Sex-worker Case: Why the Government Appeal is a Good Thing

Only a day after the Superior Court ruling was handed down, the Provincial and Federal governments have appealed the ruling that makes prostitution laws unconstitutional. This is exactly what is needed. To understand why, you must understand how the justice system in Canada works.

 

The judicial system in Canada is based on the principle of stare decisis, otherwise known as precedents. What this means is that courts are obligated to follow the decisions laid out by court levels superior to them in their jurisdiction, but are merely informed by the equivalent courts or courts of appeal in other provinces. In Ontario the 3 major levels of court are the Superior Court, which is subordinated to the Court of Appeal, which is subordinated to the Supreme Court of Canada (SCC). The equivalent of the Superior Court in any other province are not bound by this decision. If the Court of Appeal upholds the judgment, then it will be the law, but only in Ontario. If this judgment wasn’t appealed, only Ontario would have to abide by the ruling, and it would be iffy at best. The decision of the Court of Appeal is a crapshoot in my opinion. They may uphold the ruling, or they may overturn it. Ultimately, in my opinion, the Court of Appeal decision doesn’t matter. My belief is that this case is going to go to the SCC, which only hears cases that involve a question of public importance or raise an important issue of law.

 

One has to understand that the wheels of justice turn slowly. Another seminal decision by the SCC, R v Morgentaler ([1988] 1 S.C.R. 30) was heard in the Ontario Court of Appeal and a judgment was released by that Court in 1985, before the 1988 judgment of the SCC. In all likelihood it will be another 5+ years before the SCC releases a judgment in this current case. Based on the current makeup of the court, I fully expect that the trial judge’s ruling will be upheld. We have a very liberal court, lead by the formidable Chief Justice Beverley McLachlin. That being said, in the next few years, a number of the current justices are eligible for retirement. This doesn’t mean that they will retire, but they may. 

 

Even though things are uncertain, I truly believe that the SCC will uphold this ruling and prostitution in Canada will become safer. So it is a good thing that the government is appealing.

**Correction: because this ruling affects Federal law, the Criminal Code, it does apply throughout Canada. That being said, judgments from the Supreme Court are better because they tend to do a better job outlining what is acceptable/unacceptable, and since they are the final court of the land, there is no going over them. For lack of a better word, SCC judgments are more permanent – only the SCC can overturn its own judgments.