Prostitution case stayed

Bedford v. Canada (Attorney General), 2010 ONCA 814.

As expected the prostitution decision was stayed. The Court writes:

[9]               The test for granting a stay pending appeal is set down in RJR-MacDonald.  The court must be satisfied that:

(i)        There is a serious issue to be tried;

(ii)       The party seeking the stay would suffer irreparable harm should the stay not be granted; and

(iii)     The balance of convenience and public interest considerations favour a stay.

[10]          The first part of the test has been satisfied; it is not disputed by the respondents that the issue before the court is a serious issue. The focus of the analysis will be on stages two and three of the RJR-MacDonald test.  In cases involving the constitutionality of legislation, irreparable harm and balance of convenience tend to blend together and they are often considered together.  This blending of the two stages in cases involving the constitutionality of legislation is understandable because the public interest is engaged at both stages: RJR-MacDonald, at p. 349.

[11]          RJR-MacDonald instructs a motion judge that, in Charter cases, the onus of demonstrating irreparable harm to the public interest is less on a public authority than on a private applicant: p. 346.

[12]           At the balance of convenience stage, I must determine which of the two parties will suffer the greater harm from the granting or refusal of the stay: RJR-MacDonald at p. 342.  In constitutional cases, the public interest is a "special factor" that must be considered in assessing where the balance of convenience lies: p. 343.  As I will explain more fully below, while the Attorney General does not have a monopoly on the public interest,  a private party relying on the public interest to justify continuing suspension of legislation must, at the balance of convenience stage, demonstrate that the "suspension of the legislation would itself provide a public benefit": RJR-MacDonald at p. 349.

[13]          Therefore, unlike the application judge, I must determine whether a stay should be granted in a context where (1) there is a prima facie right of the government to a full review of the first-level decision; (2) the government has a presumption of irreparable harm if the judgment is not stayed pending that review; and (3) the responding parties must demonstrate that suspension of the legislation would provide a public benefit to tip the public interest component of the balance of convenience in their favour.

[14]          This application is particularly difficult because of the findings made by the application judge concerning the link between the impugned provisions and the violence suffered by prostitutes.  The application judge found that the applicants had established that there are ways in which the risk of violence towards prostitutes can be reduced but that the impugned provisions throw up barriers, enforced by criminal sanction, that prevent prostitutes from taking measures that could reduce the risk of violence. 

[15]          There are obvious advantages to maintaining the status quo by staying the judgment.  A stay will minimize public confusion about the state of the law in Ontario; for the time being the law in Ontario will be the same as in the rest of Canada.  The police will be able to continue to use the tools associated with enforcement of the law that they say provides some safety to prostitutes, especially those working on the streets.  The various levels of government will have the opportunity, should they choose to do so, to consider a legislative response to the judgment, which might be better informed following a full review by this court of the application judge's decision.  Further, if a legislative response is required, sufficient time is needed because a response may be difficult to design not only because of the complexity of the issues surrounding prostitution but because of the uncertainty of the role of the province and municipalities in light of the Supreme Court of Canada's decision in Westendorp v. The Queen, [1983] 1 S.C.R. 43.  In that case, the court struck down a municipal by-law directed at control of street prostitution.

[16]          On the other hand, maintaining the status quo will leave in place a legislative framework that the application judge found seriously impacts on the physical security of a group of people, mostly women, who are pursuing an occupation that is not per se illegal.  While it is not my task to review the correctness of the application judge's decision, I cannot simply ignore those findings as they may inform the test for granting a stay.  I am also conscious of the application judge's concern about staying the judgment as expressed at para. 2 of her reasons on October 15, 2010, granting a further temporary stay:

I expressed to counsel that I was concerned about extending the period of stay in light of my findings that the impugned provisions were being rarely enforced or were ineffective and that the law as it stands is currently contributing to danger faced by prostitutes. However, because all the parties consented and the extension was only for an additional thirty days, I am exercising my discretion and granting a stay of my judgement that the provisions are unconstitutional and should be of no force and effect, for an additional thirty days.