I am content to leave it to others, who have filled the media in the days since the judgment of the Supreme Court of Canada in Bedford was released, to debate what law, if any, there should be to regulate ‘the oldest profession.’ As it is a ‘sex trade’ there is vast interest. What interests me is why nine judges in Ottawa should have the first, for they started the debate, and last, for whatever is done must satisfy them, word on the subject.
The answer might seem simple. The Charter is the supreme law of Canada and the judges’ job is to apply it. They are the experts. They were asked and they answered. Who are we to question them?
If it is that simple, why has it taken 31 years since the Charter became our supreme law for us to be told that the longstanding provisions of the now subordinate law, the Criminal Code, must go? And the question becomes more poignant when it is remembered, as the judges did at length, that 23 years ago the Supreme Court of Canada was asked much the same question in the Prostitution Reference and found no fault in the provisions of the Criminal Code now struck down.
The question boils down to this: is there any difference between the Supreme Court of Canada’s opinion with all its references to the Charter and old cases, and your or my opinion arguing in a bar without any reference to the Charter? Were the judges constrained by the language of the Charter, and the interpretations of judges before them, to render the judgment they did? Might some of the judges think that absent the Charter we should do best to keep the provisions of the Criminal Code but have felt bound to render, as a legal opinion, the judgment they did, though it conflicted with their personal opinion on the subject?
The answer to this question, pace a battalion of law professors, is NO.
The judges make a great show with references to Sections 2(b) and 7 of the Charter and ‘doctrines of arbitrariness, overbreadth and gross disproportionality’ as expounded in their more recent cases, of applying law in which they are experts. But ‘arbitrariness, overbreadth and gross disproportionality’ are just words with which we might pomp up our arguments in a bar. As the Court has chosen to interpret the Charter nothing in it constrains them from making whatever law they choose.
This goes so far that they show no deference to old, largely dead, judges who preceded them. The Prostitution Reference is dismissed on the basis that the old judges had not articulated the doctrines they have so cleverly come up with and that their social, political and economic assumptions are no longer valid. When these nine judges are gone their successors may articulate new doctrines and make new assumptions and show them no deference.
And in dismissing the work of their predecessors 23 years ago the judges were careful to send a message to all judges below them not to feel constrained by precedents. The Ontario Court of Appeal had questioned the readiness of the judge a first instance to proceed with slight regard for the Prostitution Reference. ‘Not to worry.’ said the Supreme Court of Canada to all judges. 'Hear whatever arguments take your fancy and send it all up to us and we’ll decide.'
As further encouragement to judges below the Court said courts of appeal should accept the findings of fact of judges at first instance. When a trial judge accepts a witness’s evidence that she saw the accused covered in blood leaving the room where the victim was found courts of appeal will accept the finding. They did not see the witness and cannot judge her credibility. But evidence in Charter cases is a very different thing, as I have discussed. In this case it was 25,000 pages of affidavits and ‘experts' opinions. The judge at first instance heard some witnesses but the Court does not pretend that the case turned on their evidence. The Court excused itself from reading it all. Neither we in a bar nor the opinionators in the media feel the need, so why should the Court? The judge’s findings matched their opinions and she had saved them the trouble.
They also saved themselves the trouble of writing new law that might appeal to them and their successors. They gave Parliament a year to try something new. This is part of what the law professors lyingly call the ‘dialogue’ between the Court and Parliament. Something like the dialogue between a sergeant and a platoon.
A year should be plenty of time, shouldn’t it? But it took over four years for the courts to deal with the issue. Over six months for the Supreme Court of Canada to decide the case. Longer if one assumes the judges spent some time reading before they heard the arguments. Or 31 years if we start counting from when the Charter came into effect.
If we think all that need be done is for a clerk to read the Court’s judgment and draft a bill to suit the judges' opinions and Parliament to wave it through a year is more than enough. But the Court itself says ‘The regulation of prostitution is a complex and delicate matter. It will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime.’ And Parliament, unlike the Court, does not act in a vacuum. Is not irresponsible. Parliament acts as the servant of us all, taking all our ideas and interests and making decisions for us. Bills passed in Parliament are the result of of years of public discussion, lobbying and controversy. Even accepting the rough restrictions placed on Parliament by the Court, the question of what, if anything, should be done, is not one that can, democratically, be settled in a year.
But the judges, though they have given themselves the vote, are above politics and no doubt innocent of having landed Stephen Harper with an embarrassing issue in the year before the next election.
This is what comes of government by Charter. No doubt there is much to be said by any of us about what the law on prostitution should be. Absent the Charter those who wanted change would have engaged us in public debate. With the Charter all this was channeled into a court case that was only occasionally reported as it proceeded. The Supreme Court of Canada with its cumallya approach to intervenors heard a crowd of parties while Parliament and the public were sidelined.
Now we’re under orders to sort it all out. And pronto.