R. v. Skinner, 1990 CanLII 107 (SCC), [1990] 1 SCR 1235
Her Majesty The Queen Appellant
v.
Dorman Thomas Skinner Respondent
and
The Attorney General of Canada, the Attorney General for Ontario, the Attorney General of British Columbia, the Attorney General for Saskatchewan, the Attorney General for Alberta and the Canadian Organization for the Rights of Prostitutes Interveners
indexed as: r. v. skinner
File No.: 20428.
1988: December 1, 2; 1990: May 31.
Present: Dickson C.J. and McIntyre*, Lamer, Wilson, La Forest, L'Heureux‑Dubé and Sopinka JJ.
on appeal from the nova scotia supreme court, appeal division
Constitutional law -- Charter of Rights -- Freedom of expression ‑‑ Criminal Code prohibiting under s. 195.1(1)(c) communications in public for the purpose of prostitution -- Whether s. 195.1(1)(c) of the Code infringes s. 2(b) of the Canadian Charter of Rights and Freedoms -- If so, whether limit imposed by s. 195.1(1)(c) upon s. 2(b) justifiable under s. 1 of the Charter.
Constitutional law -- Charter of Rights -- Freedom of association ‑‑ Criminal Code prohibiting under s. 195.1(1)(c) communications in public for the purpose of prostitution -- Whether s. 195.1(1)(c) of the Code infringes s. 2(d) of the Canadian Charter of Rights and Freedoms.
Criminal law -- Prostitution -- Criminal Code prohibiting under s. 195.1(1)(c) communications in public for the purpose of prostitution ‑‑ Whether s. 195.1(1)(c) of the Code infringes the freedoms of expression and of association guaranteed by ss. 2(b) and 2(d) of the Canadian Charter of Rights and Freedoms.
The respondent was charged with "communicating in a public place for the purpose of obtaining the sexual services of a prostitute" contrary to s. 195.1(1)(c) of the Criminal Code. The trial judge convicted the respondent but the Court of Appeal set aside the conviction holding that s. 195.1(1)(c) infringed the guarantee of freedom of expression in s. 2(b) of the Canadian Charter of Rights and Freedoms, and that s. 195.1(1)(c) was not justifiable under s. 1 of the Charter. The court also suggested that s. 195.1(1)(c) violated the guarantee of freedom of association in s. 2(d) of the Charter. This appeal is to determine whether s. 195.1(1)(c) of the Code infringes s. 2(b) or (d) of the Charter; and, if so, whether s. 195.1(1)(c) is justifiable under s. 1 of the Charter.
Held (Wilson and L'Heureux-Dubé JJ. dissenting): The appeal should be allowed.
Per Dickson C.J. and La Forest and Sopinka JJ.: Section 195.1(1)(c) of the Code does not infringe s. 2(d) of the Charter. In proscribing street solicitation for the purposes of prostitution, s. 195.1(1)(c) attacks expressive activity of a commercial nature. It focuses on the prostitute or customer who stops or communicates with another person in a public place for the purposes of engaging in prostitution. The target of s. 195.1(1)(c), therefore, is expressive conduct and not conduct of an associational nature. The section does not directly proscribe an agreement between two individuals for the exchange of sex for money, nor sexual relations between consenting individuals. The mere fact that an impugned legislative provision limits the possibility of commercial activities or agreements is not sufficient to show a prima facie interference with s. 2(d).
For the reasons given by the Chief Justice in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), s. 195.1(1)(c) of the Code infringes s. 2(b) of the Charter but is justifiable under s. 1 of the Charter.
Per Lamer J.: For the reasons given by the Chief Justice, s. 195.1(1)(c) of the Criminal Code does not infringe s. 2(d) of the Charter. For the reasons I gave in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), s. 195.1(1)(c) of the Code infringes s. 2(b) of the Charter but is justifiable under s. 1 of the Charter.
Per Wilson and L'Heureux-Dubé JJ. (dissenting): For the reasons given by the minority in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), s. 195.1(1)(c) of the Criminal Code infringes the right to freedom of expression guaranteed by s. 2(b) of the Charter and is not saved by s. 1 of the Charter.
Section 195.1(1)(c) of the Code also infringes the right to freedom of association guaranteed by s. 2(d) of the Charter. A provision which prohibits parties from associating with a view to pursuing a lawful common objective infringes s. 2(d), whether that objective is entry into a commercial transaction or some other lawful objective. In considering whether or not a given activity is protected under s. 2(d), the Court must have regard to how that activity is pursued rather than to the nature of the activity. In the present context, prostitutes and potential customers associate when they meet to discuss the sale of sex. That meeting is the form their association takes and this is what s. 2(d) protects, not the activity in which they intend to engage thereafter. So long as it remains lawful to sell sex for money, there is a right to associate with others in order to reach an agreement for this purpose. Section 195.1(1)(c) of the Code, which seeks to prohibit both the meetings and the communications between prostitutes and potential customers, infringes freedom of association as well as freedom of expression. Even if the legislature's purpose in enacting s. 195.1(1)(c) was not to restrict freedom of association, that is clearly the effect of the legislation. Section 195.1(1)(c) interferes directly with a prostitute's ability to associate with potential customers.
Section 195.1(1)(c) is not justifiable under s. 1 of the Charter. While the nuisance caused by street solicitation, at least in the major population centres in Canada, is a pressing and substantial concern warranting a limitation on freedom of association, s. 195.1(1)(c) fails to meet the proportionality test. The measures are rationally connected to the prevention of the nuisance, but s. 195.1(1)(c) is too broad and not sufficiently tailored to the objective. In view of the expansive meaning given to the expression "public place" in s. 195.1(2) of the Code, s. 195.1(1)(c) prevents a prostitute and potential customer from associating in a wide range of circumstances in which no nuisance will result from their meeting together. It is not reasonable to prohibit associational activity that harms no one on the basis that in some circumstances and in some areas a high concentration of that activity may give rise to a public or social nuisance. If such activity is to be prohibited, there must be a much closer nexus between the associational activity that is prohibited and the nuisance to which it is alleged to give rise.
Cases Cited
By Dickson C.J.
Applied: Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 000; referred to: Reference re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 S.C.R. 313; R. v. Stagnitta, [1990] 1 S.C.R. 000.
By Lamer J.
Applied: Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 000; referred to: R. v. Stagnitta, [1990] 1 S.C.R. 000.
By Wilson J. (dissenting)
Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 000; Reference re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 S.C.R. 313; Irvin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927; Reference re Manitoba Language Rights, 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721; Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC), [1988] 2 S.C.R. 712; R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295; R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1, 2(b), (d).
Criminal Code, R.S.C. 1970, c. C‑34, s. 195.1(1)(c) [ad. 1972, c. 13, s. 15; rep. & sub. 1985, c. 50, s. 1], (2) [idem].
Authors Cited
Trotter, Gary T. Annotation (1987), 58 C.R. (3d) 138.
APPEAL from a judgment of the Nova Scotia Supreme Court, Appeal Division (1987), 1987 CanLII 133 (NS CA), 79 N.S.R. (2d) 8, 196 A.P.R. 8, 35 C.C.C. (3d) 202, 58 C.R. (3d) 137, 30 C.R.R. 338, setting aside respondent's conviction on a charge under s. 195.1(1)(c) of the Criminal Code. Appeal allowed, Wilson and L'Heureux-Dubé JJ. dissenting.
Kenneth W. F. Fiske and Robert E. Lutes, for the appellant.
Joel E. Pink, Q.C., and Donald C. Murray, for the respondent.
Graham R. Garton, for the intervener the Attorney General of Canada.
Michael Bernstein, for the intervener the Attorney General for Ontario.
Joseph J. Arvay, Q.C., for the intervener the Attorney General of British Columbia.
Gale Welsh, for the intervener the Attorney General for Saskatchewan.
Richard F. Taylor, for the intervener the Attorney General for Alberta.
Joseph Eliot Magnet, for the intervener the Canadian Organization for the Rights of Prostitutes.
//The Chief Justice//
The judgment of Dickson C.J. and La Forest and Sopinka JJ. was delivered by
Judgment of Dickson C.J.
THE CHIEF JUSTICE -- The respondent, Dorman Thomas Skinner, was charged that he:
. . . at or near Halifax, in the County of Halifax, Nova Scotia, on or about the 2nd day of January, 1986, did unlawfully in a public place communicate with Aileen Richardson for the purpose of obtaining the sexual services of a prostitute, contrary to Section 195.1(1)(c) of the Criminal Code of Canada.
Section 195.1 of the Criminal Code, R.S.C. 1970, c. C-34, reads as follows:
195.1 (1) Every person who in a public place or in any place open to public view
(a)stops or attempts to stop any motor vehicle,
(b)impedes the free flow of pedestrian or vehicular traffic or ingress to or egress from premises adjacent to that place, or
(c)stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person
for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction.
(2) In this section, "public place" includes any place to which the public have access as of right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view.
Section 2 of the Canadian Charter of Rights and Freedoms guarantees that everyone has, among others, the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(d) freedom of association.
Section 1 of the Charter provides that:
- The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
On the evening of Thursday, January 2, 1986, Constable Aileen Richardson, a member of the Morality Squad of the Halifax Police Department, was working in an undercover capacity in the area of Cornwallis Park in the city of Halifax, posing as a prostitute. Constable Richardson dressed in slacks and a fur coat, was strolling back and forth on the sidewalk adjacent to the park. Seated in an unmarked police cruiser parked nearby were Sergeant Ronald Mosher, the head of the Morality Squad, and Constable Bill MacLeod. Constable Richardson was fitted with a body pack voice recording device. Any conversations Constable Richardson engaged in could be heard by Sergeant Mosher in the police cruiser. At approximately 10:25 p.m., the respondent, a resident of Dartmouth, walked across Hollis Street from the area of the Nova Scotian Hotel and approached Constable Richardson. They exchanged greetings. The respondent walked past Constable Richardson a distance of approximately twelve feet, stopped, and walked back to her. As they strolled side by side on the sidewalk, Skinner and Richardson engaged in the following conversation:
S.: How much do you charge?
R.: For what?
S.: For a blow job. [fellatio]
R.: What do you have?
S.:Ooh, you charge by how much the person has. Do you have a place?
R.: No.
S.: Where do you live?
R.: Not close to here.
S.: Well, how much do you charge for a blow job?
At this point, Constable Richardson turned and walked away from the respondent. Sergeant Mosher and Constable MacLeod pulled up to the curb in the police cruiser and got out. Sergeant Mosher advised the respondent that he was under arrest, told him the reason for the arrest, and advised him of his right to counsel.
In Nova Scotia Provincial Court, the respondent pleaded not guilty and, as his defence, challenged the constitutional validity of s. 195.1(1)(c) of the Criminal Code. He argued that the provision violated the freedoms of expression and association declared in s. 2 of the Charter. The respondent was convicted and sentenced to a fine of $100 and, in default, to imprisonment for ten days.
The respondent appealed to the Nova Scotia Court of Appeal. MacKeigan J.A. (Clarke C.J.N.S. and Pace J.A. concurring), found that s. 195.1(1)(c), in prohibiting an expressive economic message, constituted a prima facie violation of s. 2(b) of the Charter: (1987), 1987 CanLII 133 (NS CA), 79 N.S.R. (2d) 8. The s. 2(d) issue did not receive extensive consideration. However, MacKeigan J.A. did suggest that s. 195.1(1)(c) also violated s. 2(d), at p. 15:
Section 195.1 would similarly appear to offend s. 2(d) of the Charter (Freedom of Association) inhibiting the free association of prostitute and customer; does not s. 2(d) protect sexual association between consenting adults -- whether the consent is freely given or paid for?
The majority of the Court of Appeal then went on to find that the impugned provision could not be upheld under s. 1 of the Charter. Section 195.1(1)(c) was accordingly declared of no force or effect.
Jones J.A., in dissent in the Court of Appeal, found that the impugned provision violated neither the fundamental guarantee of freedom of expression under s. 2(b) nor that of freedom of association under s. 2(d).
This Court granted leave to appeal, [1987] 2 S.C.R. ix, and stated three constitutional questions quoted at the conclusion of these reasons. The Attorneys General of Canada, British Columbia, Alberta, Saskatchewan, and Ontario were granted leave to intervene, as was the Canadian Organization for the Rights of Prostitutes. The case was heard together with Reference re ss. 193 and 195(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 000, and R. v. Stagnitta, [1990] 1 S.C.R. 000. The respondent in this case challenges s. 195.1(1)(c) of the Criminal Code as constituting a violation of both s. 2(b) and s. 2(d) of the Charter. The challenge under the s. 2(b) guarantee of freedom of expression is addressed by the Court in the reasons given in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), released concurrently. The challenge to the impugned legislative provision under the s. 2(d) guarantee of freedom of association is unique to this appeal.
Before this Court, however, very little emphasis was put on the s. 2(d) challenge. The arguments put forward to challenge s. 195.1(1)(c) under s. 2(d) were largely secondary to and dependent on those challenging the provision under the s. 2(b) guarantee of freedom of expression.
The appellant submits that as the impugned provision proscribes "street prostitution" rather than sexual association between consenting adults, s. 2(d) is not infringed. In other words, it is the appellant's contention that s. 2(d) Charter protection does not extend to one-on-one bargaining between a prostitute and a customer in public. The appellant refers to Trotter's annotation to the Court of Appeal reasons in this case reported in 1987 CanLII 133 (NS CA), 58 C.R. (3d) 137, which found that the majority judgment erred in its s. 2(d) analysis (at p. 139):
The issue is not whether it is permissible for one person to pay another for sex, but whether one is guaranteed the right to impede the flow of pedestrian and vehicular traffic for the purposes of entering into that form of association.
In sum, it is the appellant's submission that "[t]he scope of the freedom rests on a much higher plane", and that s. 2(d) of the Charter has nothing to do with s. 195.1(1)(c) of the Code.
In reply, the respondent argues that s. 195.1(1)(c) prohibits individuals with a mutual desire to engage in prostitution from making contact with each other through communication in a public place. The provision thereby attacks an individual's underlying motive or rationale for being in association with another individual. Sexual activity is not prohibited, and it is argued, therefore, that the scope of s. 2(d) must be wide enough to protect the association of individuals for the purpose of engaging in sexual relations.
In Reference re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 S.C.R. 313, this Court undertook a full review of the historical origins and constitutional scope of freedom of association. I find it unnecessary to repeat here the purposes and meaning of the s. 2(d) Charter guarantee explored in the judgments in that case. I will only say that the offer of a service by a prostitute, or the request for that service by the prostitute's customer clearly falls beyond the ambit of any definition of freedom of association considered in Reference re Public Service Employee Relations Act (Alta.) In the context of the impugned legislation which criminalizes street solicitation for the purposes of prostitution, I intend to avoid any unnecessary delineation of the scope of freedom of association.
I am unable to find any persuasive argument presented before this Court for finding that the respondent's s. 2(d) freedom is infringed by the impugned legislative provision. The starting point for an assessment of the s. 2(d) challenge in this case is an inquiry into the essence of the offence. The nature of the activity to which the legislation is directed is communicating in a public place for the purposes of engaging in prostitution. It is of course true that such communication or solicitation is aimed at either a prostitute or a potential customer and that the expressive activity is meant to lead to an exchange of sex for money. That exchange or sale requires the involvement of another party, and contemplates as the final objective the "association" of the individuals in some form of sexual activity.
The target of the impugned legislation, however, is expressive conduct. In proscribing street solicitation for the purposes of prostitution, the provision attacks expressive activity of a commercial nature. It focuses on the prostitute or customer who stops or communicates with another person in a public place for the purposes of engaging in prostitution. In contrast, it does not attack conduct of an associational nature. In answer to the respondent's assertion that such an attack is to be found in the legislation's interference with an agreement between two individuals for the exchange of sex for money and with sexual relations between consenting individuals, I fail to find that the impugned provision directly proscribes either activity. I find it unnecessary to decide whether the exercise of either activity would be protected by s. 2(d) if it were to be the target of the legislation.
The Attorney General of Canada makes the following submission with which I am in agreement:
The Respondent asserts that s. 195.1(1)(c) of the Criminal Code infringes the freedom of association since it prohibits individuals "from making contact with others through words, acts, gestures, or mere presence in public places". It is respectfully submitted that the challenged provision does not, on any rational construction, purport to reach "mere presence in public", and that the gravamen of the complaint is therefore that s. 195.1(1)(c) interferes with communications by word or deed. That is an issue which falls squarely under the guarantee of freedom of expression in s. 2(b) of the Charter and which ought appropriately to be resolved there.
It might be said that as the limitation on freedom of expression to be found in s. 195.1(1)(c) also has the effect of limiting association, the impugned section should be held to violate s. 2(d) as well as s. 2(b). In my view, however, an analysis of the effects of s. 195.1(1)(c) on freedom of association does not advance the respondent's case. Most limitations on expression have the effect of limiting the possibilities for human association. It is certainly the case that all limitations on commercial expression will have the effect of limiting the possibilities for commercial transactions. I do not find convincing the argument that freedom of association is infringed by s. 195.1(1)(c) because that provision has the effect of making it more difficult for individuals to transact commercial bargains for the sale of sex. The mere fact that an impugned legislative provision limits the possibility of commercial activities or agreements is not, in my view, sufficient to show a prima facie interference with the s. 2(d) guarantee of freedom of association. The primary focus of the constitutional challenge advanced in this case was on the s. 2(b) guarantee of freedom of expression and in my view, given the nature of the impugned legislative provision, the respondent must succeed or fail on the basis of the s. 2(b) challenge.
I conclude that s. 195.1(1)(c) does not constitute a prima facie infringement of the s. 2(d) freedom of association guaranteed by the Charter. I emphasize the fact that I come to this conclusion based on the characteristics of the specific legislative provision being challenged here and the nature of the proscribed activity. As this Court has made clear many times, the scope of any Charter guarantee must be delineated on a case-by-case basis.
This Court has found that the impugned provision does constitute a prima facie infringement of s. 2(b) freedom of expression for the reasons given in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.) In my reasons in that Reference, I found that infringement to be justifiable under s. 1, and I adopt those reasons and conclusion in this appeal.
I would accordingly allow the appeal, set aside the order of the Appeal Division of the Supreme Court of Nova Scotia and restore the conviction entered and sentence imposed by the Provincial Court judge.
I would answer the constitutional questions as follows:
Question 1.Does s. 195.1(1)(c) of the Criminal Code, R.S.C. 1970, c. C-34, as amended, infringe the freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms?
Answer Yes.
Question 2.Does s. 195.1(1)(c) of the Criminal Code, R.S.C. 1970, c. C-34, as amended, infringe the freedom of association guaranteed by s. 2(d) of the Canadian Charter of Rights and Freedoms?
Answer No.
Question 3.If s. 195.1(1)(c) of the Criminal Code infringes rights guaranteed by s. 2(b) or s. 2(d) of the Canadian Charter of Rights and Freedoms, is s. 195.1(1)(c) justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?
AnswerYes, as pertains to the infringement of s. 2(b). There is no need to answer this question with respect to s. 2(d).
//Lamer J.//
The following are the reasons delivered by
Reasons of Lamer J.
LAMER J. -- This appeal deals mainly with similar issues as those raised in the companion cases of Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 000, and R. v. Stagnitta, [1990] 1 S.C.R. 000, released concurrently. In short, this appeal deals specifically with s. 195.1(1)(c) of the Criminal Code, R.S.C. 1970, c. C-34, and whether it restricts freedom of expression and association as guaranteed by s. 2(b) and (d) of the Canadian Charter of Rights and Freedoms. I set out the constitutional questions stated for this appeal by order of the Chief Justice:
1.Does s. 195.1(1)(c) of the Criminal Code, R.S.C. 1970, c. C-34, as amended, infringe the freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms?
2.Does s. 195.1(1)(c) of the Criminal Code, R.S.C. 1970, c. C-34, as amended, infringe the freedom of association guaranteed by s. 2(d) of the Canadian Charter of Rights and Freedoms?
3.If s. 195.1(1)(c) of the Criminal Code infringes rights guaranteed by s. 2(b) or s. 2(d) of the Canadian Charter of Rights and Freedoms, is s. 195.1(1)(c) justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?
The Chief Justice has set out the facts and procedural history of this appeal and I need not, therefore, repeat them here. For the reasons I have given in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), supra, I am of the view that s. 195.1(1)(c) of the Criminal Code does restrict freedom of expression protected by s. 2(b) of the Charter, but that the legislation is a reasonable and demonstrably justified limit on that freedom under s. 1 of the Charter.
There remains then, the issue of whether the impugned section of the Criminal Code restricts freedom of association as guaranteed by s. 2(d) of the Charter. In this regard, I am in agreement with the analysis of the Chief Justice in his reasons for judgment in this appeal.
I would, accordingly, answer the constitutional questions as follows:
Yes.
No.
Yes, the restriction on s. 2(b) of the Charter is justified by s. 1. The question does not have to be answered in respect of s. 2(d) of the Charter.
Therefore, the appeal is allowed.
//Wilson J.//
The reasons of Wilson and L'Heureux-Dubé JJ. were delivered by
Reasons of Wilson J. (Dissenting)
WILSON J. (dissenting) -- For the reasons set out in my judgment in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 000, it is my view that s. 195.1(1)(c) of the Criminal Code, R.S.C. 1970, c. C-34, infringes the right to freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms and is not saved by s. 1 of the Charter.
I have had the benefit of reading the Chief Justice's reasons with respect to whether s. 195.1(1)(c) of the Code also infringes the right to freedom of association guaranteed by s. 2(d) of the Charter. The Chief Justice concludes that it does not. In his view, the provision does not interfere with conduct of an associational nature; it focuses rather on communication between the prostitute and the potential customer. I cannot agree with the Chief Justice. I cannot see these as mutually exclusive and believe that the same conduct can constitute an infringement of both sections. Nor do I think that the Chief Justice's conclusion is mandated by the majority decision in Reference re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 S.C.R. 313.
Freedom of Association
In Reference re Public Service Employee Relations Act (Alta.), supra, McIntyre J. had occasion to review several approaches to freedom of association. After rejecting a number of them he stated at p. 406:
The purpose of freedom of association is to ensure that various goals may be pursued in common as well as individually. Freedom of association is not concerned with the particular activities or goals themselves; it is concerned with how activities or goals may be pursued. [Emphasis added.]
He went on to observe at p. 407:
Of the remaining approaches, it must surely be accepted that the concept of freedom of association includes at least the right to join with others in lawful, common pursuits and to establish and maintain organizations and associations as set out in the first approach. This is essentially the freedom of association enjoyed prior to the adoption of the Charter. It is, I believe, equally clear that, in accordance with the second approach, freedom of association should guarantee the collective exercise of constitutional rights. Individual rights protected by the Constitution do not lose that protection when exercised in common with others. People must be free to engage collectively in those activities which are constitutionally protected for each individual. [Emphasis added.]
Le Dain J. (Beetz and La Forest JJ. concurring) agreed with McIntyre J.'s disposition of the appeal, stating at p. 391:
Freedom of association is particularly important for the exercise of other fundamental freedoms, such as freedom of expression and freedom of conscience and religion.
In my view, McIntyre and Le Dain JJ.'s observations stand for at least three propositions. First, a purposive reading of s. 2(d) entails that at the very least freedom of association protects a person's right to join with others in lawful common pursuits. The right to freedom of association is in no way limited to the right to create and belong to an association. A large and liberal interpretation of the provision requires that it be read so as to protect a person's ability to associate with others regardless of whether or not the association is taking place with a view to forming an "association" in the technical sense.
Second, in deciding whether a given activity is protected by s. 2(d) of the Charter, the focus must be on whether one person seeks to associate with another, not on the nature of the activities or goals that they wish to pursue in common. The actual activities the individuals wish to pursue in common are not, according to the majority in that case, protected by s. 2(d). Only the coming together is protected. In this respect McIntyre J.'s observations are consistent with the approach this Court has taken to other freedoms embodied in s. 2 of the Charter. Just as this Court made clear in Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, at p. 969, that it could not "exclude human activity from the scope of guaranteed free expression on the basis of the content or meaning being conveyed", so too it is important not to exclude human activity from the scope of guaranteed free association on the basis of the purpose for which the parties seek to associate.
Third, freedom of association will, as Le Dain J. pointed out, often be of importance precisely because it is integrally linked to a person's ability to exercise other constitutionally protected rights. In a wide range of instances the freedoms guaranteed in s. 2 of the Charter would be of little value if one could not engage in them with others. For example, a person's right to freedom of expression would be of little value if the state could control those with whom that person could communicate. If, as this Court suggested in Reference re Manitoba Language Rights, 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721, at p. 744, language and expression are important because they bridge the gap between isolation and community, then a right that protects expressive activity would be of little value if the state could deprive a person of the community with which he or she wishes to communicate. In many instances, the freedoms enshrined in s. 2 of the Charter, while separate and distinct, will be mutually reinforcing.
In the context of this appeal, the most basic aspect of the right to freedom of association is engaged, namely the ability of one person to associate with another for the pursuit of a common goal. While the Chief Justice perceives the proposed sexual activity between the prostitute and his or her customer as the association in issue, it is my view that the association we should be addressing is the association of the parties to discuss the possibility of providing or obtaining a sexual service. The parties may never in fact engage in sexual activity. They will nonetheless have associated in order to pursue a common goal, namely to negotiate a commercial transaction. I believe that a provision which prohibits parties from associating with a view to pursuing a lawful common objective infringes s. 2(d) of the Charter, whether that objective is entry into a commercial transaction or some other lawful objective.
I see no reason for excluding associational activity with a commercial purpose from the ambit of the term "association" in s. 2(d) of the Charter. If we are to treat seriously McIntyre J.'s observation that in considering whether or not a given activity is protected under s. 2(d) we must have regard to how that activity is pursued (i.e. in that case by means of association through the union) rather than to the nature of the activity (i.e. in that case collective bargaining), then it is important to recognize that a prostitute and his or her customer associate when they meet to discuss the sale of sex. That meeting is the form their association takes and, according to McIntyre J., this is what s. 2(d) protects, not the activity in which they intend to engage thereafter. The prostitute or customer who relies on s. 2(d) of the Charter is not claiming that prostitution is constitutionally protected by this provision. He or she is simply advancing the proposition that, so long as it remains lawful to sell sex for money, there is a right to associate with others, i.e. potential customers, in order to reach an agreement for this purpose.
In other words, it is the fact that the parties to this transaction associate that is relevant to a s. 2(d) analysis, not the fact that the reason for which they associate is to effect a commercial transaction in which sex is ultimately exchanged for money. This Court made clear in Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC), [1988] 2 S.C.R. 712, at pp. 766-67, that given "the earlier pronouncements of this Court to the effect that the rights and freedoms guaranteed in the Canadian Charter should be given a large and liberal interpretation, there is no sound basis on which commercial expression can be excluded from the protection of s. 2(b) of the Charter". It seems to me that this logic also holds good for s. 2(d) of the Charter. Just as this Court was not prepared to make a moral judgment on the expressive activity in deciding whether or not it was protected by s. 2(b) of the Charter, so too it should avoid the temptation to make a moral judgment in deciding whether or not associational activity is protected by s. 2(d).
I turn now to consider whether s. 195.1(1)(c) of the Code violates s. 2(d) of the Charter.
Is the Purpose or Effect of s. 195.1(1)(c) to Restrict Freedom of Association?
Is the Purpose or Effect of s. 195.1(1)(c) to Restrict Freedom of Association?
With great respect to the Chief Justice, the possibility that legislation violates more than one section of the Charter is a real one even although its "target" appears to be more specifically directed to conduct dealt with in one section. The legislature may have intended to restrict only one constitutionally protected right but its legislation may in fact have the effect of restricting two Charter rights. One must look to both purpose and effect. The Chief Justice has affirmed this on a number of occasions. In R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, Dickson J. (as he then was) observed at p. 331:
In my view, both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation.
And at p. 334 he said:
Thus, if a law with a valid purpose interferes by its impact, with rights or freedoms, a litigant could still argue the effects of the legislation as a means to defeat its applicability and possibly its validity.
The Chief Justice, Lamer J. and I reiterated these observations in Irwin Toy Ltd. v. Quebec (Attorney General), supra, at p. 976. Dealing with s. 2(b) of the Charter, we said:
Even if the government's purpose was not to control or restrict attempts to convey a meaning, the Court must still decide whether the effect of the government action was to restrict the plaintiff's free expression. Here, the burden is on the plaintiff to demonstrate that such an effect occurred. In order so to demonstrate, a plaintiff must state her claim with reference to the principles and values underlying the freedom.
In my view, Dickson J.'s observations in Big M Drug Mart Ltd. are as relevant to an analysis of s. 2(d) of the Charter as they were to the analysis of s. 2(b) advanced in Irwin Toy. Thus, the Court must first consider whether the purpose of the impugned provision is to restrict freedom of association. If it concludes that the government's purpose was not to restrict freedom of association, then it must still decide whether the effect of the legislation is to restrict freedom of association.
a. Purpose
Purpose
In my view, it is far from obvious that the impugned provision does not seek to prohibit certain kinds of associational activity as well as certain kinds of expressive activity. Section 195.1(1)(c) of the Code states:
195.1 (1) Every person who in a public place or in any place open to public view
(c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person
for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction. [Emphasis added.]
The provision is not limited to prohibiting expressive activity. It also seeks to prohibit efforts to stop someone in a public place for the purpose of negotiating a purchase or sale of sexual services. It interferes directly with a prostitute's ability to associate with potential customers and vice versa. Thus, in addressing the social nuisance that arises from the public display of the sale of sex, the legislature has chosen to prohibit both meetings between prostitutes and potential customers and communications between prostitutes and potential customers. They can neither associate with each other or talk to each other in a public place or a place open to public view. No doubt the legislature adopted this two‑pronged approach in the belief that this would prove effective in bringing to an end the social nuisance arising from the public display of the sale of sex. Indeed, given that the legislature was concerned to deal with the social nuisance accompanying the concentration of street solicitation, it is not altogether surprising that the legislature would seek to prevent prostitutes and potential customers from associating in public places as well as making their "deals" in public places. But the end result in my opinion is that the provision not only infringes the right to freedom of expression, it also infringes the right to freedom of association.
b. Effect
Effect
However, if I am in error in thinking that the legislature's purpose was to restrict freedom of association as well as freedom of expression, I believe that this is its effect. In limiting the circumstances in which a prostitute may communicate with a potential customer to situations in which they are not in a public place or a place open to public view, the impugned provision has the effect of placing serious restrictions on their freedom to associate. As section 195.1(2) makes clear, persons who wish to meet in order to discuss the sale of sexual services are not only excluded from any public place or place open to public view, they may not get together in "any place to which the public have access as of right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view".
While it would be my view that one of the purposes of s. 195.1(1)(c) is to restrict the circumstances in which prostitute and potential customer may meet or associate with a view to negotiating a sale of sexual services, even if that is not its purpose it clearly in my view is its effect. As a result, s. 195.1(1)(c) infringes the right to freedom of association and must be justified, if it is to survive the Charter challenge, as a reasonable limit under s. 1 of the Charter.
Section 1 of the Charter
In Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), supra, I emphasized that in assessing whether legislation constitutes a reasonable limit that is justifiable under s. 1 of the Charter one must always have regard to the right that has been violated. It is therefore important that the government justify the infringement of s. 2(d) of the Charter as well as its infringement of s. 2(b).
In this case, however, the appellant and each of the Attorneys General made the same submissions in support of s. 195.1(1)(c) as a reasonable limit on s. 2(d) as they made in its support as a reasonable limit on s. 2(b).
I agree that the nuisance caused by street solicitation, at least in the major centres of population in Canada, is a pressing and substantial concern that satisfies the first branch of the test set out in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103. Also I agree that s. 195.1(1)(c) is rationally connected to the prevention of the nuisance. As I observed in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), supra, "[t]he logical way to prevent the public display of the sale of sex and any harmful consequences that flow from it is through the twofold step of prohibiting the prostitute from soliciting prospective customers in places open to public view and prohibiting the customer from propositioning the prostitute likewise in places open to public view" (p. 000).
This brings us to the test of proportionality. The question here is whether it is reasonable and justifiable to limit freedom of association in the manner that s. 195.1(1)(c) has done in order to deal with the nuisance caused by street solicitation. In my view, it is not. Section 195.1(1)(c) prevents a prostitute and potential customer from associating in a wide range of circumstances in which no nuisance will result from their meeting together. Because of the remarkably expansive meaning given to "public place" in s. 195.1(2) of the Code, the proscribed meeting will constitute a criminal offence even although it takes place in a secluded area where there is no one present to see it let alone be offended by it. In my view, it is not reasonable to prohibit associational activity that harms no one on the basis that in some circumstances and in some areas a high concentration of that activity may give rise to a public or social nuisance. If such activity is to be prohibited, there must be a much closer nexus between the associational activity that is prohibited and the nuisance to which it is alleged to give rise. The section is simply too broad. The Crown, in my view, should have to show as a minimum that the associational activity in a given case is likely to give rise to the undesired consequences. As it stands, s. 195.1(1)(c) fails to meet the proportionality test set out in Oakes.
I would dismiss the appeal. I would answer the constitutional questions as follows:
Question1.Does s. 195.1(1)(c) of the Criminal Code, R.S.C. 1970, c. C-34, as amended, infringe the freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms?
AnswerYes.
Question2.Does s. 195.1(1)(c) of the Criminal Code, R.S.C. 1970, c. C-34, as amended, infringe the freedom of association guaranteed by s. 2(d) of the Canadian Charter of Rights and Freedoms?
AnswerYes.
Question3.If s. 195.1(1)(c) of the Criminal Code infringes rights guaranteed by s. 2(b) or s. 2(d) of the Canadian Charter of Rights and Freedoms, is s. 195.1(1)(c) justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?
AnswerNo.
Appeal allowed, WILSON and L'HEUREUX-DUBÉ JJ. dissenting.
Solicitor for the appellant: The Attorney General of Nova Scotia, Halifax.
Solicitors for the respondent: Stewart, MacKeen & Covert, Halifax.
Solicitor for the intervener the Attorney General of Canada: John C. Tait, Ottawa.
Solicitor for the intervener the Attorney General for Ontario: The Ministry of the Attorney General, Toronto.
Solicitor for the intervener the Attorney General of British Columbia: The Ministry of the Attorney General, Victoria.
Solicitor for the intervener the Attorney General for Saskatchewan: The Attorney General for Saskatchewan, Regina.
Solicitor for the intervener the Attorney General for Alberta: The Attorney General for Alberta, Edmonton.
Solicitor for the intervener the Canadian Organization for the Rights of Prostitutes: Joseph Eliot Magnet, Ottawa.
*McIntyre J. took no part in the judgment.
