With Canada v. Bedford, the Supreme Court unanimously struck down three provisions within the Canadian Criminal Code, all which criminalized activities pertaining to sex work. Sections 210, 213(1)(j) and 213(1)(c) prohibited keeping or being in a brothel, living off the profits of sex work, and talking to clients in public, respectively. While many critics are concerned with the social effects of the ruling on prostitution itself, there has been less attention given to issues of institutional power-sharing between the executive, the legislature, and the judiciary. Observers of the role of the Supreme Court in Canadian politics are often wary of an intrusively ‘activist’ judiciary that chips away at the power of democratically elected officials. Was this a case of ‘judicial activism’? In the case of Bedford, the presence, or lack thereof, of judicial activism may determine whether or not this ruling truly was a victory for sex trade workers.
Since the inauguration of the Charter of Rights and Freedoms in 1982, Canada’s political battleground has largely shifted towards the courts. While the Canadian Bill of Rights enacted by the Diefenbaker government in 1960 was limited to federal statutes and gave no sanction of judicial review, the 1982 Constitution Act
gave explicit authority to the courts to manage issues concerning the infringement of rights and freedoms, and empowered Constitutional law as “the supreme law of Canada.” Accordingly, section 24 endows the Supreme Court as the guarantor of the Constitution.
As such, observers suggest that Canada has undergone an American-style
‘judicialization of politics’ where policy-making is framed in terms of conformity to constitutionally entrenched rights, and where the judiciary has taken on the role of grand arbiter. Some view this as a channel for the protection of minority rights—those sacrificed on the altar of majoritarian politics. Others lament a ‘democratic deficit’ caused by the decline of parliamentary supremacy, compromised by Charter-empowered judicial activism.
In this spirit, many may criticize the Supreme Court’s involvement in Bedford as an intrusion of the judiciary within a policy debate. (What’s more, others mistake the ruling for the legalization of prostitution; in reality, it only alters how some third parties are prosecuted.) The case was certainly framed in a rights discourse. With recourse to s. 7, the judges ruled that the Criminal Code provisions infringed on sex workers’ “security of the person in a manner that is not in accordance with the principles of fundamental justice.” However, the ruling did little in the way of commandeering legislative authority from elected officials. On the contrary, the Supreme Court has asked that Parliament draft new legislation.
However, the Supreme Court’s decision to give Parliament the final word may prove to undercut its own ruling.
Power to the People
When law-making goes to ‘Parliament,’ what does that actually mean? While many will point a finger at the judiciary for undercutting democracy, I suggest looking to Cabinet as the culprit. Whose job is it to ensure that new laws are in line with the Charter? Concordia Professor James Kelly argues that the constitutional “vetting process” falls largely in the hands of Cabinet. During the pre-introductory stages of law-making, the Department of Justice is mandated to ensure that new legislation conforms to the Charter. Kelly notes the lack of an institutional responsibility of Parliament in the “Charter vetting” process, which is the job of the Minister of Justice.
While section 4.1(1) of the Department of Justice Act demands that the Minister of Justice notify Parliament games blackjack online if legislation introduced by the Cabinet is unconstitutional, this provision has never been exercised. This is because of a glaring conflict of interests, as the Justice Minister —also the Attorney General—is constrained by the principles of ‘cabinet solidarity.’ The question of whether a law is constitutional rests upon the Minister’s
estimation of whether or not it can be “demonstrably justified” under section 1 of the Charter. In sum, the Minister of Justice—obliged to the Cabinet— has been asked to spurn Cabinet legislation. Thus, when the Supreme Court passes up the legislative duty to Parliament, it largely hands it over to Cabinet. In the case of Bedford, revisions of sex work laws will rest with Cabinet; specifically, with the Cabinet of Stephen Harper. Even if Parliament were to play a bigger role in making sure that the new sex work legislation were constitutional, a majority government, combined with strict party discipline, will ensure that Harper will have the final say.
Yet this is not necessarily a victory for the Conservative government. Instead, some argue it is a “legislative headache.” With a federal election on the horizon, the law-making onus bears the trappings of controversy. Harper’s previous electoral victory hinged on a twin platform of economic promotion and a crackdown on crime. One would be hard-pressed to argue that this is not an opportunity for the Conservatives to follow through on espoused anti-crime values. Indeed, Peter MacKay—Harper’s current Minister of Justice—announced that they would “ensure the criminal law continues to address the significant harms that flow from prostitution …” The federal government is thus faced with the task of pandering to a conservative electoral demographic while producing Charter-compliant criminal legislation—a formidable challenge.
Looking back on civil rights cases such as Brown v. Board of Education, certain scholars argue that an independent activist judiciary provides a mechanism for pushing forward socially progressive counter-majoritarian policy changes. Unencumbered by electoral considerations, Supreme Court judges have the power to expand and interpret the law with the effect of protecting minority rights. Meanwhile, the executive can comfortably blame the judiciary, preserving electoral support.
Yet the Supreme Court’s decision to pass legislative responsibility to the Conservatives right before a federal election has undercut the opportunity for any fundamentally ‘activist’ changes. Institutionally empowered to implement its own, “Cabinet-centered” Charter review, the Harper government may opt to put forward constitutionally dubious anti-crime legislation in attempts to save electoral face. In a regrettable sense of the word, the new legislation will surely be ‘democratic.’ Chances of this staying a ‘victory’ for sex workers are slim.
From 1982 to 2007, 53 percent of statutes deemed constitutionally incompatible by the Supreme Court were those
brought forth by the Department of Justice. One may thus conclude that Cabinet revision alone is not enough to ensure constitutional guardianship. Sometimes, the judiciary has to step in.
Accordingly, if Cabinet fails to pass Charter-compliant legislation, bona fide ‘judicial activism’ may have to play out in the future. Canada v. Bedford alone, however, is not a case of judicial intrusion. As things stand, elected officials have the final word within a case of court-government dialogue. But because of conservative electoral pressures to crack down on crime, the Harper government may push for constitutionally risky legislation that undercuts the ruling’s victories for sex workers. If the Supreme Court strikes down the new laws, we may then start talking about activism.