Equality & Incrementalism: The Role of Common Law Reasoning in Constitutional Rights Cases
40 Pages Posted: 19 Jan 2013 Last revised: 21 Dec 2014
Date Written: January 17, 2013
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
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