The Result In Canada (Attorney General) v. Bedford

The much awaited decision from the Court of Appeal for Ontario in the Bedford case on the constitutionality of various prostitution related sections of the Criminal Code has finally been released.

The majority of the court agreed with Justice Himel's lower court decision that s. 210 common bawdy house and s. 212(1)(j) living off the avails of prostitution are unconstitutional as being contrary to the principles of fundamental justice under s. 7 of the Charter.

In the matter of keeping a common bawdy house, the Court struck down the section but suspended the invalidity of the section for 12 months to give Parliament an opportunity to redraft the section in a Charter friendly manner.

The offence of living off the avails of prostitution under s. 212(1)(j) is unconstitutional in the limited circumstances of where the relationship between the prostitute and those living off the avails is not exploitive. For example, where a prostitute supports his or her family with the earnings of prostitution, the family would not be exploiting the prostitute and should not be charged under this section. This exemption would not preclude "pimps," who put prostitutes on the streets for their own economic benefit would still be subject to this subsection. 

Where the court did not agree with Justice Himel was on the issue of the constitutionality of s.213 communication for the purpose of prostitution. The court upheld this section on the basis of a previous decision from the Supreme Court of Canada (SCC) on the same issue. In that previous 1990 case, Reference re ss. 193 and 195.1(1) (c) of the Criminal Code, the Government of Manitoba referred the then new and untested communication sections to the SCC to determine if the sections would withstand a possible Charter challenge. For further discussion of references to the SCC, please read my previous posting here. The SCC found section 195.1(1)(c), the same section at issue in Bedford but numbered as s. 213(1)(c), to be contrary to fundamental freedom of expression under s. 2(b) of the Charter but saved under s. 1 of the Charter as a reasonable limit in a free and democratic society. I have discussed s.1 in relation to freedom of expression in some previous postings and most particularly here and here.

The decision is of interest in terms of the findings of the Court on the s.7 issue. However, the decision also makes some important comments on the principle of precedent and the restrictions on a Court when revisiting a decision, which has already been a subject of consideration by a higher level Court. This fascinating discussion, which I suggest impacted the decision in Bedford and provides guidelines for future cases, will be the subject of my next post. 

 

The Pridgen Case and Freedom of Speech On the Canadian Campus

Tomorrow, the Alberta Court of Appeal will hear arguments on the Pridgen case. The issue involves the use of Facebook postings to criticize a University of Calgary professor, contrary to the student code of conduct. In the lower court case, Madam Justice Strekaf considered whether the subsequent finding of non-academic misconduct by the Pridgen brothers was a violation of freedom of expression under s.2(b) of the Charter. Ultimately she ruled there was a violation and the restriction could not be justified under s.1 of the Charter.

The issue of freedom of speech on campus is troubling. Universities are seen as the defender of academic independence and the protector of free thought. Through this freedom, critical thought is created, nourished, and encouraged. Innovation and excellence is the by-product of free thought. To restrict it, results in a withering effect and a loss of free debate on controversial issues. Thus, there is a societal interest in protecting free expression on campus. Our democratic tradition demands it.

On the other hand, as mentioned in previous posts, freedom of expression is not absolute under our Canadian Charter. Speech can be restricted but only if justified in a free and democratic society. There have been campus cases where Facebook postings were restricted justifiably. Those cases, however, involved threats of harm attracting Criminal Code sanctions. In contrast, the Pridgen case involved no threats and there was no evidence of resultant "injury" before the discipline council. Certainly, the comments were unkind, but were they the kind of expression we want to restrict on a University campus?

The answer will be left to the Court on Wednesday when the freedom to express oneself on campus will be tested. We will await the decision to see if the Pridgen brothers receive a pass or a fail.