WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4 of the Criminal Code:

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347;

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court File and Parties

NEWMARKET COURT FILE NO.: CR-17-009179-00 DATE: 20210421

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen Respondent

– and –

N.S. Applicant/Defendant

Counsel: Kellie Hutchinson, for the Respondent/Provincial Crown Carlos Rippell, for the Applicant/Defendant

HEARD: in writing

REASONS ON REMEDY PER SECTION 52 OF THE CHARTER

RESTRICTION ON PUBLICATION The publication and broadcast of this ruling is banned pursuant to subsection 486.4 and subsection 517 of the Criminal Code of Canada. [For clarity, counsel is permitted to circulate the reason to other counsel or use in court. Publication and quotation of general principles from the reasons in this case is permitted. Publication is prohibited of any facts about the defendant’s charges and identifying information about the defendant or his personal circumstances.]

SUTHERLAND J.:

Introduction

[1] On March 4, 2021, the Court released a decision on the applicant’s constitutional challenge to sections 286.2, 286.3(1) and 286.4 of the Criminal Code. The Court found that the impugned sections violated section 7 of the Charter and were not saved by section 1 of the Charter.

[2] After the application was heard, the Supreme Court of Canada rendered its decision of Ontario (Attorney General) v. G.[^1]

[3] Given the Supreme Court of Canada decision, the Court requested that the applicant and Crown provide written submissions on remedy.

[4] The written submissions have been received and below is the Court’s decision on remedy.

[5] In brief, the Court is declaring that the impugned sections of the Criminal Code are inconsistent with section 7 of the Charter and are therefore of no force and effect. This declaration of invalidity takes effect immediately.

Ontario (Attorney General) v. G

[6] In Ontario (Attorney General) v. G, the Supreme Court of Canada provided lower courts with direction on how to determine the appropriate remedy in constitutional challenges to legislation.

[7] Section 52(1) of the Constitution Act, 1982 states that the Constitution is the supreme law of Canada and that “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”

[8] However, section 52(1) “does not explicitly provide courts with a grant of remedial jurisdiction. A general declaration pursuant to the courts’ statutory or inherent jurisdiction is the means by which they give full effect to the broad terms of s. 52(1).”[^2]

[9] Justice Karakatsanis, speaking for the majority, stated that different types of remedies can be granted “because the circumstances may implicate general remedial principles in different ways.”[^3] The twin guiding principles of respect for the legislature’s role and the purpose of the Charter play a “key role” in determining the type of remedy that should be ordered.[^4]

[10] The first step in crafting an appropriate remedy is ascertaining “the extent of the legislation’s inconsistency with the Constitution.”[^5]

[11] The second step “is determining the form that a declaration should take.”[^6] The form of the remedy could be a full declaration of invalidity, reading down or reading in the legislation and severance.

[12] Reading down “is when a court limits the reach of legislation by declaring it to be of no force and effect to a precisely defined extent.”[^7]

[13] Reading in is “when a court broadens the grasp of the legislation by declaring an implied limitation on its scope to be without force or effect.”[^8]

[14] Severance “is when a court declares certain words to be of no force or effect, thereby achieving the same effects as reading down or reading in, depending on whether the severed portion serves to limit or broaden the legislation’s reach.”[^9]

[15] Reading down is appropriate when the court is able to and can define the offending portion in a limited manner. Reading in is appropriate when the inconsistency with the Constitution can be defined as to what the offending legislation wrongly excludes rather than wrongly includes. Severance is appropriate “where the offending portion is set out explicitly in the words of the legislation.”[^10]

[16] These forms of remedies provide the court with the flexibility required to craft an appropriate solution to a constitutional violation.[^11]

[17] However, the court must remain mindful that in the wrong circumstances these “tailored remedies can intrude on the legislative sphere.”[^12] Thus, the “tailored remedies” should only be granted where a court fairly concludes that the legislature would have passed the constitutionally sound legislation without the unsound constitutional part and “where it is possible to precisely define the unconstitutional aspect of the law.”[^13]

[18] Justice Karakatsanis summarized how courts should balance the constitutional supremacy embodied in section 52(1) and the public’s benefit of legislation enacted in our democratic system:

…To respect the differing roles of the courts and legislatures foundational to our constitutional architecture, determining whether to strike down legislation in its entirety or to instead grant a tailored remedy of reading in, reading down or severance, depends on whether the legislature’s intention was such that a court can fairly conclude it would have enacted the law as modified by the court. This requires the court to determine whether the law’s overall purpose can be achieved without violating rights. If a tailored remedy can be granted without the court intruding on the role of the legislature, such a remedy will preserve a law’s constitutionally compliant effect along with the benefit that the law provides to the public. The rule of law is thus served both by ensuring that legislation complies with the Constitution and by securing the public benefits of laws where possible.[^14]

[19] The majority then turned to the issue of suspending the effect of section 52(1) declarations. The government bears the onus of demonstrating that a compelling public interest supports a suspension. In determining whether to exercise the remedial discretion to suspend a declaration of invalidity, the court needs to consider whether and to what extent the government has demonstrated that an immediately effective declaration will limit the effect of the legislature’s ability to set policy.[^15] This will require a principled balancing approach. This balancing approach permits courts to “engage with the underlying principles and ensure that a delayed declaration is not ordered unless there are compelling reasons to do so. The appropriate balance will result in suspensions only in rare circumstances.”[^16]

[20] In addition, in determining whether to suspend a declaration of invalidity, the court must also determine the length of the suspension. The onus to determine the appropriate length of time is on the government. There is no default length of time, such as 12 months.[^17] A suspension should not be granted “unless the government demonstrates that an immediately effective declaration would endanger a compelling public interest that outweighs the importance of immediate constitutional compliance and an immediate effective remedy for those whose Charter rights will be violated.”[^18]

[21] I will turn to the positions of the applicant and Crown.

Positions of the Applicant and the Crown

The Applicant

[22] The applicant argues that the Court should declare the impugned provision of no force and effect with no suspension of the declaration. The applicant argues that the violation is substantial and significant. There is no compelling reason to suspend the declaration and strong policy reasons for an immediate declaration of invalidity. Leaving an unconstitutional law on the books leads to legal uncertainty and instability; particularly in a criminal context that requires multiple actors—the police, the Crown, the public—to conduct themselves in certain ways. The applicant contends that this case is not one of those rare occasions where an immediate declaration of invalidity would endanger a public interest of such importance so as to justify a suspension of such a declaration. The provisions in the Criminal Code concerning profiting from commercial sex trade if a participant is a minor, or human trafficking and exploitation, are not affected and remain prosecutorial offences. A declaration of immediate invalidity, the applicant argues, is aligned with the new principled balanced approach developed by the Supreme Court in Ontario (Attorney General) v. G and this Court should declare the impugned sections invalid and of no force and effect immediately.

The Crown

[23] The Crown urges the Court to take a tailored approach to the impugned sections. The Crown argues that the Court can read in, read down or sever unconstitutional provisions to allow for a critical and valid public policy law to continue. It is imperative that the intentions of Parliament to reduce the demand for sexual service, and to denounce and prohibit the exploitation of sex workers by third parties, continue in a constitutional manner, and the Court can achieve this critical end by utilizing a tailored remedy.

[24] Furthermore, the Crown contends that if the Court decides that a tailored remedy is not appropriate, then the Court should suspend any declaration of invalidity. The Crown agrees that it bears the onus of persuading the Court to suspend the declaration. The Crown argues that a one-year suspension is appropriate to give Parliament time to enact legislation to cure the constitutional invalidity. The Crown contends that because commercial sex workers are often vulnerable, “they are reluctant to come forward and report to police those who exploit them, which makes the on-sex offences in the Criminal Code that could provide a measure of protection in this context, such as the Trafficking in Persons offence, difficult to prove. The s. 286.2 offence is easier to prove as it can be proven without the seller.”[^19]

[25] The sex trade offences in ss. 286.1-286.4 are critical to the protection of a vulnerable group of commercial sex workers; though not all commercial sex workers are vulnerable, there are many that are. A suspension of the declaration will permit Parliament the time to remedy any constitutional invalidity while at the same time providing protection to vulnerable commercial sex workers. This strikes the right balance between the Charter and the public’s interests.

[26] In addition, the Crown submits that in considering whether to grant an exemption to the applicant, “ the court must consider whether and to what degree granting an exemption in the applicant’s circumstances would undermine the interest motivating the suspension in the first place.”[^20] Public safety would be endangered if an exemption to the applicant was provided. Granting an exemption would be contrary to the reasons for the suspension of a declaration of invalidity, namely public safety. If the exemption is not given, the Crown indicates that the evidence led at trial would not be enough to warrant a conviction if the applicant only stands charged on the Trafficking in Person offence. However, the same evidence may be enough to support a conviction for the offences under ss. 286.2, 286.3 and 286.4.

[27] In these circumstances, hypotheticals were used, and the actual facts of the offences were not. The applicant’s own Charter rights were not violated. An exemption to the applicant is not warranted and should not be provided.

[28] I will turn to the analysis utilizing the two-stage process instructed by the majority in Ontario (Attorney General) v. G.

Analysis

What is the extent of the impugned sections’ inconsistency with the Constitution?

[29] The impugned sections are a complicated intertwined scheme of criminalizing the purchase of commercial sexual services. As indicated in my earlier decision where I found that the impugned sections infringed section 7 of the Charter, the sections relate to each other through a scheme of exceptions, exceptions to the exceptions and immunity. This scheme attempts to immunize commercial sex workers from criminality for the selling of their own sex work and in abiding and abetting a purchaser in obtaining a sex worker’s own sexual services.[^21]

[30] This Court found that when taking into consideration the exception to the exceptions and immunity, sections 286.2 and 286.3 prevent a sex worker from assisting other sex workers, or from working in a cooperative scheme where commercial sex workers share the costs and expenses of their individual commercial sex work enterprise. The sharing of such costs and expenses contributes to the financial benefit of individual sex workers, from income derived not solely from their individual commercial sex work. In such situations, the individual commercial sex worker no longer has immunity and no longer falls within the exceptions to the exceptions. The commercial sex worker is liable to prosecution and is prohibited from taking steps for their safety and health, as envisaged by the Supreme Court of Canada in R. v. Bedford.[^22]

[31] With respect to section 286.4, the extent of the infringement is far broader. The provision prohibits a third party from advertising commercial sex work. The prohibition impedes a commercial sex worker in advertising their sale of commercial sex work, which is not an illegal activity. As I have explained in more detail in my original decision, and again in the paragraphs below, this results in restricting and prohibiting a commercial sex worker from taking steps to protect their health and safety. This form of prohibition is similar to what was the constitutional invalidity in Bedford.

[32] The extent of the constitutional inconsistency of sections 286.2 and 286.3 is narrower than that in section 286.4.

What is the form a declaration should take?

[33] The Crown urges the Court to use a tailored remedy to alter the impugned provision, and to make the impugned provision constitutionally valid.

[34] With respect to section 286.4, a tailored remedy could not make this provision constitutionally valid. The provision is broad and prevents anyone, except an individual sex worker, from advertising. Any third party, be it a web designer, web site provider, newspaper, or magazine that knows that the purpose of the advertisement is for commercial sex work would be open to criminal prosecution. The Court rejects the submissions of the Crown that a tailored remedy of reading in an expansion of the immunity to include cooperatives between sex workers would resolve the invalidity. without the Court in effect re-writing the provision. The changes required to make this provision constitutionally valid, in the court’s view, is extensive. The provision would have to be redrafted to take into account third parties who have knowledge. Such drafting is not in the domain of the Court. The drafting of legislation is in the domain of Parliament and the Court must reman vigilant not to encroach on Parliament’s domain.

[35] Concerning sections 286.2 and 286.3(1), the Court will first deal with section 286.2.

[36] The Court could use the remedy of severance and reading in. The Court could sever the offending exception to the exception, section 286.2 (5)(e), and could read in the offending immunity subsection, s. 286.5(1)(a), that immunity applies also in situations where a individual commercial sex worker is in a cooperative arrangement with other individual commercial sex workers for the purpose of sharing expenses and costs similar to those described in the exceptions. If the Court makes these changes, section 286.2(1) would not fall within the ambit of invalidity, as described.

[37] However, as Karakatsanis J. cautioned in Ontario (Attorney General) v. G., the court must fairly conclude that the altered legislative scheme falls within the purpose and intention of Parliament.

[38] The Court is not certain in these circumstances that such tailored remedies would fall within Parliament’s purpose and intention. Parliament has made it clear that it wishes to eventually end commercial sex work in Canada. It is not clear to this Court that the removal of the exception to the exception involving commercial enterprise, along with broadening the immunity from prosecution, falls within the wishes of Parliament. Certainly, such a tailored remedy would permit section 286.2(1) to remain in force and effect and permit the exceptions and exceptions to the exceptions to govern, as envisaged by Parliament. However, the Court cannot fairly conclude that Parliament “would have enacted the law as modified by the court” by removing commercial enterprise and broadening the immunity. To do so would significantly alter the scheme enacted by Parliament.

[39] Thus, the Court does not accept the Crown’s submission of a tailored remedy for section 286.2.

[40] Concerning section 286.3(1), the procuring section is not subject to the exceptions, exceptions to the exceptions or the immunity provision. The Crown has submitted that the Court “could read in an exception to the immunity to exclude sellers who provide advice to other sellers about how to set up, advertise and conduct oneself in the sex trade.”[^23] Such a tailored remedy, the Crown asserts, could be used to make section 286.3 (1) constitutionally valid. In order to do so, the Court is of the view that such a tailored remedy on its own would not necessarily make the section constitutionally valid. A far more material revision would be required. Further, if such a tailored remedy is viable, the court could not fairly conclude that such a read in would pass as constitutionally sound legislation from Parliament. Again, it is not in the domain of the Court to re-write legislation. It is in Parliament’s bailiwick to draft and revise legislation. The Court does not envisage a tailored remedy, be it read in, read down or severance, that does not materially alter the section that would permit section 286.3(1) to escape constitutional invalidity.

[41] The last two issues for the Court to analyze are: (1) should there be a suspension of declaration of invalidity and if so, (2) should the applicant be exempted from such a suspension?

[42] The onus is on the Crown to convince the Court that the circumstances of this case is one of those rare circumstances where a suspension of 12 months is necessary.

[43] The Crown submits that not suspending the declaration would continue the exploitation of vulnerable commercial sex workers. The ability of the Crown to obtain convictions against purchasers of sexual services would be more difficult. The Supreme Court of Canada in Bedford provided a one-year suspension and so should this Court.

[44] The Court is not persuaded by these arguments. One likely reason the Supreme Court instructed on remedy in Ontario (Attorney General) v. G. is that there was no principled analysis undertaken in cases like Bedford on whether a suspension of declaration should have been granted. Thus, this Court does not find the fact that there was a suspension of one year in Bedford particularly helpful given the decision of Ontario (Attorney General) v. G. Moreover, it is not at all apparent that, as the Crown contends, convictions against purchasers of sexual services will become more difficult. Even if that were the case, the Court is not persuaded that such a fact should permit an unconstitutional law to continue. To continue prosecution of a constitutionally invalid law through a suspension of declaration would, in this Court’s view, cut against purpose and principles of section 52(1) of the Constitution and the Charter.

[45] On the Crown’s submission on hypotheticals, the use of hypotheticals is permitted. The applicant was successful in using hypotheticals to find the impugned legislation constitutionally invalid. It would fly in the face of reason to permit the use of hypotheticals and then deny the applicant the benefit of the ruling because of the use of such hypotheticals. The Court refuses to entertain the creation of a two-tier system of the remedy of constitutionally invalid legislation: one tier for those cases where the applicant’s facts and situations are the basis of the invalidity, and another tier where hypotheticals are used. The remedy should not be differentiated based on the facts used—hypothetical or not—by the Court in determining constitutional invalidity.

[46] Consequently, the Court is not persuaded that the Crown has met its burden that there should be a suspension of one year of the declaration of constitutional invalidity.

[47] Accordingly, the Court need not address whether the applicant should be exempted from any suspension of the declaration.

NEWMARKET COURT FILE NO.: CR-17-009179-00

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

N.S. Defendant

REASONS ON CONSTITUTIONAL REMEDY ON THE Charter challenge to subsections 286.2, 286.3 and 286.4 of the criminal code

Justice P.W. Sutherland

Released: April 21, 2021

[^1]: 2020 SCC 38. [^2]: Ibid at para. 85. [^3]: Ibid at para. 102. [^4]: Ibid. [^5]: Ibid at para. 108. [^6]: Ibid at para.112 [^7]: Ibid at para. 113. [^8]: Ibid. [^9]: Ibid. [^10]: Ibid. [^11]: Ibid. [^12]: Ibid at para. 114. [^13]: Ibid. [^14]: Ibid at para. 116. [^15]: Ibid at para. 130. [^16]: Ibid at para. 132. [^17]: Ibid para. 132. [^18]: Ibid at para. 139. [^19]: Respondent’s Written Submissions Re: Remedies, at para. 35. [^20]: Ibid at para. 39. [^21]: 2021 ONSC 1628. [^22]: 2013 SCC 72, [2013] 3 S.C.R. 1101. [^23]: Supra, note 19, at para. 26.