Of Fundamental Justice, Equality and Society’s Outcasts: A
Comment on R. v. Tremayne and R. v. McLean
H. Wade MacLauchlan*
The author examines two recent decisions in
the Supreme Court of British Columbia deal-
ing with the Canadian Charter of Rights and
Freedoms and its effect on the recently en-
acted section 195.1 of the Criminal Code on
prostitution. To begin, the author suggests that
Canadian legislation has systematically served
to oppress the prostitute within society and
that the new legislation is no different. He
then proposes that the Charter ought to guar-
antee not just the narrower libertarian rights
as argued in these cases. Rather, based on a
broader interpretation of the fundamental
rights as set out in sections 7 and 15 it ought
to protect the prostitute against deprivation
of personal dignity. Accordingly, it ought to
protect against deliberate actions by Parlia-
ment which further oppress the prostitute.
L’auteur se penche sur deux rcentes d~ci-
sions de la Cour supreme de la Colombie-
britannique traitant de ]a Charte canadienne
des droits el libertes et de ses effets sur l’article
195.1 du Code Criminel, r6cemment adopt6
par le Parlement et consacrE A la prostitution.
L’auteur sugg~re d’abord que la Igislation en
matire de prostitution a toujours servi A op-
primer les prostitu6(e)s dans la soci6t6 et que
la nouvelle legislation n’est pas diftfrente. II
propose ensuite que la Charte ne se limite
pas a garantir les droits libertaires des pros-
titu6(e)s, tel qu’argument6 dans ces deux d6-
cisions. S’appuyant sur une interpr6tation plus
large des droits fondamentaux de la Charte
dans les sections 7 et 15, il sugg6re que celle-
ci devrait protger les prostitu6(e)s contre des
privations de dignite personnelle. Elle devrait
ainsi prot~ger contre les actes d6libfr6s du
Parlement qui oppriment davantage les pros-
titu6(e)s.
*Of the Faculty of Law, Dalhousie University.
McGill Law Journal 1986
Revue de droit de McGill
McGILL LAW JOURNAL
[Vol. 32
The decisions of the Supreme Court of British Columbia in R. v. Tre-
mayne and R. v. McLean’ will be a disappointment to those who expect
the Canadian Charter of Rights and Freedoms2 to change the condition of
oppressed members of our society. Tremayne and McLean are unlikely,
however, to come as a surprise to those “Charter-watchers” who have been
skeptical about the capacity of liberal, rights-based discourse to effect mean-
ingful social or political change for those who need it most.
These decisions are appeals from two Provincial Court judgments, each
of which held certain aspects of the newly enacted soliciting provision,
section 195.1 of the Criminal Code,3 to be unconstitutional. In Tremayne,
Lemiski J. held that the part of paragraph 195.1(1)(c) which makes it an
offence to in any manner communicate or attempt to communicate with
any person for the purpose of engaging in prostitution violates the consti-
tutional doctrine of”overbreadth”. In McLean, Libby J. found the reference
in subsection 195.1(1) to “in any place open to public view” and the ex-
tended definition of “public place” in subsection 195.1(2) to be unconsti-
tutional since the legislation encompassed “far more than its avowed purpose”.
In reversing these decisions, McKay J. held that there is no constitutional
issue of freedom of expression or freedom of association raised by the leg-
islation. He also concluded that we have no independent constitutional
doctrine of overbreadth and that the constitution does not require that the
effect of a law must match its purpose.
There are two respects in which the judgments ofMcKay J. in Tremayne
and McLean are disappointing. First, in terms of the outcome, there is a
failure to do anything about a law where Parliament has deliberately opted
‘(May 6 1986), Vancouver CC86 0492 and CC86 0563, rev’g (10 April 1986), Vancouver
68098C (Prov. Ct), Lemiski J. and (17 March 1986), Vancouver 69038C (Prov. Ct), Libby J.
[hereinafter Tremayne and McLean]. Both decisions are being appealed to the British Columbia
Court of Appeal.
2Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter].
3Criminal Code, R.S.C. 1970, c. C-34, as am. S.C. 1985, c. 50. The text of s. 195.1 is 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.
1986]
COMMENTS
to deal with the complex problem of prostitution, and particularly street
prostitution, by sweeping prostitutes themselves further into a spiral of crim-
inality, violence, vulnerability to control by others and continued societal
condemnation. The deliberation with which Parliament chose to deal with
street prostitution by making the condition of life of prostitutes even more
untenable becomes evident when the new legislation is considered in light
of the advice of both the Report of the Special Committee on Pornography
and Prostitution: Pornography and Prostitution in Canada4 and the Report
of the Committee on Sexual Offences Against Children and Youths: Sexual
Offences Against Children.5 Furthermore, government has turned a deaf ear
to the submissions made by many concerned community groups, particu-
larly women’s groups, to successive Parliamentary committees6 and in the
public forum, urging a more sensitive and sympathetic approach to the
condition of prostitutes. The second respect in which these judgments, and
presumably the argument upon which they are based, are disappointing is
the failure to confront directly the real issues of human dignity and self-
worth which lie at the heart of opposition to the new soliciting provision
and its predecessors. Instead of dealing with this matter squarely as a prob-
lem of equality or of fundamental justice, the judgments focus upon lib-
ertarian concerns regarding freedom of expression, freedom of association
and vagueness or overbreadth. There is also in both cases a brief discussion
of fundamental justice. This appears to be an argument that it would offend
principles of fundamental justice to create an offence where there is no “real
or apprehended harm”. In effect, the argument is that prostitution is a
victimless crime.
In this comment I will argue that the real focus of constitutional debate
about the soliciting legislation should be upon the prostitute as victim, and
ultimately, as the victim of Parliament. This debate ought to be cast as an
issue of fundamental justice and equality. But, instead of finding a consid-
eration of these basic concerns in Tremayne and McLean, one comes away
from these judgments with a sense that Bob Samek had it right when he
commented at the time of the coming into force of the Charter. “Although
the purpose of the Charter is allegedly to entrench the citizens’ most basic
rights, it has in effect entrenched a patchwork of legal puzzles which will
4Vols 1, 2 (Ottawa: Supply and Services Canada, 1985) (Chair:. P. Fraser) [hereinafter Fraser
Report].
5 Vols 1, 2 (Ottawa: Supply and Services Canada, 1984) (Chair: R.F. Badgley) [hereinafter
Badgley Report].
6Canada, H.C., Minutes of Proceedings and Evidence of the Legislative Committee on Bill
C-49, Nos 1-8 (19 September- 8 November 1985) (Chair:. A. McKinnon); Canada, H.C.,Minutes
of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, Nos 79-
90 (29 April – 27 May 1982) (Chair: J.-G. Dubois).
REVUE DE DROIT DE McGILL
[Vol. 32
provide grist to the lawyers’ mill.”‘ 7 Moreover, the outcome of these chal-
lenges to the new soliciting provisions tends to confirm Professor Samek’s
pessimistic forecast that the Charter is more likely to reinforce prevailing
ideology than to strengthen the cause of fundamental rights, a cause which
he defines as “a dynamic response to man’s condition in the world”. 8
Prostitution is a complex social phenomenon. It has many victims.
Property owners are disturbed by street prostitution in their neighbour-
hoods. Pedestrians are inconvenienced; they are sometimes bodily or ver-
bally assaulted. There is even something pathetic about the customers who
resort to buying casual sex. Members of the general community are offended
by the spectre of a market in human bodies. The community is justifiably
concerned about the maintenance of moral standards generally and about
the undermining of values of mutual self-respect. But the people who are
most vulnerable are the prostitutes themselves. They begin from a disad-
vantaged social and economic position. They are subjected to high levels
of violence and danger in their work. And ultimately Parliament crimin-
alizes them, labels them as deviant, and thereby subjects them to even
greater danger and societal contempt. If there is any ambiguity as regards
the status of prostitutes as a socially constructed class, it is clarified by the
Parliamentary stamp of disapproval. More than any other factor, it is the
law which defines street prostitutes as a class and which stigmatizes them.
It is this legislative role in the oppression of prostitutes which I will argue
is constitutionally offensive.
The most commonly cited cause for people engaging in prostitution is
economic necessity. 9 The majority of prostitutes are women.’0 They often
begin practising as prostitutes while they are juveniles; they do not remain
in street prostitution beyond their mid-twenties.” They come from back-
grounds where there is a high incidence of sexual abuse as children.’ 2 And
they incur a high risk of violence on the job, primarily from customers but
also from pimps. The practice of prostitution is, in the words of the Fraser
Committee, “dangerous” and “dehumanizing”. 3 As a representative of the
Alliance for the Safety of Prostitutes told the Legislative Committee on Bill
C-49: “We see prostitute women as being the least powerful and the most
vulnerable by the fact that their profession leaves them wide open to all
7R.A. Samek. “Untrenching Fundamental Rights” (1982) 27 McGill L.J. 755 at 769.
“1bid. at 786.
“Fraser Report, supra, note 4 at 353 and 376.
“‘Ibid. at 371.
”Ibid. at 372.
‘2Badgley Report. supra, note 5 at 175-93.
1 IFraser Report. supra, note 4 at 378.
1986]
CHRONIQUE DE JURISPRUDENCE
forms of violence.” 14 An inherent form of violence against prostitutes is the
exploitation of their bodies and their sexuality. Potentially more insidious
is the deprecation and disdain which they encounter from other members
of the community. The most obvious form of violence threatens their phys-
ical persons and, ultimately, their lives. Prostitutes were vulnerable to
murder’ 5 before the coming into force of the new section. There is concern
that they may now be even more vulnerable as they are forced into less
secure neighbourhoods by the new law.16
So far from adopting a concerned attitude which gives due regard to
the vulnerable situation of these members of our community, the approach
taken by Canadian legislators to prostitution has been justifiably labelled
by feminist writers as “victim-blaming”.1 7 From 1869 to 1972, there existed
the status offence, applicable by its terms only to women, of being “a com-
mon prostitute”, who, when found in a public place, was labelled as a
criminal if she was not able to give a good account of “herself’. ‘ 8 The patent
discrimination in the “Vag C”‘ 9 provision was the subject of criticism by
14Minutes qfProceedings and Evidence ofthe Legislative Committee on Bill C-49, supra, note
6. No. 2 at 5 (22 October 1985).
“‘In Halifax there were three prostitute murders in the year previous to the coming into
force of Bill C-49: B. Gorman,”Murder, New Laws: Streets not the Same for Hookers” [Halifax]
Chronicle Herald (23 December 1985) 1.
‘6Area restrictions imposed as terms of probation orders in Vancouver have been blamed
for one prostitute murder. A. Steacy, “Corpse on a Quiet Street” MacLean’s (15 September
1986) 33. Police in Saskatchewan, Alberta and British Columbia are investigating the strangling
deaths of nine prostitutes. Five of these murders occurred between 1981 and 1985. Four of
them occurred in 1986, since the coming into force of the new laws. Four other prostitutes in
Regina, Edmonton and Vancouver are reported missing. “Nine Hooker Murders in West may
be Linked” [Hal-iax] Chronicle Herald (4 October 1986) 12.
17See C. Boyle,”Offences Against Women” in A Feminist Review of Criminal Law (Ottawa:
Supply and Services, 1985) 49 at 54-55.
“SThe offence appeared as s. 175(1)(c) of the Criminal Code, R.S.C. 1970, c. C-34, before it
was finally repealed in 1972 by S.C. 1972, c. 13, s. 12(1). John P. McLaren in “Chasing the
Social Evil: Moral Fervourand the Evolution of Canada’s Prostitution Laws, 1867-1917” (1986)
I Can. J. of Law and Soc. 125 at 152 examines the whole range of Canadian laws dealing with
prostitution in the period from 1867 to 1917 and concludes that, even though there was a
reform attempt to strengthen the law with respect to the exploitation of prostitutes (though it
is to be noted that throughout this period the streetwalker offence “Vag C” was applicable only
to women prostitutes):
It is a permissible, if tentative, conclusion that the Canadian prostitution laws
did little or nothing to stop the exploitation .of prostitutes, let alone reduce the
incidence of prostitution itself. Indeed, the law and its enforcement may in some
respects have contributed to exploitation by driving the prostitute into the clutches
of pimps. … The prostitutes remained the deviants, to be harrassed when and how
the law enforcement authorities willed it.
“‘The term “Vag C” is, presumably, derived from the fact that the pre-1972 soliciting pro-
vision appeared as paragraph (c) of the general vagrancy provision, s. 175(1), ibid..
McGILL LAW JOURNAL
[Vol. 32
the Royal Commission on the Status of Women. 20 One judicial interpre-
tation of this provision considered its purpose to be “to prevent the male
public from being solicited on the streets and other public places by pros-
titutes, but not to prohibit prostitution”. 2’ At the same time as he proposed
the repeal of “Vag C” in 1972, Minister of Justice Otto Lang said, with
respect to the repeal of the general vagrancy provision, paragraph 175(1)(a):
“Here we have an offence which has been applied differently to the rich
and to the poor in our society and we propose to move against this difference
in application. ‘ 22 The same concern about disparate treatment between rich
and poor apparently did not pertain to street soliciting since the much
criticized “Vag C” was replaced with a provision making it an offence for
prostitutes but, at least according to some interpretations, still not for cus-
tomers, to “solicit any person in a public place for the purpose of prosti-
tution”. 23
Although the post-1972 section 195.1 was, on its face, gender-neutral
as between male and female prostitutes, the vast majority of prosecutions
continued to be against women prostitutes.24 As Christine Boyle has pointed
out, 25 even the decision of the Supreme Court of Canada in Hutt v. R.,26
widely blamed or credited (depending on one’s perspective) for emasculating
section 195.1 by imposing a requirement that solicitation be “pressing and
persistent”, disclosed a continuing assumption that only women are pros-
titutes. Spence J. said, in illustrating the potential absurdity of a broad
interpretation of the provision:
I suppose that in Vancouver there are hundreds of pedestrians every day who
request free rides in automobiles, and it would appear ridiculous and abhorrent
to say that every one of them who was female and who did so was guilty of
soliciting … .27 [emphasis added]
Subsequent to the decision in Hutt, many police forces across Canada
adopted the view that the law was unenforceable and very few charges were
“Report of the Royal Commission on the Status of Women in Canada (Ottawa: Information
Canada, 1970) (Chair F. Bird) at 369-71.
21R. v. Dubois (1953), 106 C.C.C. 150 at 154, 17 C.R. 56 (Ont. Mag. Ct).
22Canada, H.C., Debates at 1699 (27 April 1972).
-3S.C. 1972, c. 13, s. 15. The provision was held to apply to both prostitutes and customers
in R. v. Di Paola (1978), 43 C.C.C. (2d) 199,4 C.R. (3d) 121 (Ont. C.A.). The British Columbia
Court of Appeal held that the provision applied only to prostitutes in R. v. Dudak (1978), 41
C.C.C. (2d) 31, [1978] 4 W.W.R. 334.
24Canadian Advisory Council on the Status of Women, Prostitution in Canada, 1984. This
report reproduced a study of prosecutions in Toronto over a four-year period. 70.9 per cent
of those charged were women.
25C. Boyle & S. Noonan, “Prostitution and Pornography: Beyond Formal Equality” in C.
Boyle et al., eds, Charterwatch: Reflections on Equalitv (Toronto: Carswell, [forthcoming]) 225.
261(1978), [1978] 2 S.C.R. 476, 82 D.L.R. (3d) 95 [hereinafter Hutt cited to S.C.R.].
“Ibid. at 481. See also H.J. Levy, “The Law and Prostitution: The Girls Win Again” (De-
cember 1978) 2 Can. Law. 14.
1986]
COMMENTS
laid. This led to political pressure from articulate and well-organized groups
of residents of urban neighbourhoods, notably in Vancouver, but also in
other cities across Canada, to rid their neighbourhoods of the nuisance effect
of prostitution, and preferably of the prostitutes themselves. This pressure
even led to attempts, one successful and one unsuccessful, in Vancouver
and Halifax to banish prostitutes from large parts of the city by means of
an injunction, ostensibly directed at public nuisance. 28 In Halifax the At-
torney-General was even successful in obtaining permission to publicly post
the names of forty-seven alleged prostitutes, all women, who were the de-
fendants in the injunction proceedings. The ostensible reason for posting
the names was that it was not possible to personally serve the defendants
since many had no fixed or known address. The spectre of the government
turning prostitutes into victims could hardly be more striking.
In response to the mounting controversy over street prostitution in
major centres, the Fraser Committee was appointed. It conducted hearings
across Canada and concluded that any move to further criminalize street
prostitution “would subvert any attempt to treat prostitution sensitively as
a major social problem”. 29 The Committee recommended the repeal of
section 195.1 of the Criminal Code and the amendment of the bawdy-house
provisions to allow small numbers of prostitutes to organize their activities
out of a place of residence. Moreover, the Committee placed these rec-
ommendations for legal reform in the context of a broad commitment to
improving the economic and social condition of prostitutes. Accordingly,
it was recommended that the federal government, in conjunction with other
levels of government in Canada, “strengthen both their moral and financial
commitment to removing the economic and social inequalities between men
and women and discrimination on the basis of sexual preference”. 30 It was
further recommended that governments “should ensure that there are ad-
equate social programs to assist women and young people in need”. 3’ The
general approach of the Committee in recommending that governments
move toward reduced criminalization of the activities of prostitutes is clearly
laid out in the following passage from the Report:
The approach which the Committee takes stems from its concern to underline
the elements of equality, responsibility, individual liberty, human dignity and
28A.G. British Columbia v. Couillard(1984), 42 C.R. (3d) 273, 11 D.L.R. (4th) 567 (B.C.S.C.);
A.G. Nova Scotia v. Beaver(1984), 66 N.S.R. (2d) 419,31 C.C.L.T. 54 (S.C.T.D.), aff’d (1985),
67 N.S.R. (2d) 281 (S.C.A.D.). See comment by H.W. MacLauchlan, “Criminal Law Meets
Civil Law: More than One Way to Skin a Cat” (1985) 42 C.R. (3d) 284, and see J. Cassels,
“Prostitution and Public Nuisance: Desperate Measures and the Limits of Civil Adjudication”
(1985) 63 Can. Bar Rev. 764.
29Fraser Report, supra, note 4 at 533.
3 Ibid. at 527.
311bid.
220
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[Vol. 32
appreciation of sexuality … . It is our belief that as long as prostitutes continue
to be open to prosecution as, for example, the inmates of bawdy houses or for
soliciting on the streets, our concern with prostitution will continue to be
misdirected and the law will get in the way of more beneficial social strategies.
Although we do not in any way favour people pursuing prostitution as a career,
we also believe that adults who determine that they want to pursue that lifestyle
and do so without engaging in incidental criminal activity should be able to
do so with dignity and without harassment. Accordingly, we are of the opinion
that the prostitution-related activities of prostitutes should be decriminalized
as far as possible.32
But, rather than give any effect or credence to these recommendations,
the federal government introduced a law making it an offence to do virtually
anything in public “for the purpose of prostitution”. The most far-reaching
of the subsections of the new section 195.1 makes it an offence to in any
manner communicate or attempt to communicate with any person for the
purpose of engaging in prostitution. When he introduced Bill C-49 to the
House of Commons, Minister of Justice John Crosbie made the govern-
ment’s position clear:
The legislation does not attempt to deal with all of the problems that prosti-
tution creates or with the problems of prostitution generally … . It only pur-
ports to deal with one aspect of the problems that prostitution can create,
which is the nuisance to others created by street soliciting not only by the
prostitute but by the customer of the prostitute ….
I hope that if this suggested legislation goes to committee, the legislative
committee will deal very promptly with it and report back, because that is
what is wanted by the citizens of Vancouver, the Niagara Peninsula and To-
ronto and all those who want to see their streets given back to the law-abiding
citizens.3 .
When the Bill went to legislative committee, the Minister of Justice
assured the Committee that the government was “concerned about civil
liberties and human rights” and, as evidence of such concern, he cited a
provision of the new law, unprecedented in Canadian criminal legislation,
for a comprehensive review by a committee of the House of Commons three
years after the coming into force of the law. The precise focus of the three-
year review was, however, left somewhat ambiguous. It was envisaged in
the following way by the then Minister of Justice:
So if in the next three years, Mr. Chairman, there are any abuses; if it turns
out that there are any alarming consequences to this legislation … if this does
not reclaim the streets of this country for the ordinary citizen of this country
and for the police, then automatically there is going to be this review. If there
is abuse of this legislation by … police officials of any type, then that evidence
‘2lbid. at 533-34.
“Canada, H.C., Debates at 6374 (9 September 1985).
1986]
CHRONIQUE DE JURISPRUDENCE
must come before the House of Commons, and must, within a three-year
period.
34
Judging from this elaboration of the purpose of a three-year review, it is
highly doubtful that Mr Crosbie was focusing upon the same concerns about
human dignity and equality which underlay the Fraser Committee’s rec-
ommendations. At best, his concerns must have been about possible excesses
in enforcement practices, perhaps along the lines of entrapment. At worst,
his statement is but a restatement of the priority of reclaiming the streets
“for the ordinary citizen of this country and for the police”. As for a sensitive
approach to the plight of prostitutes themselves, the Minister of Justice
referred to the Bill at various points during Committee deliberations as
“anti-hooker legislation”. Said the Minister: “We are the federal govern-
ment. This is the only anti-hooker legislation we have in the hopper. So
this hooker is in the hopper.”‘ 35 In his appearance before the Senate Com-
mittee considering the legislation, Mr Crosbie was again candid about his
prognosis for the legislation and about his level of concern for the situation
of the prostitute. When asked about increased risks to the prostitutes, he
replied:
Once you make contact with the customer, you are always taking a great risk,
and that is an occupational hazard. However, I do not think that this bill
increases the hazard. In fact, I would hope that, since the activity would not
be so public, there might be some who would not be able to find where the
action is and might get diverted into better pursuits. 36
The contrast between the position of the government on Bill C-49 and
the advice given it by the Fraser Committee could not be more striking.
The government obviously opted for a quick-fix in response to the com-
plaints of residents’ associations and chose to ignore a more sensitive ap-
proach, emphasizing the elements of equality, responsibility, individual
liberty, human dignity and the appreciation of sexuality, which informed
the Fraser Report. There was even a move by government members of the
legislative committee to argue against hearing witnesses on the legislation,
since it would be “totally superfluous”. According to the proponent of that
plan: “I think we should rather direct our minds to getting it through
promptly, without any witnesses being heard. Then it will be dealt with in
the review process, and we will carry on from there.” 37
34Minutes of Proceedings and Evidence ofthe Legislative Committee on Bill C-49, supra, note
6, No. 1 at 19 (10 October 1985).
351bid. at 22.
36Canada, H.C, Proceedings of the Senate Standing Committee on Legal and Constitutional
Affairs, No. 30 at 18 (3 December 1985) (Chair J. Neiman).
37Minutes of Proceedings and Evidence ofthe Legislative Committee on Bill C-49, supra, note
6, No. I at 45.
McGILL LAW JOURNAL
[Vol. 32
In the end, witnesses were heard with the same approximate represen-
tation of women’s groups, neighbourhood residents’ groups, municipalities,
police and civil liberties organizations as had been involved in the debate
for several years. Bill C-49 was reported back to Parliament with minor
amendments, after a division on party lines in the legislative committee, 38
and was adopted by Parliament, again with a division along party lines. The
Bill was approved by the Senate Committee, but not without reservation.
The Senate Legal and Constitutional Affairs Committee said:
We would thus hope that the new offence could be considered as an interim
measure, to give our governments –
federal, provincial and municipal – a
period free of public pressure to consider of whether the issue of public pros-
titution can be dealt with just as effectively and in a less punitive way, and in
a way most suited to the nature of the problem in a particular area. 39
It is not insignificant that the Senate Committee Report concluded by noting
two redeeming features of the legislative exercise which allowed the Sena-
tors, on balance, to approve Bill C-49 without amendment. These were the
provision for a three-year review which, incidentally, the Senators suggested
might begin immediately, and the assurances of the Minister of Justice that
further legislation dealing with other aspects of prostitution would be forth-
coming. 40
This review of Canadian treatment of the “prostitution problem”, par-
ticularly through the latest amendments to section 195.1 of the Criminal
Code, might be more usefully considered as a study of our treatment of
prostitutes. For over a century we labelled only poor women as deviant.
Beginning in 1972 we extended the label, at least on its face,4′ to men who
are often poor and who suffer the double stigma of a “deviant” sexual
orientation. In 1985, we explicitly included customers, almost exclusively
male and obviously from a different social class than the vast majority of
prostitutes, within the deviant category, although the Minister of Justice
continued to describe the bill as “anti-hooker” legislation. What is clear
about the 1985 amendment is that it amounted to a rejection of the advice
of a thoughtful and informed committee which recommended that prosti-
tutes be treated with some humanity. Not only did the government reject
that advice, but it acted contrary to it by adopting a law which can only be
‘,Opposition to the Bill in the Legislative Committee was led by Svend Robinson (N.D.P.-
Burnaby) and Lucie Pdpin (Lib.-Outremont).
” Supra. note 36, No. 35 at 8 (16 December 1985).
4″No further legislation dealing with prostitution was introduced in the 1st Session of the
33rd Parliament.
4 1See Boyle & Noonan, supra, note 25, for a review of the recent process of making all
prostitution-related offences gender-neutral. Boyle says: “The trend toward gender-neutrality
in legislating and judging is likely to drive whatever discrimination there is underground into
enforcement decisions.”
1986]
COMMENTS
described as draconian, and which stops just short of creating a new status
offence. Finally, it remains to be seen how evenly balanced the prosecutions
between customers and prostitutes will be.
In the face of this systematic legislative policy of condemning one of
the most oppressed classes in our society, the challenge for lawyers and
courts is to think in constitutional terms about redressing the problem. The
essential objection to the new soliciting law, and to its predecessors, is that
they not only fail to remedy a critical problem of human dignity, but that
they exacerbate the problem. Against the backdrop of the advice given to
the government, and of the repeated and articulate submissions by women’s
and civil liberties groups, it can even be argued that the government has
deliberately chosen to worsen the situation of prostitutes.
But what has the constitution to say about legislation which worsens
the situation of prostitutes? The law is on its face neutral and does not deny
any of the normal procedural advantages given to accused persons. Neither
does it impose an unacceptable standard of responsibility, such as absolute
liability, which might trigger substantive concerns about fundamental jus-
tice. At first glance, then, the legislation does not appear to raise any familiar
doctrinal concerns of equality or fundamental justice. But that is the chal-
lenge posed by this legislation: to explore the limits of our constitutional
guarantees of fundamental justice and equality. Of course, there are other
doctrinal matters which are more obvious. Because of the range of activity
prohibited by the legislation, particularly communication and attempts to
communicate, it is tempting to ignore the issues of equality and fundamental
justice and deal with more familiar constitutional issues such as freedom
of expression and association, vagueness, overbreadth and status offences.
In Tremayne, McKay J. rejected a freedom of expression argument, saying
that it would “demean the grand concept of freedom of expression” 42 to
allow the bargaining for sexual services to be protected for constitutional
purposes. Surely it would be more to the point to observe that the consti-
tution itself is demeaned if it can offer nothing more to prostitute women
facing a criminal sanction than the opportunity to claim that they have a
right to offer their bodies for sale and a right to communicate the offer. The
same may be said with respect to the argument that solicitation is protected
by the guarantee of freedom of association. The essence of the soliciting
legislation is not that we are telling prostitutes with whom they should or
should not associate. It is that we are telling them that we, as a community,
do not want to associate with them. It is not to the point to argue that we
should permit soliciting as a matter of freedom of expression or freedom
of association since the real point is that this speech and this association
42Supra, note I at 10.
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are not free at all. Solicitation by prostitutes is the act of desperate members
of our community, motivated largely out of economic necessity.
Without denying the potential for the arguments considered in Tre-
mai’ne to ultimately succeed,43 it is not unreasonable to suggest that they
miss the point. What is really offensive about the soliciting legislation is
not that it impairs the capacity of a prostitute to enter into a bargain for
sexual services. It is that we, as a community, choose to officially label the
prostitute as deviant. Moreover, we do so by knowingly creating a legislative
scheme which makes life more dangerous for her than it already is. And
finally, we adopt this draconian penal legislation as a singular measure in
the face of articulate calls for a more caring approach to address the un-
derlying social and economic problems. The real concern, in short, with the
soliciting provision is not libertarian; it is communitarian.
But what communitarian values can we find in the constitution? In
particular, are there any guarantees which provide a basis for challenging
section 195.1 of the Criminal Code? One must begin by recognizing that
the basic value in the Charter is human dignity. This is sometimes the
libertarian dignity of the individual and sometimes the group-based concept
of dignity of persons relative to their membership in a class. The principal
libertarian guarantee of dignity of the individual is to be found in the section
7 promise that everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in accordance with
principles of fundamental justice. More specific individual rights are the
guarantee against unreasonable search and seizure and the guarantee against
arbitrary arrest or detention. The principal class-based provision in the
Charter is section 15; reference can also be had to the language guarantees,
to provisions (admittedly weak) respecting aboriginal rights, to the section
27 undertaking to preserve and enhance Canada’s multicultural heritage,
and to the section 28 guarantee that the rights and freedoms referred to in
the Charter apply equally to male and female persons.
As an analytical matter, there is no harm in recognizing this classifi-
cation of libertarian and group-based values. However, interpreters of the
41The so-called overbreadth argument is a very compelling one. While “overbreadth” itself
is an American term of art, there is an equivalent in Canada in the principles enunciated by
Dickson C.J.C. in R. v. Oakes (1986), [1986] 1 S.C.R. 103, 65 N.R. 87. Since, in order for a
limit upon a constitutional right to pass the test of s. I of the Charter, the legislative means
must impair the right or freedom in question “as little as possible” (at 139), it seems highly
unlikely that the government can show on the balance of probabilities that s. 195.1 is the least
restrictive means of dealing with the problem of street prostitution. This is the argument which
was accepted by Lemiski J. in McLean, supra, note 1; however, a problem is presented by the
express holding that neither freedom of expression nor freedom of association was violated in
the first place.
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CHRONIQUE DE JURISPRUDENCE
Charter must be careful not to treat the classification too rigidly. The Charter
must be interpreted as a coherent document. These rights, whether inher-
ently individualistic or inherently the rights of groups, must be interpreted
m a way which contributes to and is consistent with the overall purpose of
the Charter. That purpose can be identified as the enhancement of human
dignity and, in particular, the protection against governmental acts which
threaten our dignity, either as individuals or as members of a group. That
is the basic promise of the Charter that government will not treat members
of our community without dignity.
There will be occasions when an equality argument will support and
inform an argument based on an individualistic claim. For example, if a
decision to search is made on the basis of race, it ought to be more difficult
to support the reasonableness of the search than if race were not a factor.
So too, it ought to be the case that a decision to deprive persons of life,
liberty or security of the person will be more closely scrutinized if the dep-
rivation is related to class-membership. If we ever have to engage in a
constitutional debate about capital punishment in Canada, surely our con-
cern for the issue of cruel and unusual punishment will be highest where
there is an allegation that the penalty is more likely to fall upon certain
classes in society than upon others.44 Conversely, where there is alleged to
be a problem of inequality, the claim ought to be more closely scrutinized
where the unequal treatment involves the imposition of a penal sanction
than where the question is one of distribution of some benefit. The reason
for this closer scrutiny is that the equality claim will then be buttressed by
recourse to other constitutionally sensitive elements of the state action. 45
In a constitutional challenge to the soliciting provision, the argument
ought to be that sections 7 and 15 of the Charte, informed by other pro-
visions, particularly section 28, combine to protect against legislatively based
losses of dignity, particularly where the loss of dignity involves a deprivation
of liberty or security of the person, and particularly where members of the
target group in significant measure share other characteristics which are
constitutionally suspect on equality grounds, such as sex, sexual preference
and social condition. In short, Parliament cannot deliberately or recklessly
44See, e.g., the following notes, “Constitutional Law – Capital Punishment – Death Penalty
as Presently Administered Held Unconstitutional” (1973) 41 Fordham L. Rev. 671; and R.J.
Pascucci, E.D. Strauss, G.R. Watchman, “Capital Punishment in 1984: Abandoning the Pursuit
of Fairness and Consistency” (1984) 69 Cornell L. Rev. 1129.
451n the United States constitutional jurisprudence, there must be a “compelling government
justification” for inequalities bearing on fundamental rights. See L.H. Tribe, American Con-
stitutional Law (Mineola, N.Y.: The Foundation Press, 1978) at 1002-03. It should be noted,
however, that the American jurisprudence extends to the distribution of benefits: Shapiro v.
Thompson, 394 U.S. 618 (1969).
McGILL LAW JOURNAL
[Vol. 32
worsen the situation of a group which is already vulnerable. This argument
is all the more important in the case of prostitution because the law has
already played the predominant role in making prostitutes vulnerable.
Before considering the doctrinal difficulties posed by these arguments,
it should be appreciated that, both as a remedial matter and in terms of
issues appropriate for consideration by courts, what is ultimately required
in response to a challenge to the soliciting provision is not an extraordinary
exercise of power by the judiciary. This is not a matter of looking for some
affirmative remedy. The courts are not being asked to order Parliament to
create for prostitutes the kind of social support system recommended in the
Fraser Report. Instead, the remedy is the striking down of constitutionally
offensive penal legislation. The Supreme Court of Canada has already struck
down soliciting legislation in Westendorp v. R.46 The Court effectively struck
down the post-1972 soliciting provision through statutory interpretation in
thtt.47 Canadian courts now respond to the kind of criminal justice concerns
which underlie opposition to the soliciting provisions, such as, for example,
concerns about abuse of process and entrapment. 48 These “remedial” pow-
ers of the courts have been developed in response to criminal prosecutions.
Prosecutions are the ultimate exercise of power by the state, and they involve
courts more intimately than do any other decision-making processes of the
state. In the elaboration of the defence of entrapment, the Supreme Court
has recognized that the courts cannot supervise the day-to-day operations
of law enforcement agencies but that they can at least decline to participate
in the prosecution of state-instigated crimes. It is a natural extension of this
principle that the courts should decline to complete the criminal process
where Parliament has labelled a particular group as deviant and has done
so in a manner which violates fundamental justice or equality rights. Since
the Supreme Court of Canada has already acknowledged a power to draw
the line on penal laws and to engage in substantive review, 49 it ought to be
clear that, in remedial terms, the proposal that section 195.1 of the Criminal
Code be held constitutionally invalid is not a revolutionary one. What re-
mains to be considered is whether, substantively or doctrinally, the argu-
ment is likely to succeed.
4″(1983). [1983] 1 S.C.R. 43, 144 D.L.R. (3d) 259, 32 C.R. (3d) 97.
41Supra, note 26. In R. v. Heifer (1969), 11 D.L.R. (3d) 229, 10 C.R.N.S. 103 (Man. C.A.),
Dickson J.A. (as he then was) interpreted the vagrancy provision, the companion of”Vag C”,
in a restrictive fashion.
4xAmato v. R. (1982), [1982] 2 S.C.R. 418, 140 D.L.R. (3d) 405; R. v. Jevitt (1985), [1985]
49Reference re Section 94(2) of the Motor Vehicle Act, R.S.B.C. 1979, c. 288, as amended by
the Motor Vehicle Amendment Act, 1982, 1982 (B.C.), c. 36 (1985), [1985] 2 S.C.R. 486, 24
D.L.R. (4th) 536 [hereinafter Motor Vehicle Reference].
2 S.C.R. 128, 20 D.L.R. (4th) 651, 47 C.R. (3d) 193.
1986]
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To return to section 15, there are some significant doctrinal hurdles.
Does section 15 apply beyond the stipulated grounds? If so, is status as a
prostitute a relevant ground of discrimination? Perhaps most problematic,
does the fact that section 195.1 applies also to customers avoid a potential
section 15 problem? First, it is now reasonably widely accepted that section
15 applies beyond the stipulated grounds. The language of the section itself
supports this view, as does scholarly writing50 and a developing body of
case law. 51 As for the question of whether being a prostitute could be a
relevant criterion for section 15 purposes, there have already been indica-
tions that courts are prepared to recognize extended classes where concerns
for human dignity are considerably less compelling, such as the distinction
which is made between lay litigants and litigants with professional counsel
on the issue of cost awards. 52 It has also been recognized that a distinction
between holders of patents for medicine and holders of patents for other
inventions could be a basis for a section 15 challenge. 53 However, care must
be exercised in the kinds of distinctions which are given serious treatment
within section 15. Otherwise there is a danger of trivializing the guarantee
of equality.54 For example, in Smith, Kline and French, Strayer J. said: “[I]n
my view there is no magic in the concept of a ‘class’: it has no definition,
provides no standard, but is merely a subjective concept”. 55 This view begins
with a concept of formal equality, that all distinctions are prima facie rel-
evant for purposes of section 15, and that everything then depends on the
standard by which the reasonableness of the distinction is assessed.
It would be preferable as an approach to section 15 and to the litigation
of equality rights to build into the elaboration of relevant “classes” and the
definition of discrimination a purposive touchstone. This accords with the
50A.A. McLellan, “Marital Status and Equality Rights” in A. Bayefsky & M. Eberts, eds,
Equality Rights and the Canadian Charter of Rights and Freedoms (Toronto: Carswell, 1985)
411 at 431-37; A. Bruner, “Sexual Orientation and Equality Rights” in Bayefsky & Eberts,
supra, 457 at 459-467; P. Hughes, “Feminist Equality and the Charter. Conflict with Reality?”
(1985) 5 Windsor Y.B. Access Just. 39 at 80-81.
(S.C.A.D.). See a case comment by MacLauchlan in (1986) 10 C.P.C. (2d) 70.
51E.g., Smith, Kline & French Laboratories Ltd v. A.G. Canada (1985), [1986] 1 EC. 274, 24
D.L.R. (4th) 321, 7 C.RR. (3d) 145 (T.D.) [hereinafter Smith, Kline & French cited to EC.];
Re Andrews and Law Society of British Columbia (1985), 22 D.L.R. (4th) 9, 66 B.C.L.R. 363
(B.C.S.C.) [hereinafter cited to D.L.R.].
52McBeth v. Dalhousie University (1986), 72 N.S.R. (2d) 224 at 230-32, 26 D.L.R. (4th) 321
53Smith, Kline & French, supra, note 51 at 319-21.
54See, e.g., the judgment of Taylor J. in Re Andrews and Law Society of British Columbia,
supra, note 51 at 16 where it is accepted that all discrimination ought to be treated in the same
way irrespective of whether it engages one of the specified grounds. The unfortunate but prob-
ably inevitable result of such an approach is that a weak test is adopted for all discrimination,
the standard being whether the distinction “is irrelevant or if the disadvantage imposed …
clearly goes beyond anything which could be considered reasonable”.
55Supra, note 51 at 319.
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[Vol. 32
general principles of interpretation enunciated by the Supreme Court in
dealing with the Charter.56 The equality rights guarantee of the Charter was
not enacted in a vacuum, nor was it enacted for the purpose of eliminating
all distinctions created by the state. Even after the recognition of equality
rights in the Charter, only certain people will continue to be eligible for
student loans and we will still have urban zoning. Again, we must be careful
not to trivialize the whole concept of equality by litigating every conceivable
instance in which the government makes distinctions. That, after all, is the
essence of government, particularly in the contemporary administrative state.
The core of section 15 is human dignity. To begin, the guarantee of
equality is made only to “every individual”, not, as is the case with other
Charter provisions, to “everyone” or to “every person”. Second, the stip-
ulated grounds are race, national or ethnic origin, colour, religion, sex, age
or mental or physical disability. These are all personal characteristics, in-
herent to our self-perception and to our identity as persons. The guarantee
is that the state will not single us out on the basis of one of these charac-
teristics and deny some benefit or protection, or treat us on less than equal
terms before and under the law. Surely, if the grounds are to be extended,
it ought to be done in cases which are analogous to the stipulated grounds
and in which there is some legitimate concern that there will be discrimi-
nation based upon a personal characteristic of individuals as members of
a class. Accordingly, the two most frequent suggestions for extended grounds
are marital status and sexual orientation. 57 Other grounds which are pres-
ently covered in human rights legislation in Canada but which do not -fall
within the explicit or implicit terms of section 15 are “social condition”, 58
record of criminal conviction 59 and “source of income”. 60
What is striking about the suggestion that prostitutes ought to constitute
a “class” for purposes of section 15 is that they represent the conjunction
of many of the sensitive grounds listed in the Charter or in similar human
rights documents in Canada. Prostitutes share a common “social condition”.
This criterion has been interpreted under the Quebec Charter to refer to the
rank, place or class which a person occupies in society, as determined by
56See R. v. Oakes, supra, note 43; Motor Vehicle Reference, supra, note 49; R. v. Big M Drug
Mart (1985), [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321; Law Society of Upper Canada v. Ska-
pinker (1984), [1984] 1 S.C.R. 357, 9 D.L.R. (4th) 161, 53 N.R. 169.
57See “Marital Status and Equality Rights” and “Sexual Orientation and Equality Rights”,
supra, note 50.
58Charter of Human Rights and Freedoms, R.S.Q. c. C-12, s. 10 [hereinafter Quebec
Charter]. The Newfoundland legislation, Newfoundland Human Rights Code, R.S.N. 1970, c.
262, ss 7(1) and 9(1), refers to “social origin”.
9Canadian Human Rights Act, S.C. 1976-77, c. 33, s. 3(1).
60Manitoba Human Rights Act, S.M. 1974, c. 65, s. 2(l).
1986]
CHRONIQUE DE JURISPRUDENCE
birth, education, income, occupation and even, in some societies, produc-
tivity.61 Prostitutes are predominantly women. More importantly, for pres-
ent purposes, in the eyes of the law they have been predominantly women
and were for a long time, according to the law, exclusively so. The minority
of prostitutes who are male suffer the alternative stigma of having a deviant
sexual orientation. As a group, prostitutes bear a special stigma in society.
They not only constitute a socially constructed “class” but their identity as
a class is very much a product of the way other members of society have
been encouraged by the law to look down on them or exploit them. 62 Ac-
cordingly, it is consistent with both the text and the purpose of section 15
of the Charter to treat an individual’s status as a prostitute as an appropriate
ground to trigger the protection of the equality provision.
The interesting question at this point is whether it can be said that
prostitutes are discriminated against by section 195.1 in light of the textual
neutrality as between prostitutes and customers. It is here that we arrive at
the heart of the problem. What is meant by the expression “without dis-
crimination” in section 15? Formal or liberal theories of equality adopt
what is, at least on its face, a simple formula. Persons who are similarly
situated must be treated in a similar fashion.63 According to this theory,
the essence of discrimination is irrational or unfair distinction.64 The prob-
lem with a singularly distinction-based theory of equality is that it does not
call into question acts of official oppression per se. It only serves as a basis
to challenge oppressive treatment if someone else is seen to be unfairly
favoured. The argument one is forced to make is according to the formal
model: “You can only target group X, if you include group Y, because Y
is similarly situated.” It does not allow an argument along the lines: “It is
time you left X alone, because you have abetted her oppression for too long
and now you have gone too far.” The basic premise of the formal argument
is that the government can oppress X as long as it oppresses Y as well. The
premise of the alternative argument is that the government cannot act de-
liberately or recklessly to undermine the basic dignity of any group.
6’This is a translation of a passage from Commission des Droits de la Personne v. Ville de
Beauport (21 August 1981), Quebec 200-02-002939-793 (Que. Sup. Ct) cited in Commission
des Droits de la Personne v. Ville de Montreal (1983), 4 C.H.R.R. D/1444 (Que. Sup. Ct) at
D/1445.
62For a review ofthe treatment of prostitution in other societies, see F. Henriques, Prostitution
and Society (London: MacGibbon & Kee, 1962); J.F. Decker, Prostitution: Regulation and
Control (Littleton, Colorado: Fred B. Rothman & Co., 1979); V.L. Bullough, The History of
Prostitution (New York: University Books, 1964); B. Heyl, “Prostitution: An Extreme Case of
Sex Stratification” in F. Adler & R.J. Simon, eds, The Criminology of Deviant Women (Boston:
Houghton Mifflin Co., 1979) 196.
63See A. Gutmann, Liberal Equality (Cambridge: Cambridge University Press, 1980).
64See A. Bayefsky, “Defining Equality Rights” in Bayefsky & Eberts, supra, note 50, 1.
McGILL LAW JOURNAL
[Vol. 32
There are problems for prostitutes who wish to challenge soliciting laws
on the basis of formal equality. It is always possible to avoid the issue by
gerrymandering the relevant comparison group. The most curious instance
of this kind of analysis occurred in a challenge under the Canadian Bill of
Rights65 to the pre-1972 “Vag C” provision on the ground that it applied
only to women prostitutes. In R. v. Beaulne, Ex parte Latreille66 a claim of
discrimination based on sex was rejected by Houlden J. who said: “It is not
all females who being found in a public place must give a good account of
themselves, but only females falling within the class of ‘prostitutes and night
walkers’.” 67 Since the offence did not apply to all women, but only to “pros-
titutes and night walkers”, there was no discrimination on the basis of sex.
Now that the offence applies to male prostitutes and to customers, as well
as to women prostitutes, the prospect of a successful sex-based challenge
has become even more remote. 68 The law, at least on its face, is no longer
discriminatory. The same would apply to an argument based on discrimi-
nation between prostitutes and customers. It is, however, conceivable that,
with weighty evidence of disparate enforcement of the law, a challenge based
on unequal administration might be successful. But, in light of a deeply
embedded Canadian tradition of deference to prosecutorial discretion, the
evidence would need to be overwhelming. 69 Thus, this kind of argument is
unlikely to succeed from a practical point of view. More importantly, the
argument is misconceived because it begins from the concession that you
can prosecute “hookers” as long as you haul in a few customers to legitimate
the exercise. The basic point is that prostitution legislation, which is intro-
duced as “anti-hooker” legislation and which must, in any event, be under-
stood in the context of the predecessors of section 195.1 and the general
attitude of the law towards prostitutes, cannot now be saved by including
customers in the deviant group. It may very well be that customers can still
65S.C. 1960, c. 44, reprinted in R.S.C. 1970, App III.
66(1970), [1971] 1 O.R. 630, 16 D.L.R. (3d) 657, 2 C.C.C. (2d) 196 (H.C.) [cited to O.R.].
67Ibid. at 632. See comment on the constitutionality of”Vag C” in L. Smith “Whether Offence
of Vagrancy by Common Prostitute Constitutes Discrimination by Sex: R. v. Lavoie” (1971)
6 U.B.C,L. Rev. 442.
68The equality rights challenge to soliciting laws which are either gender-neutral on their face
or gender-neutral as applied has not succeeded in United States courts. See, e.g., Commonwealth
v. R., 374 Mass. 5, 372 N.E.2d 196 (Mass. Sup. Ct. 1977); People v. Superior Court ofAlameda,
19 Cal. 3d 338, 562 P.2d 1315, 138 Cal. Rptr. 66 (Cal. Sup. Ct. 1977). For a review of the
American challenges to prostitution laws, see E.E Murray, “Anti-Prostitution Laws: New Con-
flicts in the Fight Against the World’s Oldest Profession” (1979) 43 Alb. L. Rev. 360 and Boyle
& Noonan, supra, note 25.
691n R. v. Morgentaler (1985), 52 O.R. (2d) 353, 22 D.L.R. (4th) 641 (C.A.) the Court simply
adopted the views ofLaskin C.J.C. in Morgentaler v. R. (1975), [1976] 1 S.C.R. 616, 30 C.R.N.S.
209, 53 D.L.R. (3d) 161, to the effect that any unevenness or disparity in the administration
of the law is for the legislature to correct and not for the courts to monitor as an issue of
equality before the law or equal protection of the law.
1986]
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231
can still be prosecuted and will have to answer for themselves for entirely
different and legitimate public policy reasons. However, it is not a legitimate
public policy concern for the legislature to abet the oppression of a discrete
group in society. Accordingly, section 195.1 ought to be struck down as
offending fundamental justice and equality.
At the outset of this comment, I said that a disappointing feature of
the Tremayne and McLean decisions was their failure to break out of formal
and technical discourse about Charter guarantees. Indeed, it may well have
been this kind of formal thinking about constitutional guarantees which
prevented counsel from arguing the case in terms of equality or fundamental
justice in the first place. I hope I have succeeded in demonstrating how a
less formal argument could be developed and, indeed, how such an argument
is essential to get to the heart of the real constitutional concerns underlying
Parliament’s treatment of prostitutes.
