R. v. Skinner [1990] 1 S.C.R. 1235: Freedom of association - Criminal Code prohibiting communications in public for the purpose of prostitution - Freedom of expression

Present: Dickson C.J. and McIntyre , Lamer, Wilson, La Forest, L'Heureux-Dubé and Sopinka JJ.

ON APPEAL FROM THE NOVA SCOTIA SUPREME COURT, APPEAL DIVISION

Constitutional law - Charter of Rights - Freedom of expression - Criminal Code prohibiting under s. 195.1(1)(c) communications in public for the purpose of prostitution - Whether s. 195.1(1)(c) of the Code infringes s. 2(b) of the Canadian Charter of Rights and Freedoms - If so, whether limit imposed by s. 195.1(1)(c) upon s. 2(b) justifiable under s. 1 of the Charter.

Constitutional law - Charter of Rights - Freedom of association - Criminal Code prohibiting under s. 195.1(1)(c) communications in public for the purpose of prostitution - Whether s. 195.1(1)(c) of the Code infringes s. 2(d) of the Canadian Charter of Rights and Freedoms.

Criminal law - Prostitution - Criminal Code prohibiting under s. 195.1(1)(c) communications in public for the purpose of prostitution - Whether s. 195.1(1)(c) of the Code infringes the freedoms of expression and of association guaranteed by ss. 2(b) and 2(d) of the Canadian Charter of Rights and Freedoms.

The respondent was charged with "communicating in a public place for the purpose of obtaining the sexual services of a prostitute" contrary to s. 195.1(1)(c) of the Criminal Code. The trial judge convicted the respondent but the Court of Appeal set aside the conviction holding that s. 195.1(1)(c) infringed the guarantee of freedom of expression in s. 2(b) of the Canadian Charter of Rights and Freedoms, and that s. 195.1(1)(c) was not justifiable under s. 1 of the Charter. The court also suggested that s. 195.1(1)(c) violated the guarantee of freedom of association in s. 2(d) of the Charter. This appeal is to determine whether s. 195.1(1)(c) of the Code infringes s. 2(b) or (d) of the Charter; and, if so, whether s. 195.1(1)(c) is justifiable under s. 1 of the Charter.

Held (Wilson and L'Heureux-Dubé JJ. dissenting): The appeal should be allowed.

Per Dickson C.J. and La Forest and Sopinka JJ.: Section 195.1(1)(c) of the Code does not infringe s. 2(d) of the Charter. In proscribing street solicitation for the purposes of prostitution, s. 195.1(1)(c) attacks expressive activity of a commercial nature. It focuses on the prostitute or customer who stops or communicates with another person in a public place for the purposes of engaging in prostitution. The target of s. 195.1(1)(c), therefore, is expressive conduct and not conduct of an associational nature. The section does not directly proscribe an agreement between two individuals for the exchange of sex for money, nor sexual relations between consenting individuals. The mere fact that an impugned legislative provision limits the possibility of commercial activities or agreements is not sufficient to show a prima facie interference with s. 2(d).

For the reasons given by the Chief Justice in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), s. 195.1(1)(c) of the Code infringes s. 2(b) of the Charter but is justifiable under s. 1 of the Charter.

Per Lamer J.: For the reasons given by the Chief Justice, s. 195.1(1)(c) of the Criminal Code does not infringe s. 2(d) of the Charter. For the reasons I gave in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), s. 195.1(1)(c) of the Code infringes s. 2(b) of the Charter but is justifiable under s. 1 of the Charter.

Per Wilson and L'Heureux-Dubé JJ. (dissenting): For the reasons given by the minority in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), s. 195.1(1)(c) of the Criminal Code infringes the right to freedom of expression guaranteed by s. 2(b) of the Charter and is not saved by s. 1 of the Charter.

Section 195.1(1)(c) of the Code also infringes the right to freedom of association guaranteed by s. 2(d) of the Charter. A provision which prohibits parties from associating with a view to pursuing a lawful common objective infringes s. 2(d), whether that objective is entry into a commercial transaction or some other lawful objective. In considering whether or not a given activity is protected under s. 2(d), the Court must have regard to how that activity is pursued rather than to the nature of the activity. In the present context, prostitutes and potential customers associate when they meet to discuss the sale of sex. That meeting is the form their association takes and this is what s. 2(d) protects, not the activity in which they intend to engage thereafter. So long as it remains lawful to sell sex for money, there is a right to associate with others in order to reach an agreement for this purpose. Section 195.1(1)(c) of the Code, which seeks to prohibit both the meetings and the communications between prostitutes and potential customers, infringes freedom of association as well as freedom of expression. Even if the legislature's purpose in enacting s. 195.1(1)(c) was not to restrict freedom of association, that is clearly the effect of the legislation. Section 195.1(1)(c) interferes directly with a prostitute's ability to associate with potential customers.

Section 195.1(1)(c) is not justifiable under s. 1 of the Charter. While the nuisance caused by street solicitation, at least in the major population centres in Canada, is a pressing and substantial concern warranting a limitation on freedom of association, s. 195.1(1)(c) fails to meet the proportionality test. The measures are rationally connected to the prevention of the nuisance, but s. 195.1(1)(c) is too broad and not sufficiently tailored to the objective. In view of the expansive meaning given to the expression "public place" in s. 195.1(2) of the Code, s. 195.1(1)(c) prevents a prostitute and potential customer from associating in a wide range of circumstances in which no nuisance will result from their meeting together. It is not reasonable to prohibit associational activity that harms no one on the basis that in some circumstances and in some areas a high concentration of that activity may give rise to a public or social nuisance. If such activity is to be prohibited, there must be a much closer nexus between the associational activity that is prohibited and the nuisance to which it is alleged to give rise.

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