Beyond Decriminalization: Sex-work, Human Rights and a New ...

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PIVOT LEGAL SOCIETYSome aspects of federal jurisdiction would still apply to prostitution, as it does to other workers,such unemployment insurance, and the raising of money by any mode or system of taxation. However, most of the existing laws that would apply to the sex industry are provincial, or have beendelegated by the provinces to their municipal governments. Provincial powers and sex workIn a completely decriminalized context, the provinces would have the authority to apply existinglegislation as a way of regulating some aspects of prostitution. The provinces may also choose to createnew legislation that is specific to prostitution.Limitations on provincial government powersThere are limitations on the provincial power to legislate in the area of prostitution. For example,provinces cannot intrude on the federal power over “crime,” and they cannot regulate morality. Inaddition, Charter constraints and the doctrine of paramountcy may apply.Provinces cannot regulate moralityAlthough provinces do not have the power to enact penal provisions, they are entitled under s.92(15) of the Constitution Act, 1867 to create offences in order to enforce any laws with respect to alls. 92 enumerations. Such provincial offences would have to serve provincial legislative purposes andcannot be attempts to encroach upon the federal authority over crime.Because of the federal authority over crime, provinces are not permitted to regulate morality andpublic order. In other words, provinces cannot enact legislation that contains a prohibition, a penaltyand attempts to achieve a criminal public purpose. In the Supreme Court of Canada decision, Referencere: Dairy Industry Act (Canada) s. 5(a), the court defined a crime as, “an act which the law, withappropriate penal sanctions, forbids; but as prohibitions are not enacted in a vacuum, we can properlylook for some evil or injurious or undesirable effect upon the public against which the law is directed.That effect may be in relation to social, economic or political interests; and the legislature has had inmind to suppress the evil or to safeguard the interest threatened.” In Westendorp v. The Queen, 10 the Supreme Court of Canada held that a Calgary municipal by-lawprohibiting prostitution was unconstitutional because the city and the province did not have thejurisdiction to enact legislation to control street prostitution, which at that time was prohibited byCriminal Code s. 195.1. 11 The City of Calgary attempted to enact this by-law as within its power toregulate the streets, but the court found it to be a colourable attempt to punish prostitution, and thatwas not within its constitutional jurisdiction. Similarly, in Goldwax v. Montreal (City), 12 a City ofMontreal municipal by-law forbidding any person from remaining in a public place for purposes ofprostitution or approaching another person for that purpose was deemed to be unconstitutional.s.92(16) generally all matters of a merely local or private nature in the province. Constitution Act, 1867 s.91(2)(a). Ibid. at s.91(3). Ibid. at s.92(8) gives provinces authority over municipal dealings. Ibid. at s.92(15): The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made inrelation to any Matter coming within any of the Classes of Subjects enumerated in this Section. The Reference as to the Validity of Section 5(a) of the Dairy Industry Act (Margarine Reference), [1949] S.C.R. 1, aff’d [1951] A.C.179. Also, see for example R. v. Morgentaler, [1993] 3 S.C.R. 463. In this case, Nova Scotia enacted legislation prohibiting the privatedelivery of abortion after the decriminalization of this service in 1988 (R. v. Morgentaler, [1988] 1 S.C.R. 30). Reference re: Dairy Industry Act (Canada) S. 5(a) [1949] S.C.R. 1.10 Westendorp v. The Queen [1983] 1 S.C.R. 43.11 Criminal Code, R.S., c. C-34 [Criminal Code].12 Goldwax v. Montreal (City) [1984] 2 S.C.R. 525.226
BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law ReformIn a more recent case involving licensing and regulation of body rub massage parlours, Pimenova v.Brampton (City), 13 the city sought to place a number of restrictions on these establishments, includinglimiting the number of parlours to eight, despite the fact that 16 such licenses already existed. TheCity of Brampton took the position that it was within its municipal jurisdiction to enact theseby-laws. The Ontario Superior Court ruled that the section of the by-law regulating the number offacilities was in City’s jurisdiction. However, the sections of the by-law regulating dress and physicalcontact in the parlours were deemed to be unconstitutional because they represented an attempt toregulate morality, thereby intruding into the federal power over crime. Two other sections dealingwith limitations on the transfer of licenses and on hours of operation were found to be discriminatoryand unfair, and struck down.Human rights legislationProtections against discriminatory legislation created by the provinces include the CanadianCharter of Rights and Freedoms 14 and provincial Human Rights Codes. In the context of prostitution,it could be argued that overly stringent and unreasonable limitations on advertising by sex workers arein violation of their s. 2(b) right to freedom of expression under the Charter. 15ParamountcyThe doctrine of paramountcy holds that otherwise valid provincial legislation will be renderedinoperative where it is found to be inconsistent with a valid federal law. Where there is no inconsistency,both laws operate concurrently. Paramountcy may therefore be a relevant consideration even ifthe criminal laws surrounding prostitution are not completely repealed, and certain aspects of prostitutionremain under criminal jurisdiction.However, it should be cautioned that the determination of validity and paramountcy of legislationis inconsistent across provinces, and depends on the specific wording of the legislation in question.For example, in the context of provincial prohibitions against possession of the drug LSD withinAlberta and B.C.’s respective Health Acts, the relevant Courts of Appeal came to opposite conclusionsregarding the validity of the legislation. 16 In Alberta, provincial prohibition was deemed to be validbecause it related to public health, a provincial jurisdiction. In B.C., similar legislation was held to beinvalid, because it relates to a matter of criminal law, thus falling under federal jurisdiction. In a 1987case pertaining to strip clubs, an attempt by New Brunswick’s Liquor Licensing Board to impose aprohibition on nude entertainment was deemed intra vires the province as a legitimate regulation oflocal industry. 17 And while the provincial legislation dealt with an activity that falls under theCriminal Code, there was no express conflict or intrusion, so paramountcy was not invoked.National standardsThe overall ability of the provinces to regulate those aspects of prostitution that fall under theirs. 92 enumerated power – although limited in some respects – means that it would be difficult, if notimpossible, to ensure a national set of standards and objectives regarding prostitution. For example,Sectuib 3 of New Zealand’s Act, sets out its purpose:13 Pimenova v. Brampton (City) [2004] O.J. No. 2450.14 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being schedule B to the Canada Act 1982 (U.K.),1982, c. 11 [hereinafter referred to as the Charter].15 Ibid. at s.2(b).16 Regina v. Snyder and Fletcher (1967) 61 W.W.R. 112 and 576 (Alta. C.A.) compared to Regina v. Simpson, Mack and Lewis (1969)1 D.L.R. (3rd) 597, 1196913 C.C.C. 101 (B.C.C.A.).17 Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), [1987] 2 S.C.R. 59.227
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Beyond Decriminalization: Sex-work, Human Rights and a New ...

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