Equality & Incrementalism: The Role of Common Law Reasoning in Constitutional Rights Cases
It is often said that the Charter ushered in a progressive new era in Canadian law. When this assertion is made the implication is usually 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 might ultimately be worse off. In this paper 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. We then analyze (Attorney General) v Bedford, the Ontario Court of Appeal’s recent decision on the constitutionality of the prostitution provisions of the Criminal Code, through the lens of an equality-centered approach to incrementalism. We conclude that the Court of Appeal’s judgment contains serious deficiencies from the standpoint of equality. 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.
So What is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter's Section 1
R. v. Oakes is widely regarded as one of the most important judgments interpreting Canada's Charter of Rights and Freedoms. In addition to laying down its famous proportionality test to assess the reasonableness of limits on Charter rights, it clarified the Supreme Court of Canada's Court's interpretive methodology for Charter cases, perhaps most centrally that rights are of presumptive importance, and limitations the exception that are only acceptable if governments meet a demanding test of justification. The citation of Oakes by courts in Antigua and Barbuda, Australia, Fiji, Hong Kong, Ireland, Israel, Jamaica, Namibia, South Africa, the United Kingdom, Vanuatu and Zimbabwe has made Oakes one of the central models for rights-based constitutional adjudication. So the almost immediate retreat from Oakes is of broader constitutional significance, both domestically and abroad. If Oakes was a model for how to interpret the Canadian Charter, and how rights-protecting documents in other jurisdictions should be construed, the question is what kind of model it remains two decades on. There is a dominant narrative on what the true legacy of Oakes and the retreat from Oakes are. The argument is that Oakes set out a uniform approach for assessing justifiable limitations on Charter rights irrespective of differences in context, but that in the decade following Oakes, the Court searched for criteria of deference, to reliably and predictably categorize cases where deference was warranted and those where it was not. These categories were not applied consistently by the Court, and, indeed, produced disagreement within the Court over how they should be applied in specific cases. Underlying both trends were concerns regarding the cogency of the distinctions employed by the Court to delineate the boundaries of these categories. The broader lesson of Oakes is the need to tailor judicial review to the unique context of each case. Although the dominant narrative captures much of Oakes' legacy, it misses much of what is at stake in many recent s. 1 cases, and by implication, what the true legacy of Oakes and the retreat from Oakes are. In my view, Oakes created an enormous institutional dilemma for the Court, by setting up a conflict between the demand for definitive proof to support each stage of proportionality analysis, and the reality of policy making under conditions of factual uncertainty. And so the legacy of Oakes is that the central question of s. 1 is how the Court should allocate the risk of factual uncertainty when governments legislate under conditions of imperfect information. If Oakes is a comparative model for proportionality analysis under other rights-protecting constitutions, then these kinds of problems are not particular to Canada. More generally, what is striking about the comparative reception of Oakes is that neither the narrative nor counter-narrative of the legacy of the judgment appears to have traveled outside of Canada. Foreign courts would be wise to grapple with these difficulties with the benefit of two decades of reflection by Canadian courts instead of simply applying the Oakes test in its original and undeveloped form.
Attitude Change Following a Diversion Program for Men who Solicit Sex
Abstract This study investigates the effectiveness of an educational diversion program, or “john school,” in changing the attitudes of men arrested for soliciting or attempting to solicit sex. Participants were 341 men who completed pre— and post-program measures assessing attitudes towards prostitution, attitudes towards prostituted women, and attitudes towards purchasing sexual services. Analyses revealed significant attitude changes in all three areas. Further analyses revealed that the program appeared to meet its goal of producing attitude change irrespective of prior experience levels with prostitution. Findings suggest that diversion programs like the one examined may be successful in their goal of changing the perception that prostitution is a victimless crime.