Last December, the Supreme Court of Canada released its long-awaited and unanimous decision in the Bedford case, which challenged the constitutionality of Canada’s prostitution laws. Many people had been unaware, prior to Bedford, that prostitution itself was not illegal in Canada. Instead, and borrowing from English law, historically Canada chose to criminalize the activities surrounding prostitution.

Prior to Bedford, there were three types of prostitution-related activities which were illegal. Those were:

·       Owning, managing, occupying or being found in a bawdy house (aimed at brothels);

·       Living off the avails of prostitution (aimed at pimps); and,

·       Communication in a public place for the purposes of prostitution (aimed at solicitation and street prostitution).

The Supreme Court struck out all three provisions deeming them to be unconstitutional as, in the court’s opinion, they make prostitution, which is legal, more dangerous for prostitutes. The rationale was that by permitting prostitutes to “hire” bodyguards and drivers and to operate out of “secure” space, the dangers that prostitutes are exposed to would be eliminated or reduced. This conclusion ignores the fact that the dangers prostitutes face come not only at the hands of “johns” but also at the hands of the very individuals the Supreme Court expressed prostitutes will, a year from now, be able to turn to for protection. In the real world, those “drivers” or “bodyguards” are referred to as “pimps” and “human traffickers.”

The absurdity of some of the conclusions reached by the Supreme Court is not the focus in this piece. What the media has not reported on, and what many non-lawyers (and many lawyers for that matter) may not understand or appreciate is the chaos that the Bedford decision will reap in Canadian law.

In Canada, our legal system is one of Common Law. “Common Law” means that rather than operating solely on legislation, where all law is codified (Quebec is a civil law jurisdiction using a Civil Code for provincial matters), our legal systems is developed by and operates through decisions or case law made by judges, courts, arbitrators and tribunals.

To maintain order, Common Law holds to a very important legal principle called stare decisis which comes from the Latin phrase “Stare decisis et non quieta movere,” meaning “to stand by decisions and not disturb the undisturbed.” In simple terms, it means that earlier decisions are used as precedents to be used in future similar cases. A basic tenet of stare decisis is that lower courts cannot overturn a precedent by a higher court. So, if the Court of Appeal for Ontario says that 2 + 2 = 5, all lower courts in Ontario are bound by that precedent and must rule in future similar cases that 2 + 2 = 5. Only the Court of Appeal for Ontario itself or the Supreme Court of Canada (which is the highest court) can overturn that precedent and say that 2 + 2 = 4. And decisions of the Supreme Court of Canada apply nationwide.

What made the Bedford case so interesting and anticipated from a legal point of view was to see how the Supreme Court of Canada would deal with two lower courts overturning one of its precedents. In 1990, the Supreme Court of Canada ruled on a challenge to the constitutionality of Canada’s prostitution laws. In that case, the Reference re ss. 193 & 195.1(1)(c) of Criminal Code (Canada) (“Prostitution Reference”), the Supreme Court of Canada ruled that the provisions of the Criminal Code relating to bawdy houses was not unconstitutional and the provisions relating to communication in public for the purposes of prostitution were unconstitutional, but were saved (i.e, constitutionally legal) by section 1 of the Canadian Charter of Rights and Freedoms because they were reasonable limits to freedom of expression.

At first instance in Bedford, which means at the first and lowest court, the trial judge struck the three provisions criminalizing prostitution-related activities. She found that she was not bound by the Supreme Court of Canada’s decision in the Prostitution Reference because, in her opinion, the law had evolved since then.

On appeal, the Court of Appeal for Ontario upheld the trial judge’s striking of the laws relating to bawdy houses and living off the avails of prostitution, but overturned her decision relating to solicitation.

Finally, at the Supreme Court of Canada, Chief Justice Beverly McLachlin, writing for the entire Court, upheld the trial judge’s original decision and the striking of all three provisions, giving the federal government one year to replace them or lose them.

The Supreme Court’s refusal to admonish the lower courts’ failure or refusal to abide by the precedent it set in the Prostitution Reference and the Chief Justice’s treatment of the doctrine of stare decisis is summed up by her comments at paragraph 42 of the decision. These comments will, I believe, be used as a basis to disregard prior Supreme Court jurisprudence. The potential results include the decriminalization of euthanasia and assisted suicide in the short-term (criminal prohibition which the court has, in the last two decades, found constitutional) and will, in the long-term, cause legal chaos, frivolous legal proceedings and jurisprudential uncertainty. The Chief Justice stated:

[42] In my view, a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue.  Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate. 

With this paragraph, Chief Justice McLachlin, perhaps intentionally or perhaps unwittingly, has deconstructed the basis of our legal system. What she is saying is, so long as there is a different argument made a lower court judge is not bound by precedent or stare decisis.

Practically, this means that issues which have been settled by the courts, and specifically higher courts like the Supreme Court of Canada, are no longer necessarily settled. For example, in Multani v. Commission Scolaire Marguerite-Bourgeoys, the Supreme Court ruled that a school board could not prohibit a Sikh student from wearing a kirpan, a ceremonial dagger carried by baptized Sikhs. The basis of the Supreme Court’s decision was that it was an unreasonable limit on a Sikh student’s freedom of religion. As a result of the Multani decision, school boards across Canada have implemented policies to permit religious attire generally and the kirpan specifically. Given Chief Justice McLachlin’s comments above, the precedent dealing with accommodation of religious attire in schools may now be in jeopardy.

Until now, if a school board prohibited a Sikh student from wearing a kirpan – or perhaps a Muslim student from wearing a hijab or similar religious attire – the student could have filed an application for judicial review by a Court and the school board’s decision would have likely been overturned with little process or fight. The doctrine of stare decisis exists for that reason, so that the same or similar cases are not tried over and over and over. Now, if a school board decides to prohibit a Sikh student from wearing a kirpan, the student can still file an application for judicial review by a Court, but, I suggest, because of Chief Justice McLachlin’s comments, so long as the school board makes an argument that differs from the arguments made in Multani, the court will have to allow the proceeding and rule on the issue.

Beyond that, if the school board makes an argument that differs from the arguments made in Multani¸ a sympathetic first-instance judge now has the foundation permitting him or her to ignore the Supreme Court’s decision in Multani and rule differently based on a variation of argument. In such a case, each side retains access to appellate courts to review such decisions, but the result is a jurisprudential uncertainty that can open the door to what previously would have been deemed unnecessary litigation (with the additional aspect of more litigation to tie up the already too busy courts). Additionally, Chief Justice McLachlin’s treatment of stare decisis provides judicial activists with the perfect platform for their activism.

Finally, and perhaps more problematic is that precedent no longer means what it once meant in Canada. As a lawyer, this makes it extremely difficult to properly advise clients on the status of the law with a sense of certainty. A significant part of my practice is devoted to religious freedom litigation and I often counsel people whose religious freedoms have been violated. Until Bedford, if a religious student was prohibited by their school board from wearing religious attire connected to their religious beliefs, I could quite comfortably point to the Multani decision and use that as a basis for my legal opinion. Now, if asked to provide an opinion on the same question, I cannot provide a definitive answer. My opinion or advice will have to include the stronger possibility of the Multani precedent being overturned – at any level of court or hearing body – if the school board presents an argument different from those made in Multani—and it’s a safe bet that any lawyer acting for a school board will.

As with many things, our legal system cannot properly function without a degree of certainty. There is already a measure of uncertainty in the practice law, otherwise we could not explain how the losing side to any litigation justified moving a case forward. In many cases however, the uncertainty relates to the very different facts of the case or the application of the law to the variation in the facts.

Because of stare decisis, lawyers can for example, (or could prior to Bedford) counsel clients with confidence on cases and issues which had already been decided by the courts. Again, the notion of stare decisis exists to create order, coherence and certainty in our legal system. I am convinced one of the consequences of the Bedford decision will be a turning of this legal principle on its head. There will be a checkerboard of decisions by lower courts across the country overturning decisions of the Supreme Court of Canada until the facts establish a case in which the Supreme Court can make a course correction.

As a lawyer whose practice is largely focused on constitutional litigation, with a particular interest in freedom of religion, I see endless opportunities to retry cases which I believe were decided improperly. The contrast to that of course, is that all of the cases I believe were decided correctly are also now up for grabs. This is true particularly in regard to social, political and religious issues where there has been – and perhaps is – a group or community push to change the law. The result, I conjecture, will be years, perhaps decades, of what will be deemed public interest litigation that will, in addition to being expensive, cause and create jurisprudential uncertainty and incoherence.

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Albertos Polizogopoulos is a Partner with the firm Vincent Dagenais Gibson LLP/s.r.l. in Ottawa, Ontario. He regularly appears before courts and appellate courts including the Supreme Court of Canada to advocate for his clients’ rights to freedom of religion, freedom of expression and parental authority. He also frequently appears in media interviews and on panels to discuss constitutional law. @CharterLaw