Major new judicial ruling strikes down C-36 (again)

[mandrill]

Yes and no. I would say it is more along the lines that most consumer items are generally cheaper in the US than all other Western countries(i.e. Canada, Germany, the UK etc.) Sex work though is the great exception. Take Switzerland(which has full decriminalization) for example just about EVERYTHING in Switzerland is significantly more expensive than in the US or Canada but not sex or VIP Companionship. In fact I would argue that VIP companionship in Switzerland is basically priced to be somewhat less than that in the US when you factor in the travel costs to and from Switzerland.

Anyways simply from an economics perspective it will be fascinating to see how this all shakes out.

Your theory is that heavy LE and criminalization in the US has driven prices there further and further out of wack with the rest of the world, due to the risk factor. And as prices ascend steeply, it also changes the perception of the experience. In Canada, it's "an hour of inexpensive fun in the middle of my work day at the office". In the US, it's "I'm going to rent a $1,000,000 yacht and have a half-dozen high rollers meet me to discuss multi million $ business deals and I'll pay $25,000 to have some girls come by as well to show the other guys that I'm a spender."

 

[tmmsmyth]

In terms of the US I think that is probably right. I would look at these agencies below from Germany, Switzerland and the Netherlands on the highest end of the European market and then compare there rates to the US or even Toronto. I think there is a strong case they are a lot less than in North America for the quality of service they provide. Is that because of legalization or just differences between Europe and North America I don't know?

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[Jolly_Penguin]

C-36 not only needs to be struck down, but the government's taboo over sex work needs to be eroded. Then consenting sex workers and their clients can become allies with the police against sex trafficking. As it is, if a John sees reason to suspect he discovered a sex trafficking operation, he is very much encouraged NOT to report it.

 

[drlove]

C-36 not only needs to be struck down, but the government's taboo over sex work needs to be eroded. Then consenting sex workers and their clients can become allies with the police against sex trafficking. As it is, if a John sees reason to suspect he discovered a sex trafficking operation, he is very much encouraged NOT to report it.

Agree completely. However, realistically speaking - what is the chance that C-36 will in fact, be struck down? Granted, we have the Anwar case which has yielded some results in our favour. The problem is that the government will not challenge the lower court’s ruling. This means that the case will likely never proceed upwards to the SCC. Therefore, the law as it is written will apply verbatim in every province outside of Ontario. End result: status quo.

 

[tmmsmyth]

Some things I want to point out to those who don't necessarily follow the evolution of criminal law.

First Parliament is the only body that can actually modify the Criminal Code text not even the Supreme Court of Canada technically has that power thus you still have offenses in the code that were ruled unconstitutional decades ago lingering on in the code. Even when the Supreme Court gives Parliament a timeline to amend laws like in the Bedford case this is purely based on judicial precedent. Nothing in the Constitution actually requires the Supreme Court to give any type of grace period to Parliament or propose any type of specific remedy.

Second Parliament isn't even required to enact a criminal code. Parliament could simply choose to use an old common law system of criminality such as existed prior to 1892 and in a more limited manner prior to 1954. In fact the Criminal Code in itself is still heavily reliant on common law principles. Even terms such as prostitution, obscenity and bawdy houses used in statute are basically relying on old common law definitions.

Thirdly I would argue that since the early 1960s on, a few years after the unified criminal code was passed in 1954 btw, when the Canadian Bill of Rights was passed and then the Charter coming into effect in 1982 Canada has actually been moving back towards a more judge made common law system of criminality. The courts still in public want to claim charter claims and common law claims are legally separate and distinct but if you look at a case like R v. Labaye which was a obscenity case involving swingers clubs argued on the statutory definition of obscenity(of which obscenity is not defined in statute but is again one of these terms taken in from common law) the Supreme Court was quite notably mixing in Charter and common law principles. Basically the court argued there was nothing inherently wrong with swingers clubs and since Parliament choose to rely on very old common law definition of obscenity that says nothing about swingers clubs then the court should assume swingers club aren't obscene. The court did not actually throughout the obscenity laws regarding bawdy houses on Constitutional grounds but essentially made them unenforceable. Something similar happened with a pre-Charter prostitution case called Hut in the 1970s when the govt had to prove pressing and persistent conduct to make a solicitation charge. This lead to the communication statute which was upheld in the Supreme Court reference in the early 1990s but then later thrown out in Bedford.

I would argue what the judge in Anwar did is basically make his own judicial test of how an escort agency in Ontario at least can remain legal and not be considered a prostitutions enterprise. This is actually relevant is the old 19th century definition of prostitution relies on terms like indiscriminate sexual activity but is a provider or agency that screens clients engaging in indiscriminate commercial sex. I would argue the judge in Anwar as a matter of common law interpretation is basically saying no they aren't.

This later point is significant in that I believe the facts of some of the other cases where bill C-36 was found constitutional are/were much different than the Anwar case hence there is less of a contradiction than might appear on the surface. BTW, I find the anti sex work people have no conception at all of the difference between common criminal law and statute criminal law. It is also to govts interest to maintain these very vague terms like prostitution and obscenity. In fact a lot of the ruling was in Labaye was basically saying to Parliament don't even try to come back with a specific criminal law banning swingers clubs if you don't like our ruling because we will surely throw it out on Charter grounds hence the mixing of charter, common, and statute law principles in the decisions.

 

[drlove]

I know this case and it was heard in the Superior Court (Anwar was heard in the OCJ, not SCJ). To my knowledge it has not (yet) gone to the Court of Appeal. I can ask around my network to see if anyone knows different.

As Dave said, that could be the reason why it hasn’t gone to the COA. If that’s the case, would that mean the entire constitutional challenge is dead in the water?

 

[drlove]

The level (and location) of court dictates how decisions are used and followed in subsequent cases.

- Precedent: decisions operate as authoritative law, but a higher court (eg. appellant, SCC) can overrule a lower court
- Binding: applies to one's own jurisdiction, courts must follow unless there's a good reason not to
- Persuasive: courts can choose whether or not to follow

CanLii puts some good info out on this.

Constitutionality isn't always based on whether criminal charges have been laid. In criminal cases the defence often argues some element of Charter rights were breached during procedure (e.g. arrest, detention, evidence gathering, timeliness of trial etc.) Criminal charges can also lead to a legislative challenge, but they don't have to. If you read through Bedford, the case didn't rest on whether someone was unjustly charged and a Charter violation occurred; the case discussed whether the laws themselves were constitutional, particularly under s. 7 (right to life, liberty and security of the person).

Given what you’ve said here, do you feel the Anwar constitutional challenge will continue to proceed through the ranks?

 

[tmmsmyth]

So just to follow-up.

1. The original Anwar case was held in the Ontario Court of Justice which is the lower level trial court system in Ontario. For some of you in the US this might be considered akin to District Court vs Superior Court(In Canada however the Federal Govt has certain powers regarding Superior Courts such as the power to decide which judges to appoint whereas judicial appointments for the OCJ are a provincial matter but this role of the Federal govt is largely irrelevant for our purposes of discussion). Defendants in Canada and Ontario in particular have the option of having there case heard in either the OCJ or the SCJ with the exemption of certain serious charges such as homicide or if the defendants desire a jury trial. In the Anwar case both defendants Hamad and Tiffany choose for a trial in the OCJ.

2. Challenges by the public of the constitutionality of laws under rules of civil procedures go through the SCJ as a matter of rule due to the fact the SCJ has jurisdiction over civil claims above a certain dimininous dollar amount. However, constitutional issues including outright constitutional challenges of statutes can occur in the OCJ or other "lower" trial courts in Canada when as a matter of course the issue at hand is properly assigned to a lower court. The Anwar's were charged with a crime that they believed to be unconstitutional as a matter of statute. They opted for a trial in the OCJ which is there right and thus the challenge of the law took place in the OCJ. Notably once the law was declared unconstitutional by the OCJ trial judge if the crown wanted to appeal the normal process for this type of OCJ ruling would have been a direct appeal to the Ontario Court of Appeal notwithstanding there are some OCJ rulings that are appealed first to the SCJ. Essentially at trial the defense waived all claims of facts and statutory interpretation(of which in my opinion they could have made some reasonable claims on) and instead solely focused on the Constitutional claims.

3. I suspect there maybe be other cases in the future regarding these specific violations that might take places in the SJC because they were already in progress at the time of Anwar or are also being charged with other more serious offenses, however I suspect any future defendants charged with a similar fact patterns as the Anwar's i.e. no coercion or other non consensual activity will almost certainly opt to have there cases heard in the OCJ where judge McKay's ruling will have the strongest precedent.

4. The Supreme Court of Canada for many years has basically set out a procedure manual as to how trial judges(in two cases called Danson and Mckay, not related to the judge in Anwar) should conduct Constitutional challenges and I everyone I talked to seems to agree that judge Mckay followed it to the letter. Notably the defense attorney for the Anwar's was a noted constitutional lawyer and law professor so it is not as if this case was being undertaken by a bunch of amateurs.

5. There is a prominent Constitutional case called Sullivan that is going before the Supreme Court of Canada which is mostly unrelated to the issues here(the case is mostly about the defense of autonomism) but one issue that is going to be decided by the court is what are the validity of laws that have been ruled unconstitutional by a lower trial court judge but not appealed by the crown. The crown in Sullivan is arguing that only the Supreme Court of Canada can issue a final declaration of unconstitutionality but I suspect the SCC is not going to be willing to go nearly that far especially in regards to ruling where the crown could have easily appealed but chose not to like Anwar.

Overall within the jurisdiction of the OCJ if the crown was to charge someone under C-36 again I think the crown would at a minimum just on common law stare decisis principles have to get a future judge to rule not only was the Anwar ruling incorrect but that since the Anwar ruling that there has been proveable and recognizable harm cause to society by defacto legalizing third parties from assisting sex workers(i.e. harm from the error in law Judge Mckay would have to be found to have made). I think this would be a very uphill climb to make. I suspect if C-36 gets to the Supreme Court of Canada it will be as a result of charges brought in a different province than Ontario or a direct challenge to the law by members of public suing the govt on civil grounds. Also keep in mind the OCJ judges have busy caseloads and the lowest pay among all judges. My general view is that OCJ judges especially in busy courthouses like Toronto which the jurisdictions where the largest number of agencies and SWers reside are looking to try to reduce their caseloads and keep the wheels of justice moving not take on additional work in attempting a long trial to prove a ruling by one of their colleagues is incorrect. Yes maybe there is some OCJ judge way up in Thunder Bay or Timmons that has some huge objection to sex work and Judge McKay's ruling in Anwar but I doubt that the OCJ bench in the downtown Old Toronto City Hall Courthouse with there massive daily caseload they deal with is really eager to re-invent the wheel so to speak and take it upon themselves to do another Constitutional trial. So effectively in southern urban Ontario I believe the Anwar ruling is pretty much here to stay for now pending some type of case coming up elsewhere in Canada that makes it to the SCC.

 

[tmmsmyth]

I am not sure in terms of the Sullivan case whose decision it was to go to the SCC. Technically there are actually three distinct parties in this type of litigation the "Crown Attorney" which is the fancy name for the criminal division of the Ontario Ministry of Justice(in the US akin to the Criminal Division of the DOJ or criminal division of a State AG's office), the Constitutional division of the Ontario Ministry of Justice , and the Constitutional division of the Federal Ministry of Justice. Generally the criminal division is supposed to be somewhat insulated from the political determinations of the Minister of Justice while the Constitutional divisions at both levels of govt are far less so and in some sense are more supposed to represent the political preferences of the politicians in power. Now technically if the either Constitutional division was in of itself a party to the litigation in Sullivan in the lower courts they would have have the right of appeal along with the Crown Attorney's office however, in Sullivan I actually don't know which party specifically made the appeal.

This is significant in terms of Anwar in that under the rules of the Ontario Court of Justice the attorneys' representing Anwar were required to make notification to both constitutional divisions of the Ontario and Federal Ministries of Justice that they were bringing a constitutional challenge and either Justice Ministry was entitled to make there own defence of Bill C-36 at trial AND have the right of appeal if they became parties to litigation. While I am not sure of all the details it is my understanding at this point that both Federal and Ontario Ministers' of Justice through there constitutional law divisions opted NOT to make a defense of C-36 separate from that of the Crown Attorney in turn giving them no rights to appeal. In this circumstance my own guess is the SCC will in turn look even less favorably at attempts to overturn Anwar in the future in the OCJ. Basically the Federal govt had there chance to defend the law's constitutionality during the Anwar trial and they choose not to do so.

It interesting to see Conservative MP's criticizing the Trudeau govt for not appealing Anwar after the trial ruling not realizing the Trudeau govt had already opted out of any direct involvement with the case including the right of appeal before trial.

 

[tmmsmyth]

Here is the case that was cited in the article:

2021 ONSC 1628 (CanLII) | R. v. N.S. | CanLII

Access all information related to judgment R. v. N.S., 2021 ONSC 1628 (CanLII) on CanLII.

www.canlii.org

first thoughts - "I do not accept the Crown’s view that Mr. Atchison’s evidence along with the studies and reports provided evidence was biased with a point of view that commercial sex work is like any other forms of labour and should be fully legal."

I always thought that argument that "sex work is work like any other" as fairly specious. It certainly is not like other forms of work insofar as the level of exploitation and economic coercion is present in the market. Advocates would have to contend with several studies that have been conducted which show levels of sex trafficking increases in countries that have decriminalized. It is also different because there are societal norms and attitudes surrounding sex, sexual worth, sexual access, etc that shape the behaviour of both the sellers and purchasers of sexual services that do not exist in other markets where people are selling their services or wares. It's interesting to me that the expert specifically testified he was not of that view, and the Crown tried to say he was to knock down the evidentiary weight of his opinion.

second thoughts - the reasoning for the finding of unconstitutionality for the provisions mentioned in this case are based on narrow hypotheticals based on the infringement of rights of sex workers themselves -- scenarios that have virtually never been prosecuted anyway under the legislation enacted by Bill C-36, making it easy for a motivated government to save the bulk of the legislation by simply expanding the existing exemptions in s. 286.5(1).

third thoughts - the criminalization of clients could be found constitutional if someone charged under it made similar arguments about how it would prevent a sex worker from being able to properly screen.

fourth thoughts - this and the Anwar & Harvey case will still be useful for escort agencies or other non-exploitative third parties being charged under these laws because they can rely on the hypotheticals that infringe sex worker rights - the only parties with a legitimate constitutional argument - to argue that the laws they are being prosecuted under should be of no force or effect. at least until and if the next government decides to re-tweak the exemptions in the current laws to try to save them.

final thoughts - the legal arguments are interesting but they really bear no resemblance to reality and how sex workers generally operate. e.g. the argument that sex workers "aren't able" to screen clients in candid terms due to the laws is simply not true in practice. same thing with the argument that this whole case was decided on - that sex workers "can't" work cooperatively because then they would be benefitting materially from the sale of each other's sexual services, as well as participating in a commercial enterprise that engages in the sale of sexual services. sex workers in practice work together, share rental/advertising/security costs all the time and they are never prosecuted for it. which goes to show how much the making and disassembly of laws are based on fiction.

I think in Canada in particular there are two different sets of laws that need to be understood separately. One is that of criminal law which is a matter under the authority of the Federal govt and the second is that of property and civil rights law that is under the jurisdiction of the provinces. I have always thought that many of the issues of whether "sex work is work like any other" are instead issues far more appropriately dealt with under provincial property and civil rights law. For example there are longstanding rules governing what types of business forms lawyers can practice under i.e. no "for profit" non partnership law firms and for doctors no "for profit" corporate medical practices in Ontario(except for some old grandfathered ones like the Shouldice Clinic that have been in existence for a long time). In areas of prostitution law we seem to be unable to recognize any role for provincial powers over property and civil rights/local works and undertakings instead focusing entirely on criminal law(this is true for all parties in the debate).

An example I might give is that of Switzerland which has largely decriminalized prostitution as a matter of "Federal" criminal law(Switzerland like Canada has a federal level uniform criminal code) but has a large body of varying civil level laws differing by Canton(there equivalent of provinces). Switzerland is actually in interesting case study just generally. Prostitution has been legal since 1942 although the laws around procuring/pandering were only modernized to allow escort agencies to operate without fear of criminal penalties since 1992. Switzerland for much of this time period was surrounded by countries on all sides that criminalized prostitution(Not quite sure about Austria) it is also a VERY wealthy country that also has a lot wealthy people travelling to and from on business related to the banking sector, the intl orgs in Geneva etc. Basically in Geneva you have everything from street prostitution is certain neighborhood to a degree far more publically open than in any place in Canada to ultra high end escort agencies that are far far more expensive than anything in Toronto. Additionally since the mid 1990s citizens of the rest of Europe through Switzerland agreements with the European Union have the right to live and work in Switzerland without a work permit which in turn has caused a huge influx of supply even with all of the traditional sources of demand given the nature of the Swiss economy.