TORONTO, ON July 9, 2009 (CCRL) – The Catholic Civil Rights League, and co-applicants Christian Legal Fellowship and REAL Women of Canada, have been denied intervenor status in the constitutional challenge to Canada’s prostitution laws.
The challenge, originally commenced in Ontario and British Columbia, seeks to strike down sections of the Criminal Code dealing with keeping a common bawdy house, living off the avails of prostitution, and communicating for the purpose of prostitution, on the grounds that the provisions violate the Charter’s guarantees of life, liberty and security of the person (Section 7), and freedom of expression, including freedom of the press and other media of communication (Section 2).
The group applied to intervene as a “friend of the court”, citing its individual and collective experience of active involvement in matters of public policy and law, especially Charter cases that have had an impact on family, marriage, children and the impact of social change on families.
Had friend of the court status been granted, their participation would have consisted of filing a factum and making oral submissions. The application noted: “In this proceeding, this Court is being asked to consider matters which will have a profound effect on the civil liberties and morality of people with religious views on controversial moral questions. This application involves important issues that transcend the immediate interests of the parties. The Intervenors believe that they can provide the Court with a unique perspective that would be useful to it in considering the constitutionality of the laws regulating prostitution.”
Their application pointed out that they have intervened, collectively or separately, in 14 other court cases. In addition, Gwen Landolt of REAL Women made submissions before the Subcommittee on Solicitation Laws, of the House of Commons Standing Committee on Justice, human Rights, Public Safety and Emergency Preparedness. That hearing canvassed many of the issues raised by this case.
The respondent, the office of the Attorney-General for Ontario, did not oppose the motion, noting that the groups may have a perspective that is different from the respondent and may be of assistance to the court. The sex trade applicants, however, maintained that since they intended to focus on the safety and security of those working as prostitutes, the group would not be able to make a useful contribution. The applicants’ lawyer also asserted that the group’s intention to address “spiritual and moral values underlying the prohibition on prostitution is both irrelevant and distracting because the Supreme Court of Canada has already held that legal moralism is not a proper foundation to justify the enactment of a criminal prohibition.”
In denying the application, the judge wrote that he was not satisfied that the group understood the role of an intervenor under friend-of-the-court provisions, and how it differs from appearing before Parliamentary committees, despite a long history of such court engagements. He also said they had not given enough description of the arguments they had planned to put forward in their submissions (despite the summary that had been provided), and that they had not shown any expertise or special knowledge that would entitle them to advance any arguments on issues that might be ruled relevant at the hearing.
The judgment also stated, “I am concerned that the participation of the moving parties at the hearing of the application “as a friend of the court” might reasonably create the appearance that the Court had, without justification, entered into a special relationship with the moving parties and had provided them with a public platform to advance certain principles which they support, some of which would undoubtedly be very controversial and would reflect the views of only small segments on Canadian society.” This statement ignores the fact that previous interventions have occurred without any confusion as to the fact that intervenors were deemed to be “friends” of the court. The balance of the statement is an awkward if premature presumption as to what constitutes public opinion.
The group is contemplating a possible appeal of the decision.