Having spent the day mulling it over, I
‘m haven’t fully decided about Bedford. I do consider it a victory on the facts and for this cause. I mean that I haven’t decided on the map the court used to get there – what does it mean for the future on this issue and the ones that will follow. Below are a list of four things that I think we should be thinking about – followed preceded by a very small round up of links.
I haven’t done an overview here. I can’t even begin (for reasons of time but also volume) to collect all the commentary that has come out today. But I will say that along with the commentary – including law profs Brenda Cossman , Angela Campbell and Michael Plaxton in the Globe, Carissima Mathen in the Ottawa Citizen, PIVOT’s summary (PIVOT is a Vancouver social change legal organization which intervened on the case against the government) NWAC’s press release (Native Women’s Association of Canada, who intervened against striking down the challenged laws), mentions of Canada in US law blawgs (here, from Canada-phile @robsonconlaw) and @cmathen’s twitter feed all day long – you should read the decision. It is not a monster. It is, as these things go, a model of clarity and guidance (with caveat below). Find it here.
The last three paragraphs of the case (full text here) might be the most troubling. Having accepted and described the harms that these laws cause – having raised the spectre of Pickton in that analysis – the Court via the Chief sets up the opposite side. That is, a “concerned public”. She does not, here, describe precisely what those “many Canadians” would be greatly concerned about. But it is enough to justify “increased risk” to prostitutes [para 168], apparently because although “neither alternative is without difficulty”, the declaration of invalidity is suspended. 
In anticipation of inevitable teeth gnashing I just want to note it is rare for #SCC to invalidate criminal offenses outright
— Carissima Mathen (@cmathen) December 20, 2013
Alright, @cmathen, you are correct of course. My point is not so much that the Court should not have done this – but rather let’s talk about what is really going on in that three sentence paragraph 169. Why take this approach? Is this pragmatism? I see no one on social media or in op eds raising the thought of section 33 (the override). The “dialogue” that a suspended declaration is usually said to create is one way of mitigating claims about activist courts usurping the role of the legislature. It is useful to think more about the extra-doctrinal reasoning, the reasons not provided, because clearly there is something wrong with the doctrinal logic of this suspension.
My favourite trope in Charter cases: Choice! And here we see the court taking on facile arguments about choice in wonderful ways [para 79 through 92]. The AG’s (Ontario and Canada) take a bit of a beating for their positions about the causal connection between the law and the harms the court is recognizing.
 The Attorneys General of Canada and Ontario argue that prostitutes choose to engage in an inherently risky activity. They can avoid both the risk inherent in prostitution and any increased risk that the laws impose simply by choosing not to engage in this activity. They say that choice — and not the law — is the real cause of their injury.
Paragraph 86 represents a relatively complete picture of the complexity of choice and sex work. It is, in many ways, this picture which makes debates over sex work so fraught within feminist communities. Some choose it – others cannot be said to do so.
 …., while some prostitutes may fit the description of persons who freely choose (or at one time chose) to engage in the risky economic activity of prostitution, many prostitutes have no meaningful choice but to do so. Ms. Bedford herself stated that she initially prostituted herself “to make enough money to at least feed myself” (cross-examination of Ms. Bedford, J.A.R., vol. 2, at p. 92). As the application judge found, street prostitutes, with some exceptions, are a particularly marginalized population (paras. 458 and 472). Whether because of financial desperation, drug addictions, mental illness, or compulsion from pimps, they often have little choice but to sell their bodies for money. Realistically, while they may retain some minimal power of choice — what the Attorney General of Canada called “constrained choice” (transcript, at p. 22) — these are not people who can be said to be truly “choosing” a risky line of business (see PHS, at paras. 97-101).
Here is another piece of the fraught feminism around choice and sex work, referenced in para 87, which also contains the greatest SCC analogy (another of my hot button issues!) of all time or at least of 2013:
 Second, even accepting that there are those who freely choose to engage in prostitution, it must be remembered that prostitution — the exchange of sex for money — is not illegal. The causal question is whether the impugned laws make this lawful activity more dangerous. An analogy could be drawn to a law preventing a cyclist from wearing a helmet. That the cyclist chooses to ride her bike does not diminish the causal role of the law in making that activity riskier. The challenged laws relating to prostitution are no different.
Actually, there is of course another piece of the choice puzzle, and that’s the choice and role not of the seller but the buyer – but that was not at issue in this case. It will, of course, be unavoidable in the debate over what to do next.
My interest in choice goes beyond this case. It’s been a discourse that the Court has used in a number of cases to sink section 15 challenges. Seeing it taken on so clearly here – treated as a complex issue – is a relief.
3. Appointments & Mr. Harper
I can’t make this point any more clear than Osgoode student Avnish Nanda did via twitter:
Hope Bedford decision puts nail in coffin of the Harper Appointee and Non-Harper Appointee narrative for assessing potential SCC outcomes.
— Avnish Nanda (@avnishnanda) December 20, 2013
That’s not the whole story – but it’s a big part of it. We’re not at defcon 5 (Bush v. Gore style) yet with this Court, not even close.
To have a unanimous decision like this will make consensus builder McLachlin C.J. happy. But this doesn’t look like a “split the difference, everyone gets something” consensus, unless you see the suspension as the split difference. This looks like a clear message to Parliament about lines and limits.
4. Stare Decisis & Deference to Trial Judges on Social & Legislative Facts
There is much to be said about what happens starting at para 38, as we examine whether conclusions in earlier cases can be “revisited”  or “departed from”  (hmmm, not “overruled”?). It’s a sign, perhaps, that we’ve had the Charter a while now that the Court now must say both:
 Certainty in the law requires that courts follow and apply authoritative precedents. Indeed, this is the foundational principle upon which the common law relies.
 ….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.
Likewise, the CJC notes that the SCC’s position on deference to the Trial Judge on social and legislative facts (starts at para 48) has shifted as we entered the Charter era:
 As the Attorney General of Canada points out, this Court’s decision in RJR-MacDonald Inc. v. Canada (Attorney General),  3 S.C.R. 199, suggested that legislative fact findings are owed less deference. However, the use of social science evidence in Charter litigation has evolved significantly since RJR-MacDonald was decided. In the intervening years, this Court has expressed a preference for social science evidence to be presented through an expert witness (R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74,  3 S.C.R. 571, at paras. 26-28; R. v. Spence, 2005 SCC 71,  3 S.C.R. 458, at para. 68). The assessment of expert evidence relies heavily on the trial judge (R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at paras. 62-96). This is particularly so in the wake of the Ontario report by Justice Goudge, which emphasized the role of the trial judge in preventing miscarriages of justice flowing from flawed expert evidence (Inquiry into Pediatric Forensic Pathology in Ontario: Report, vol. 3, Policy and Recommendations (2008)). The distinction between adjudicative and legislative facts can no longer justify gradations of deference.
This makes me think about the incredible burden that many critical cases place on litigants and lawyers. There was voluminous evidence in this case – bravo to the lawyers and others who put this all together, and to the Trial Judge (a former Deputy AG Ontario, Justice Susan Himel) who wrote a decision that could stand up to all the scrutiny, that carefully detailed how she weighed the evidence. Have a look at a case like Inglis v. British Columbia (Minister of Public Safety), 2013 BCSC 2309 – again, a long decision, significant evidence, written by a judge no stranger to this kind of evidence (I understand Justice Carol Ross has a background in sociology – she also wrote the original decision in Victoria v. Adams 2008 BCSC 1363). Consider the 1416 paragraph BCSC decision in Carter, the right to die case) by Justice Lynn Smith (hmmm, lots of women judges here). At any rate, these aren’t cases that walk into your office one day. They are cases put together piece by painstaking piece. It’s a long road to justice this way around, folks.
The last thing I need to think about, of course, is – is there a way that the doctrines created here will be applied that I need to start worrying about? At this point, I’m just anticipating the next ten years as a slow retreat from this high water mark of rights-protection. I’m a bit of a pessimist.
I’m not, here, really writing about the substance of the case. I do completely agree with the basic theory as captured by the helmet analogy (see bottom of this post). And like many others, I was struck by the fierce language the CJC uses to illustrate the very real harm done by these laws, by the references to Grandma’s House (para 64, and especially 136 “A law that prevents street prostitutes from resorting to a safe haven such as Grandma’s House while a suspected serial killer prowls the streets, is a law that has lost sight of its purpose”) by the assertion that the ability to “screen” through direct communication is relevant if the practice “could have prevented one woman from jumping into Robert Pickton’s car” (para 158). I admit that during this case, I was sometimes made uncomfortable by the variety of things which were being asserted through reference to the desperate and deadly situation in Vancouver’s DTES during the time Pickton was murdering women he picked up there. I heard these arguments made in ways that seemed to me sensationalized – almost exploitative, and I felt uncomfortable with them – but I also heard them made with despair and rage. In this judgment, I see these arguments accepted because of the way that the women who died at Pickton’s hand are women who might have been saved but for these laws – women with rights, women whose chances to save themselves mattered then, and now. That’s something.