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Equality & Incrementalism: The Role of Common Law Reasoning in Constitutional Rights Cases

40 Pages Posted: 19 Jan 2013 Last revised: 21 Dec 2014

Jula Hughes

University of New Brunswick - Fredericton - Faculty of Law

Vanessa MacDonnell

University of Ottawa - Common Law Section

Karen Pearlston

University of New Brunswick - Fredericton - Faculty of Law

Date Written: January 17, 2013

Abstract

It is often said that the Charter ushered in a progressive new era in Canadian law. When this assertion is made the implication is usually that the common law remains a largely conservative or stabilizing force in Canadian law, and that principled change under the Charter holds more promise than the incrementalism of the common law method. But progressives also know that principled constitutional change carries its share of risks, including the risk that rapid, large-scale constitutional change will be met with backlash from government and from citizens, and that the interests sought to be advanced through constitutional litigation might ultimately be worse off. In this paper we argue that courts are justified in adopting an incremental approach to constitutional cases, but only if that approach is infused with the Charter value of substantive equality. We then analyze (Attorney General) v Bedford, the Ontario Court of Appeal’s recent decision on the constitutionality of the prostitution provisions of the Criminal Code, through the lens of an equality-centered approach to incrementalism. We conclude that the Court of Appeal’s judgment contains serious deficiencies from the standpoint of equality. In particular, the majority leaves intact the one provision that specifically targets street sex workers, leaving the most vulnerable sex workers at risk of criminal prosecution and without a remedy. A proper application of common law method, informed by the Charter values of equality and inclusion, would have led the Court of Appeal to a different result, while still grounding the case in the legitimacy of the common law.

Keywords: Canadian Charter of Rights and Freedoms, Bedford, sex work, prostitution, incrementalism, equality

Suggested Citation

Hughes, Jula and MacDonnell, Vanessa and Pearlston, Karen, Equality & Incrementalism: The Role of Common Law Reasoning in Constitutional Rights Cases (January 17, 2013). (2014) 44:3 Ottawa Law Review 467. Available at SSRN: https://ssrn.com/abstract=2202437

Jula Hughes

University of New Brunswick - Fredericton - Faculty of Law ( email )

P.O. Box 4400
Fredericton, New Brunswick E3B 5A3
Canada

Vanessa MacDonnell (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada
613-562-5800 (7917) (Phone)

Karen Pearlston

University of New Brunswick - Fredericton - Faculty of Law ( email )

Bailey Drive
P.O. Box 4400
Fredericton, E3B 5A3
Canada

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