it was overdue there were news articles saying that it never happened...
Also, how does everyone stay safe post-covid and post c-36? I know for quite a bit of time after the bill was passed there were lots of conflicting information about what/if/how everything was enforced... I imagine by now the dust has settled a bit more and we have a greater understanding of the situation...?
very uncomfortable about pulling the trigger on this if anyone couldn't tell ... heh.
C36 was supposed to have a mandatory review after 5 years right? I recall (maybe incorrectly) about a month after it was overdue there were news articles saying that it never happened...
Also, how does everyone stay safe post-covid and post c-36? I know for quite a bit of time after the bill was passed there were lots of conflicting information about what/if/how everything was enforced... I imagine by now the dust has settled a bit more and we have a greater understanding of the situation...?
very uncomfortable about pulling the trigger on this if anyone couldn't tell ... heh.
It looks like the Ontario Court of Appeals has a hearing scheduled on this issue on Friday but I have seen very little press about it.
Not sure if there is anyway to be able to watch the hearing remotely or if there will be any press coverage of it.
Courtroom 10 - Court of Appeal for Ontario
Court of Appeal for Ontario Weekly Case List Courtroom No. 10, Osgoode Hall 130 Queen Street West, Toronto, Ontario Courtroom...
www.ontariocourts.ca
Not sure if there is anyway to be able to watch the hearing remotely or if there will be any press coverage of it.
There is another Supreme Court of Canada ruling that come down today relating to the pre Bedford laws. I suspect anti Sex Work folks will consider it a victory but I would think twice and it read it carefully before I come to that conclusion. In particular the Supreme Court of Canada indicates that views Bill C-36 in response to Bedford and NOT as some type of completely new legal regime which many on the radical feminist left consider it to be.
decisions.scc-csc.ca
R. v. Albashir - SCC Cases
decisions.scc-csc.ca
And below is a link to the SCC's hearing back in May.There is another Supreme Court of Canada ruling that come down today relating to the pre Bedford laws. I suspect anti Sex Work folks will consider it a victory but I would think twice and it read it carefully before I come to that conclusion. In particular the Supreme Court of Canada indicates that views Bill C-36 in response to Bedford and NOT as some type of completely new legal regime which many on the radical feminist left consider it to be.
R. v. Albashir - SCC Cases
So, can someone summarize the outcome of today’s hearing in plain english and what it means? Thanks.
There is an ongoing Twitter thread by a reporter who is at the hearing. This is probably the best guide in terms of what is actually going on at today's hearing.
In terms of making a prediction as to what the result of today's hearing is well that is sometimes a dangerous thing to do. I will say at this point the case will definitely go to the Supreme Court of Canada if either side loses and wants to appeal(The SCC is certain to take the case) and in particular the pro SW side will certainly appeal if the Ontario Court of Appeals rules for the crown. I also think after reading and watching the Albashir case that was argued before the SCC in May that no one picked up on I am pretty certain that when/if the case gets before the SCC they will rule C-36 unconstitutional. In fact two of the female SCC justices during the arguments in Albashir were asking the crown about hypotheticals about what would happen if the SCC later ruled the "new" post Bedford C-36 laws unconstitutional during a future case which is about as explicit a message the SCC can send about an issue that has yet to be brought before it.
So all that being said I won't predict how the OCA will rule and how the govt will respond i.e. if the crown loses do they appeal to the SCC, change the law, or just allow C-36 to be declared unconstitutional in Ontario. I think the more interesting thing is if this gets to the SCC and they strike it down then SCC institutionally has to get a prize for being the most sexually libertine constitutional court in the world going back to the old "Hut" pressing and persistent conduct case in the 1970s all the way through to the Labaye swingers club up to and through Bedford. A more cynical person would wonder if some or all of the SCC judges have some type of connection to SW either as former/current clients and providers. It has also to be pretty discouraging to radical feminists that female justices on the SCC don't seem to have the same intense dislike of sex work that they do which again a more cynical radical feminist might start making certain conclusions as to personal bias.
**I remember when this news story came out certain friends of mine who dislike the SCC especially of a "conservative" bent where making suggestions that the justice in question couldn't be found as he was at a certain type of establishment in downtown Ottawa that many TERB would be quite familiar with. Again there is no evidence to suggest that but there are certain types of establishments within blocks of the Supreme Court building in Ottawa and that is just a fact.
This is an article about the Albashir case in the Canadian Press. While it is a victory for crown there seems to be a continuing assertion by the SCC that non coercive/exploitative conduct related to sex work cannot be criminalized by Parliament whereas the govt/crown is arguing right now in the lower courts that Parliament CAN ban sex work based on morality.
looniepolitics.com
And there is now an article that has been released about the hearing earlier today.
thecanadian.news
Supreme Court affirms escort service convictions in case that hinged on timing - Loonie Politics
OTTAWA — The Supreme Court of Canada has upheld the convictions of two men arising from their operation of an escort service, settling a dispute over validity of the law when the offences took place. In its 7-2 decision Friday, the high court said the Criminal Code provision under which the men...
looniepolitics.com
And there is now an article that has been released about the hearing earlier today.
Court appeal to decide if three parts of the Harper government's sex work legislation are unconstitutional - The Canadian
The Ontario Court of Appeal will soon decide whether three provisions of the Harper government’s sex work legislation are unconstitutional to compel sex workers to operate in unsafe conditions. In a court hearing on Friday, the Crown defended the legislation before a three-judge panel, arguing...
thecanadian.news
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How bizarre… the idea that Parliament can ban sex work based on morality will never fly, as morality is a subjective construct and therefore arbitrary. Statements such as “sex work is inherently exploitative” and “all sex workers are victims” are perfect examples of such a misguided notion. However, I am somewhat intrigued as to whether sex work is actual “legal” under the current law. The crown has stated that the previous judge erred as he wrongly assumed that sex work was legal. The crown continues saying that sex work is actually illegal, but sex workers are granted immunity by virtue of being victims. Yet, as was stated, by allowing sex work to continue there is an implicit admission that it is a defacto legal activity. To me there is no merit to such an argument from the crown, as it’s the same as saying drug dealing is illegal, but drug pushers have been granted immunity since we consider them victims. I know how ridiculous that sounds, but that is essentially what the crown is saying more or less. So, assuming for the moment that the three parts of C-36 argued for and against yesterday are ultimately found to be unconstitutional, how likely is it that the purchasing of sex provision will be declared unconstitutional and struck down as well?
I actually think the crown's argument that SWers are free to advertise on websites as long as they are "offshore" might actually be the weakest part of their argument and the straw that breaks the camels' back. Does this mean agencies can operate from offshore too? Firstly as a practical matter it is true that offshore advertising platforms are essentially out of reach of Canadian law but to say that Parliament actually intended this outcome in C36 I think has almost no factual basis(Also does someone who commits investment fraud say directed at Canadian investors in Canada from offshore exempt from the criminal code too). Second if the courts actually said "offshore" agencies and websites targeting the Canadian market were explicitly legal while onshore ones were illegal as the crown suggests I think that would actually have the impact of encouraging more and better capitalized agencies and platforms targeting the Canadian market with the outcome of a larger market for sex work in Canada expressly going against what the crown says were the goals of Parliament.
Obviously the crown attorneys are in a tough fight and trying to throw whatever they can at the wall to see what sticks. The other comment I will make is I am not sure the parallel to drug dealing and using apt. Possession and distribution of illegal drugs is prohibited by law whether they are for financial gain or NOT for financial gain. The Supreme Court in the Labaye Swingers Club case has already said that sexual intercourse between consenting adults is a positive form of human association protected by the Charter. Thus the crown has to argue that simply because money changes hands sexual intercourse between consenting adults should be criminalized. Again while the sex purchaser provision is not at issue in this case this is a much more difficult case for the crown to argue than trying to defend the drug laws. The Supreme Court has justified banning drugs based on there being harmful whether or not they are sold or given away. In Labaye they court already said sex unlike drugs is a positive form of human activity the government cannot ban under freedom of association. For these reasons thinking about this some more I think the crown will probably loose at the Ontario Court of Appeals. Remember all that is at issue are the living on the avails type offenses carried over from the old pre Bedford law(that the Supreme Court ruled unconstitutional) not the sex buyer offenses that will still remain on the books whatever the outcome of this case.
Obviously the crown attorneys are in a tough fight and trying to throw whatever they can at the wall to see what sticks. The other comment I will make is I am not sure the parallel to drug dealing and using apt. Possession and distribution of illegal drugs is prohibited by law whether they are for financial gain or NOT for financial gain. The Supreme Court in the Labaye Swingers Club case has already said that sexual intercourse between consenting adults is a positive form of human association protected by the Charter. Thus the crown has to argue that simply because money changes hands sexual intercourse between consenting adults should be criminalized. Again while the sex purchaser provision is not at issue in this case this is a much more difficult case for the crown to argue than trying to defend the drug laws. The Supreme Court has justified banning drugs based on there being harmful whether or not they are sold or given away. In Labaye they court already said sex unlike drugs is a positive form of human activity the government cannot ban under freedom of association. For these reasons thinking about this some more I think the crown will probably loose at the Ontario Court of Appeals. Remember all that is at issue are the living on the avails type offenses carried over from the old pre Bedford law(that the Supreme Court ruled unconstitutional) not the sex buyer offenses that will still remain on the books whatever the outcome of this case.
I could never understand that statement: E.g. As you said, simply because money changes hands, consensual sex between adults is criminalized. As long as there is no coercion or trafficking, what’s the point? Again, it’s a moral argument which won’t fly in the court of law. Now, assuming the crown loses, what happens next? Also, if the laws are found unconstitutional, should that not apply across Canada and not just Ontario since it is a federal law? Lastly, assuming these three provisions are struck down in their entirety, we would have a situation where everything about and surrounding prostitution is legal, with the lone exception of purchasing. Would that not make it easier to challenge the specific provision of purchasing being illegal? It would make no legal / logical sense to enforce it under such circumstances. I’m pretty sure a few challenges which include the aspect of purchasing are before the courts already.
I am not at all surprised by Karakatsanis J's decision in Albashir. I have no doubt that the courts will continue to prohibit and punish exploitative, controlling pimping, however they have contort the law to do that. And here all the Justice had to do was utilize the suspension period to resolve the issue in this case.This is an article about the Albashir case in the Canadian Press. While it is a victory for crown there seems to be a continuing assertion by the SCC that non coercive/exploitative conduct related to sex work cannot be criminalized by Parliament whereas the govt/crown is arguing right now in the lower courts that Parliament CAN ban sex work based on morality.
Supreme Court affirms escort service convictions in case that hinged on timing - Loonie Politics
OTTAWA — The Supreme Court of Canada has upheld the convictions of two men arising from their operation of an escort service, settling a dispute over validity of the law when the offences took place. In its 7-2 decision Friday, the high court said the Criminal Code provision under which the men...
I note that her sidebar that non-exploitative "avails" could still be arguably unconstitutional even during the suspension period hints strongly where the court wants to take the law. Coervice, exploitative pimping will continue to always be criminalized. And voluntary sex work business will probably be found to be constitutionally protected.
I will read the report on the ON CA case tomorrow.
The potential outcome as you’ve described seems quite likely. My guess is that the three impugned provisions will be struck down by the judge. What would be the appeal process in this instance by the crown, if any? As I mentioned in a previous post, if we are left in a position where the only outstanding illegal act which remains is that of purchasing, I feel an argument could be made that it infringes upon safety of the person, and thus be declared unconstitutional. Otherwise, we would be left with a staggering contradiction. Hopefully my rambling made sense, as I’ve had a few this evening. Please feel free to clarify or point out any errors/inconsistencies.
I need to read the ON CA article. But my sense is that the Bench has had enough of the anti prostitution laws, except as they relate to coercive pimping.
If the ON CA strikes down C-36, there is just one more place to appeal - the SCC. And the SCC would accept this case automatically due to its importance.
Point taken. However, what happens if the crown loses and chooses not to appeal? In that case, would the the provisions still be in force in other provinces? How about the provision of purchasing? Will this have any effect either way? How likely is it that the purchasing provision will be declared unconstitutional also? Please take your time to respond as you read the decisions in other cases etc for an informed reply. Unfortunately, I am not well versed in. law, and how it pertains to C-36 so I’m at a bit of a loss as to what it means for enforcement in Ontario and especially other provinces. Hence, all the questions. Thanks!
