Equality & incrementalism: the role of common law reasoning in constitutional rights cases.

• Author: Hughes, Jula

It has been argued that the Charter of Rights and Freedoms ushered in a progressive new era in Canadian law. This argument usually implies that the common law remains a largely conservative or stabilizing force in Canadian law, and that principled change under the Charter holds more promise than the incrementalism of the common law method. But progressives may also be concerned that principled constitutional change carries its share of risks, including the risk that rapid, large-scale constitutional change could be met with backlash from government and from citizens, and that the interests sought to be advanced through constitutional litigation might ultimately be worse off. In this paper we argue that courts may at times be justified in adopting an incremental approach to constitutional cases, but only if that approach is infused with the Charter value of substantive equality. We then analyze the Ontario Court of Appeal's decision in (Attorney General) v Bedford, a constitutional challenge to the prostitution provisions of the Criminal Code, through the lens of an equality-centred approach to incrementalism. We conclude that the Court of Appeal's judgment fails to deliver on the Charters equality guarantee in important ways. In particular, the majority leaves intact the one provision that specifically targets street sex workers, leaving the most vulnerable sex workers at risk of criminal prosecution and without a remedy. A proper application of common law method, informed by the Charter values of equality and inclusion, would have led the Court of Appeal to a different result, while still grounding the case in the legitimacy of the common law.

Certains ont soutenu que la Charte canadiennes des droits et libertes marquait l'avenement d'une nouvelle ere progressiste dans le droit canadien. Selon cet argument, on pourrait en deduire que la common law demeure dans une large mesure une force conservatrice ou, du moins, stabilisante en droit canadien, et que des changements fondes sur des principes de la Charte semblent plus prometteurs que la methode de l'evolution graduelle propre a la common law, egalement connue sous le nom de >. Toutefois, les progressistes peuvent egalement craindre qu'un changement constitutionnel fonde sur des principes comporte sa part de risques, notamment celui qu'un changement constitutionnel rapide et a grande echelle subisse un contrecoup de la part du gouvernement et des citoyens et que les interets que l'on cherche a promouvoir et defendre par le truchement du contentieux constitutionnel se retrouvent dans une situation pire qu'avant. Dans cet article, nous soutenons que les tribunaux judiciaires auraient, dans certains cas, raison d'adopter une methode de modification graduelle envers les affaires constitutionnelles dont ils sont saisis, mais uniquement si cette methode est impregnee du principe de l'egalite reelle selon la Charte. Nous analysons ensuite la decision rendue par la Cour d'appel de l'Ontario dans (Procureur general) c Becford, une contestation constitutionnelle des dispositions du Code criminel relatives a la prostitution, selon la perspective d'une approche graduelle axee sur l'egalite. Nous en avons conclu que le jugement de la Cour d'appel n'avait pas, dans une large mesure, reussi a respecter la garantie d'egalite prevue par la Charte. La majorite laisse en particulier intacte la disposition qui vise justement les travailleuses du sexe de la rue, faisant ainsi en sorte que les plus vulnerables d'entre elles courent le risque d'etre poursuivies au criminel et ce, sans recours. Une application adequate de la methode de common law, eclairee par les valeurs d'egalite et d'integration garanties par la Charte, aurait incite la Cour d'appel a rendre une decision differente, tout en fondant la cause sur la legitimite de la common law.

Table of Contents I. INTRODUCTION II. COMMON LAW INCREMENTALISM AND THE NEED FOR AN EQUALITY-CENTRED APPROACH A. An Equality-Centred Approach to Incrementalism III. AN EQUALITY-CENTRED APPROACH TO INCREMENTALISM IN BEDFORD A. The Case B. The Dissent C. The Use of Common Law Reasoning in Bedford CA D. Incomplete and Slanted Approach to the Prostitution Reference E. Reading the Prostitution Reference in Light of Bedford F. Suppressed Histories G. History and the Challenge to the Communication Provision IV. GETTING IT RIGHT V. CONCLUSION I. INTRODUCTION

It is often said that the Canadian Charter of Rights and Freedoms ushered in a progressive new era in Canadian law. When this assertion is made, the speaker is usually implying that the common law remains a largely conservative or stabilizing force in Canadian law, and that principled change under the Charter holds more promise than the incrementalism of the common law method. But progressives also know that principled constitutional change carries its share of risks, including the risk that rapid, large scale constitutional change will be met with backlash from government and from citizens, and that the interests sought to be advanced through constitutional litigation may ultimately be worse off. (1)

Almost from the beginning, courts have relied on the common law method in Charter adjudication. (2) There are good reasons for this. Concerns over the legitimacy of judicial review would be greatly heightened if judges did not exercise a degree of restraint consistent with the limitations of their office. Moreover, history has shown that the common law is capable of bringing about progressive change, albeit more incrementally than strict adherence to principle might dictate. (3)

When a constitutional case is replete with references to stare decisis, however, one is often left to wonder whether the Court is relying on the common law method to avoid giving constitutional rights their full scope. While it is tempting to simply retreat to arguments in favour of a principled approach to constitutional adjudication, in this paper we suggest a third way. We argue that courts are justified in adopting an incremental approach to constitutional cases, but only if that approach is infused with the Charter value of substantive equality. An equality-centred approach to incrementalism takes advantage of the common law's considerable strength in advancing an anchored, purposive and progressive constitutional jurisprudence, while also being faithful to the promise of the Charter.

Under this revised approach to incrementalism, courts deciding constitutional cases would be required to be more sensitive to the demands of equality than the common law, with its focus on liberty, has historically mandated: This would mean that courts would need to pay particular attention to the voices of marginalized claimants. (4) They would need to critically assess prior precedents through an equality lens to identify any deficiencies in the manner in which those cases were litigated and decided, and decline to apply the doctrine of stare decisis if a precedent failed to deal sufficiently with the equality dimensions of a case. Courts would also need to interrogate the legislative purposes put forward by government as justifications for infringing constitutional rights, and ensure that those purposes were not based on discriminatory or moralistic views about the subjects of the legislation. And finally, to the extent that a single constitutional case called for significant constitutional change, courts would be required to structure their response so that in bringing about incremental change, the most acutely vulnerable constitutional interests were given priority.

In this paper we assess the Ontario Court of Appeal's decision in Canada (Attorney General) v Bedford (5) through the lens of an equality-centred approach to incrementalism. In Bedford, sex workers challenged three prostitution provisions of the Criminal Codeh under sections 7 and 2(b) of the Charter (7). The case raised issues of great significance and potential reach. The Court of Appeal was asked to consider recognizing a new dimension of freedom of expression in the form of protective speech; to confront, once again, the limits that section 7 of the Charter places on the use of the criminal law power, against the backdrop of recent jurisprudential developments that have been more receptive to the enforcement of these limits than had previously been the case; and to clarify how the principles of fundamental justice interact with each other and with the section 1 analysis. Bedford was also a case with substantial equality dimensions. The applicants were sex workers who were articulating in their own voices their experiences of criminalization and victimization, supported by a network of experts who provided wide-ranging social science evidence on the issues before the Court.

It is somewhat surprising, then, that the majority's decision in Bedford is cloaked in the language of stare decisis and incrementalism. The Court purported to rest its decision on a straightforward application of precedent, placing particular reliance on the Supreme Court of Canada's decision in the Prostitution Reference. (8) The disconnect between the very significant issues requiring resolution in Bedford and the familiar language of the common law sets up a tension that runs throughout the majority's reasons for judgment. This tension surfaces in small but significant technical errors that the Court commits in its use of the common law method, giving rise to the impression that its invocation of the tools and techniques of the common law is serving as rhetorical cover for the much larger constitutional shifts taking place in the judgment.

In some respects, of course, the Court of Appeal rose to the challenge. It not only struck down one of the impugned provisions and significantly narrowed a second, it also supplied an innovative framework for addressing the interaction between a subset of the principles of fundamental justice. It gave effect to the previously marginalized...