Is the proposed prostitution law constitutional?

Could we get an opinion from the justice department?

The NDP has asked that the Harper government send the new prostitution legislation off to the Supreme Court posthaste, which would at least have the benefit of skipping us ahead to the inevitable destination of C-36. Alas, the government doesn’t seem much interested in referring the matter directly to the Court.

But what about at least engaging seriously with the debate about whether this bill will pass constitutional muster?

On Thursday, NDP justice critic Francoise Boivin gave the government another option: release the legal opinions it received before introducing C-36. In response, Justice Minister Peter MacKay seemed at first to suggest he would do so, but then he seemed to construe legal opinions as the public consultations his government sought.

Speaking to reporters a day later, Mr. MacKay, asked about the constitutionality of the legislation, nonetheless boasted of the justice department’s review of the bill.

We feel that it does pass constitutional muster. We have many experts within the department that have examined it for that sole purpose.

The constitutionality of legislation put before the House is actually a matter of legal dispute—justice department lawyer Ed Schmidt currently challenging the government in court on this count.

Both sides agree that the Minister of Justice has a duty to report to the House of Commons if proposed legislation or regulations are inconsistent with the Charter. Where Mr. Schmidt and his superiors disagree is over how that requirement should be interpreted.

Mr. Schmidt argues that Parliament originally expected the test for this would be whether, on balance, a measure is likely not in compliance. However Mr. Schmidt says that since as far back as 1993, government lawyers have been directed to approve all measures as long as they can imagine an argument in favour of compliance that would have a 5 per cent chance of success. The government does not confirm this, arguing any internal instructions must be kept secret as solicitor client privilege and cabinet confidences.

NDP MP Pat Martin raised a concern about this last March, arguing that his privileges as an MP were being infringed upon as a result. Liberal MP Irwin Cotler subsequently tabled a bill in the House that would have the law clerk of the House of Commons review bills and report any likely inconsistencies to Parliament.

If it is determined that any of the provisions of a bill examined in accordance with section 3 is likely to be inconsistent with the purposes and provisions of the statutes referred to in that section, the Law Clerk and Parliamentary Counsel who reviewed the bill must submit a report, in both official languages, to the Speaker of the Senate or the Speaker of the House of Commons, as the case may be, identifying the provisions of the bill that are likely to be inconsistent with the relevant statute and providing a brief summary of the reasons for the determination.

The Harper government, of course, has had several pieces of its legislation struck down by the Supreme Court—the changes it made to the Supreme Court Act around Marc Nadon’s appointment, a change to parole rules, a change to pre-sentencing credit and major portions of the government’s Senate reform proposals. Other laws passed over the last eight years might still end up in front of the Court.

Of course, if an unconstitutional bill is passed by Parliament, the courts will conceivably remedy that eventually. But there might be something to be said for saving everyone that time and effort. At the very least, the debate on the bill could be informed by a legal opinion that offers one take on how a bill might be squared with the constitution.

On Friday, not realizing that Ms. Boivin had asked her question on Thursday (I dared skip QP that day), I asked Mr. MacKay’s office if the government could or will be releasing a legal opinion from the justice department to the constitutionality of the proposed prostitution laws. Here is the response I received.

“Our Government is responsible for doing what it was elected to do – produce, examine and pass laws in the best interest of Canadians. The Supreme Court’s decision in Bedford was clear, raising concerns about the security and safety of women who find themselves in this inherently dangerous work.

That decision has informed our bill, a bill that protects the victims of prostitution by cracking down on the pimps and johns who fuel the demand for this dangerous activity, while putting in place measures that protect our communities, our children and other vulnerable Canadians.”