Reference Re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.) [1990] 1 S.C.R. 1123 Vagueness -- Criminal Code prohibiting communications in public for the purpose of prostitution and keeping of common bawdy-houses -- Whether the Code impermissibly vague – protection of economic rights-- Freedom of expression

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 and under s. 193 the keeping of common bawdy-house.

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

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Constitutional law -- Charter of Rights -- Fundamental justice -- Vagueness -- Criminal Code prohibiting under s. 195.1(1)(c) communications in public for the purpose of prostitution and under s. 193 the keeping of common bawdy-houses -- Whether ss. 193 and 195.1(1)(c) of the Code impermissibly vague -- Whether ss. 193 and 195.1(1)(c) infringe s. 7 of the Canadian Charter of Rights and Freedoms -- If so, whether limit imposed by ss. 193 and 195.1(1)(c) upon s. 7 justifiable under s. 1 of the Charter -- Whether s. 7 protects economic rights.

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 and under s. 193 the keeping of common bawdy-houses -- Whether ss. 193 and 195.1(1)(c) of the Code infringe s. 2(b) of the Canadian Charter of Rights and Freedoms -- If so, whether limit imposed by ss. 193 and 195.1(1)(c) upon s. 2(b) justifiable under s. 1 of the Charter.

Criminal law -- Prostitution -- Keeping common bawdy-house -- Criminal Code prohibiting under s. 195.1(1)(c) communications in public for the purpose of prostitution and under s. 193 the keeping of common bawdy-houses -- Whether ss. 193 and 195.1(1)(c) of the Code infringe ss. 2(b) and 7 of the Canadian Charter of Rights and Freedoms -- If so, whether limit imposed by ss. 193 and 195.1(1)(c) upon ss. 2(b) and 7 justifiable under s. 1 of the Charter.

The Lieutenant Governor in Council of Manitoba referred to the Court of Appeal of that province several constitutional questions to determine whether s. 193 or s. 195.1(1)(c) of the Criminal Code, or a combination of both, violates s. 2(b) or s. 7 of the Canadian Charter of Rights and Freedoms; and, if so, whether either one or a combination of both can be justified under s. 1 of the Charter. Section 193 prohibits the keeping of a common bawdy-house and s. 195.1(1)(c) prohibits a person from communicating or attempting to communicate with any person in a public place for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute. The Court of Appeal answered that s. 193 or s. 195.1(1)(c), or a combination of both, was not inconsistent with s. 2(b) or s. 7 of the Charter.

Held (Wilson and L'Heureux-Dubé JJ. dissenting): The appeal should be dismissed. Section 193 of the Code, separately or in combination with s. 195.1(1)(c), is not inconsistent with s. 2(b) of the Charter. Section 195.1(1)(c) of the Code is inconsistent with s. 2(b) of the Charter but is justifiable under s. 1 of the Charter. Sections 193 and 195.1(1)(c), separately or in combination, are not inconsistent with s. 7 of the Charter.

Per Dickson C.J. and La Forest and Sopinka JJ.: Section 195.1(1)(c) of the Code, but not s. 193, represents a prima facie infringement of s. 2(b) of the Charter. The scope of freedom of expression does extend to the activity of communication for the purpose of engaging in prostitution.

The limits on freedom of expression imposed by s. 195.1(1)(c) of the Code are justifiable under s. 1 of the Charter. Section 195.1(1)(c) is aimed at taking solicitation for the purposes of prostitution off the streets and out of public view and, to that end, seeks to eradicate the various forms of social nuisance arising from the public display of the sale of sex. These include street congestion, noise, harassment of non-participants and general detrimental effects on passers-by or bystanders, especially children. The legislation, however, does not attempt, at least in any direct manner, to address the exploitation, degradation and subordination of women that are part of the contemporary reality of prostitution. The elimination of street solicitation and the social nuisance which it creates is a government objective of sufficient importance to justify a limitation on the freedom of expression guaranteed by s. 2(b) of the Charter.

Further, the activity to which the impugned legislation is directed is expression with an economic purpose. Communications regarding an economic transaction of sex for money do not lie at, or even near, the core of the guarantee of freedom of expression. Considering the nature of the expression and the nature of the infringing legislation, the means embodied in s. 195.1(1)(c) of the Code are appropriately tailored to meet the government's objective. First, there is a rational connection between the impugned legislation and the prevention of the social nuisance associated with the public display of the sale of sex. Second, s. 195.1(1)(c) is not unduly intrusive. Although s. 195.1(1)(c) is not confined to places where there will necessarily be many people who will be offended by street solicitation, the section is not overly broad because the objective of the provision is not restricted to the control of actual disturbances or nuisances but extends to the general curtailment of visible solicitation for the purposes of prostitution. Also, the definition of communication may be wide but the courts are capable of restricting the meaning of "communication" in its context by reference to the purpose of the impugned legislation. Third, the effects of the legislation on freedom of expression are not so severe as to outweigh the government's pressing and substantial objective. The curtailment of street solicitation is in keeping with the interests of many in our society for whom the nuisance-related aspects of solicitation constitute serious problems. A legislative scheme aimed at street solicitation must be, in view of this Court's decision in Westendorp, of a criminal nature.

Given the possibility of imprisonment contemplated by ss. 193 and 195.1(1)(c) of the Code, these sections, separately or in combination, clearly infringe the right to liberty of the person included in s. 7 of the Charter, but such infringement is effected in accordance with the principles of fundamental justice. While vagueness should be recognized as contrary to the principles of fundamental justice, ss. 193 and 195.1(1)(c) are not so vague as to violate the requirement that the criminal law be clear. The terms "prostitution", "keeps" a bawdy-house, "communicate" and "attempts to communicate" are not so imprecise, given the benefit of judicial interpretation, that their meaning is impossible to discern in advance. Further, the fact that street solicitation is criminalized while prostitution per se remains legal does not offend the basic tenets of our legal system. Unless or until this Court is faced with the direct question of Parliament's competence to criminalize prostitution, nothing prohibits Parliament from using the criminal law to express society's disapprobation of street solicitation.

Per Lamer J.: Section 195.1(1)(c) of the Code restricts freedom of expression as guaranteed by s. 2(b) of the Charter. Section 2(b) protects all content of expression irrespective of the meaning or message sought to be conveyed. Most forms of expression are protected as well and the mere fact that a form has been criminalized does not take it beyond the reach of Charter protection. Only activities which convey a meaning or a message through a violent form of expression that directly attacks the physical liberty and integrity of another person would not be protected by s. 2(b). Where, as in this case, an activity conveys or attempts to convey a meaning or message through a non-violent form of expression, this activity falls within the sphere of conduct protected by s. 2(b). The government's purpose in enacting s. 195.1(1)(c) was to prohibit a particular content of expression and to prohibit access to the message sought to be conveyed. Section 195.1(1)(c) therefore imposed a limit on s. 2(b). In respect of s. 193 of the Code, since the appellants argued that s. 2(b) was violated by the combination of ss. 193 and 195.1(1)(c), there is no need to rely on s. 193 to reach the conclusion that a freedom under the Charter has been restricted.

Section 195.1(1)(c) of the Code constitutes a reasonable limit upon freedom of expression. The section was designed to prevent the nuisances caused by the public solicitation of prostitutes and their customers, including traffic congestion and general street disorder; to restrict the criminal activities related to prostitution such as possession and trafficking of drugs, violence and pimping; and also to control prostitution by minimizing the exposure to street solicitation of uninterested individuals, specially the young girls who could be lured into prostitution, an activity degrading to women, exploitive and, in some cases, dangerous. These legislative objectives are of sufficient importance for the purpose of s. 1 of the Charter to justify limiting freedom of expression. The means chosen by the government are also proportional to the objectives. First, the scheme set out in s. 195.1(1)(c) of the Code is rationally connected to the legislative objectives of curbing nuisances and related criminal activities associated with public solicitation for the purpose of prostitution. Second, s. 195.1(1)(c) interferes as little as possible with freedom of expression. While s. 195.1(1)(c) applies to all forms of communication, it is limited to communications made in public for the purpose of prostitution. This link between place and purpose in the legislation is reflective of the tailoring of the means used to the legislative objective of preventing the mischief that is produced by the public solicitation of sexual services. Parliament was faced with a myriad of views and options from which to choose of dealing with the problem of street solicitation for the purpose of prostitution and it is not the role of this Court to second-guess the wisdom of policy choices made by the legislator. Third, when one weighs the nature of the legislative objectives against the extent of the restriction on the freedom of expression, there is no disproportionality between the effects of s. 195.1(1)(c) and its objectives.

Sections 193 and 195.1(1)(c) of the Code do not infringe s. 7 of the Charter. While these sections have the potential to deprive one of liberty and security of the person upon conviction, they are not so vague as to offend the principles of fundamental justice. In neither case can it be said that fair notice of what is proscribed is not given to citizens. Courts in the past have been able to give sensible meaning to the terms used in these sections and have applied them without difficulty. This is indicative of an ascertainable standard of conduct. The discretion of law enforcement officials is thus sufficiently limited by the explicit legislative standards set out in the sections.

While prostitution is not illegal in Canada, ss. 193 and 195.1(1)(c) of the Code do not infringe prostitutes' right to liberty in not allowing them to exercise their chosen profession, or their right to security of the person in not permitting them to exercise their profession in order to provide the basic necessities of life. The rights to liberty and security of the person included in s. 7 of the Charter do not encompass the right to exercise a chosen profession. Section 7, like the rest of the Charter, with the possible exception of s. 6(2)(b) and (4), does not concern itself with economic rights. Section 7 is mainly concerned with the restrictions on liberty and security of the person which occur as a result of an individual's interaction with the justice system and its administration. Section 7 is implicated: when the state, by resorting to the justice system, restricts an individual's physical liberty in any circumstances; when the state restricts individuals' security of the person by interfering with, or removing from them, control over their physical or mental integrity; and, finally, when the state, either directly or through its agents, restricts certain privileges or liberties by using the threat of punishment in cases of non-compliance. A generous interpretation of the Charter that extends the full benefit of its protection to individuals is achieved without the incorporation of all other rights and freedoms in the Charter within s. 7.

Per Wilson and L'Heureux-Dubé JJ. (dissenting): Section 195.1(1)(c) of the Code infringes the guarantee of freedom of expression in s. 2(b) of the Charter. Commercial expression is protected by s. 2(b) and s. 195.1(1)(c) prohibits persons from communicating for an economic purpose -- namely, the sale of sexual services. Where, as in this case, the state is concerned about the harmful consequences that flow from communicative activity with an economic purpose and where, rather than address those consequences directly, the legislature simply proscribes the content of communicative activity, the provision, if it is to be upheld, must be justified as a reasonable limit under s. 1 of the Charter.

Section 193 of the Code, either on its own or in combination with s. 195.1(1)(c), does not infringe the guarantee of freedom of expression. Section 193 deals with keeping or being associated with a common bawdy-house and places no constraints on communicative activity in relation to a common bawdy-house. The word "expression" in s. 2(b) is not so broad as to capture activities such as keeping a common bawdy-house.

Section 195.1(1)(c) of the Code is not justifiable under s. 1 of the Charter. Section 195.1(1)(c) was not designed to criminalize prostitution per se or to stamp out all the ills and vices that flow from prostitution such as drug addiction or juvenile prostitution. The legislation was designed only to deal with the social nuisance arising from the public display of the sale of sex. The high visibility of this activity is offensive and has harmful effects on those compelled to witness it, especially children. While the legislative objective is sufficiently important to warrant overriding a constitutional freedom, s. 195.1(1)(c) fails to meet the proportionality test. The measures are rationally connected to the prevention of public nuisance caused by street solicitation, but s. 195.1(1)(c) is not sufficiently tailored to the objective and constitutes a more serious impairment of the individual's freedom than the avowed legislative objective would warrant. The prohibition is not confined to places where there will necessarily be lots of people to be offended or inconvenienced by it, and no nuisance or adverse impact of any kind on other people need be shown, or even be shown to be a possibility, in order that the offence be complete. Further, the broad scope of the phrase "in any manner communicate or attempt to communicate" seems to encompass every conceivable method of human expression. Some definitional limits would appear to be desirable in any activity labelled as criminal. To render criminal the communicative acts of persons engaged in a lawful activity which is not shown to be harming anybody cannot be justified by the legislative objective advanced in its support.

Sections 193 and 195.1(1)(c) of the Code infringe the right to liberty of the person in s. 7 of the Charter because a person convicted under these sections faces a possible prison sentence. But ss. 193 and 195.1(1)(c) are not so vague as to fail to accord with the principles of fundamental justice. These sections, read on their own or together, do not violate the requirement that the criminal law be clear. Courts have been called upon to interpret some of the terms used in these sections, but courts are regularly called upon to resolve ambiguities in legislation. This does not necessarily make such legislation vulnerable to constitutional attack.

However, where a law infringes the right to liberty under s. 7 in a way that also infringes another constitutionally entrenched right (which infringement is not saved by s. 1), such law cannot be said to accord with the principles of fundamental justice. All the guarantees contained in the Charter are "basic tenets of our legal system" and required to be protected by the judiciary. Section 195.1(1)(c) which violates the guarantee of freedom of expression in s. 2(b) and infringes the right to liberty in s. 7, must be justified as a reasonable limit under s. 1 of the Charter. Section 193 does not violate s. 2(b) and, while s. 193 infringes a person's right to liberty through the threat of imprisonment, absent the infringement of some other Charter guarantee, this particular deprivation of liberty does not violate a principle of fundamental justice. Nor are ss. 193 and 195.1(1)(c) so intimately linked as to be part of a single legislative scheme enabling one to say that because part of the scheme violates a principle of fundamental justice the whole scheme violates that principle.

Section 195.1(1)(c) of the Code is not justifiable under s. 1 of the Charter. Curbing the public nuisance caused by street solicitation is a legislative objective of sufficient importance for the purpose of s. 1 and the measures are rationally connected to the objective. But to imprison people for exercising their constitutionally protected freedom of expression, even if they are exercising it for purposes of prostitution, is not a proportionate way of dealing with the objective. Where communication is a lawful activity and prostitution is also a lawful activity, the legislative response of imprisonment is far too drastic.

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