Westendorp v. the Queen

The Chief Justice‑‑This appeal, which is here by leave of this Court, arises out of a charge against the appellant of being on a street for the purpose of prostitution in contravention of s. 6.1(2) of By‑law 9022 of the City of Calgary, as enacted by amending By‑law 25M81. The accused was acquitted at her trial on the ground, inter alia, that the impugned by‑law was unconstitutional as invading federal authority in relation to the criminal law as well as federal legislation in that area. The acquittal was set aside by the Alberta Court of Appeal, speaking through Kerans, J.A., who held that there was no invasion of the federal criminal law power or of federally enacted provisions of the Criminal Code, and that the particular provisions of the by‑law were validly enacted under ss. 152 and 169 of The Municipal Government Act, R.S.A. 1970, c. 246.

The Facts

The facts are not in dispute. There is no question but that the accused and a female friend approached a plain clothes officer on a city street and solicited his interest to engage in intercourse or fellatio for stated payments. They moved with him to a car on a parking lot where another plain clothes officer was waiting and both women were then arrested. The charge followed, reading that the accused Westendorp was on the street for the purpose of prostitution.

Considerable attention was given in the reasons both of the Provincial Court Judge Oliver and of the Alberta Court of Appeal to the question whether the charge under the by‑law was within the authority conferred upon the municipality under The Highway Traffic Act, 1975 (Alta.), c. 56, as amended, (considered by Oliver Prov. Ct. J.) and The Municipal Government Act, R.S.A. 1970, c. 246, as amended, considered by both Courts. The Alberta Court of Appeal limited its consideration to s. 152(1) of The Municipal Government Act which in clause (a) empowers the enactment of by‑laws "for preventing drunkenness, begging, swearing, obscene, offensive or insulting language, fighting or disorderly conduct on or near any street or in or near any public place or building within the municipality, or in any place to which the public has access." The Provincial Court Judge stated that counsel for the accused said that the by‑law's pith and substance was to abate nuisance and public inconvenience and that counsel for the Crown saw it as concerned with control of the streets. The Provincial Court Judge concluded, after an extensive canvass, that the real character and control of the by‑law was not to control the streets but to impose a prohibition on prostitutes from working the streets by the creation of a new criminal offence. He held the by‑law to be ultra vires the powers of the City and of the provincial legislature.

The Alberta Court of Appeal found the by‑law valid under s. 152(1) of The Municipal Government Act by reading it down to apply only to public nuisance and to be supportable under that view of s. 6.1 of the by‑law. Wide as this assessment of s. 6.1 of the by‑law is, I need not be concerned here with its authorizing provision of The Municipal Government Act. The central question is, of course, that of constitutional validity, and I turn to the reasons in this connection of Kerans J.A., and to a consideration of the terms of the challenged by‑law.

The Issues

Three issues were raised in the appeal, of which only the constitutional issue need be addressed. Of the two which may be set aside, one was whether the power to enact this by‑law was delegated to the municipality as allegedly conferred by the provincial legislature. I am prepared to proceed in this respect on the supposition that the challenged by‑law was authorized under provincial legislation. The second issue raised on the appeal, and extensively addressed by the appellant and by the respondent Attorney General of Alberta and supporting interveners representing New Brunswick, British Columbia and Saskatchewan, concerned an alleged violation of the Canadian Charter of Rights and Freedoms under the Constitution Act, 1982 and in particular s. 7 thereof.

Section 7 of the Charter reads as follows:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

It appeared in the course of argument that counsel for the appellant not only sought to infuse a substantive content into s. 7, beyond any procedural limitation of its terms, but also to rely on s. 7 to challenge the validity of the by‑law provision without accepting as a necessary basis for the s. 7 submission that it could only apply if the by‑law was to be taken as valid under the distribution of powers between the legislating authorities. In the result, counsel for the appellant abandoned the challenge under the Canadian Charter of Rights and Freedoms .

7. What, therefore, is left for determination by this Court is whether the challenged by‑law s. 6.1(1) is outside the powers assigned to the Province, invading federal legislative authority. In my opinion, for the reasons expressed below, the by‑law is ultra vires as invading exclusive federal power in relation to the criminal law.

The Calgary By‑law and Section 6.1 thereof

By‑law 9022, first enacted in 1974, and cited as The Street By‑law, is an extensive regulatory and prohibitory enactment relating to the use of city streets. I shall come to some of its details shortly. As it first stood, it contained no provision respecting prostitution although it did embrace control of certain street activities such as soliciting or carrying on business, trades or occupations on any street. On June 25, 1981, city council amended By‑law 9022 by enacting By‑law 25M81, adding s. 6.1 to the master by‑law. Clearly, it had to stand on its own terms because there was no suggestion that prior to its enactment what it encompassed could in any way be subsumed under any other terms of the master by‑law.

Section 6.1 was included as the last section in a group of provisions under the heading "Use of Streets". The original sections under this heading were ss. 3, 4, 5 and 6. The following heading was "Dangerous Practices and Obstructions". The new s. 6.1 preceded this heading. It will be useful to set out ss. 3 and 4 and make reference to ss. 5 and 6 before setting out the added s. 6.1.

Sections 3 and 4 are in these terms:

3. (1) Except as otherwise provided in this By‑law, in the Calgary Traffic By‑law, in other by‑laws of the City, or in provincial or federal statutes or regulations, all persons may use the streets for all purposes for which a public thoroughfare normally may be used.

(2) A person using a street shall comply with all provisions of the Calgary Traffic By‑law applicable to him.

4. Where a sidewalk is provided no person shall walk

(a) on a border of a street that is sown with grass or other seed, or

(b) on or along the travelled portion of a street except to cross the street unless in either case he could not use the sidewalk with safety.

Section 5(1) states that subject to the provisions of subs. (3) of this section and of ss. 6 and 6.1 a person shall not place or leave any wares, merchandise or chattels to display them for sale, or sell or solicit purchasers for such goods, nor leave a motor vehicle parked offering or displaying it for sale, nor conduct an auction sale. Under s. 5(2), other than a person set out in subs. (3) (and there are exceptions listed here which I need not enumerate), no person shall solicit for or carry on his business, trade or occupation on any portion of the street. Section 6 requires the approval of the city commissioners for placing newspapers on racks or stands on portions of a public street, subject to specified conditions. Then comes the new s. 6.1, a lengthy section with its own definition of terms.

Section 6.1, when separately enacted under By‑law 25M81, was preceded by a heading and a lengthy recital which were as follows:

Being a By‑law of The City of Calgary to Amend By‑law Number 9022 to Prohibit Use of City Streets by those Approaching or being Approached by Others for the Purpose of Prostitution

WHEREAS subsection (3) of section 169 of The Municipal Government Act provides that subject to every other act, a municipal council has control and management of, among other things, the public highways, roads, streets, lanes, alleys and bridges within the municipality including the air space above;

AND WHEREAS subsection (1) of section 14 of The Highway Traffic Act 1975 provides, among other things, that a municipal council may make by‑laws controlling and regulating the use of all highways, sidewalks and other public places and delegating to the chief constable or municipal commissioner any powers in connection therewith;

AND WHEREAS there are persons who locate themselves upon, and hold themselves out on City streets for the purpose of prostitution;

AND WHEREAS there are persons who approach or are approached by others on City streets for the purpose of prostitution;

AND WHEREAS these above mentioned persons often collect in groups on City streets and attract crowds on City streets, vehicular and pedestrian;

AND WHEREAS the above mentioned activities are a source of annoyance and embarrassment to members of the public and interfere with their right and ability to move freely and peacefully upon the City streets;

AND WHEREAS it is expedient to provide by by‑law that the highways, streets, sidewalks, alleys, lanes and public places of the City shall not be used for the purpose of holding out or offering to other persons lawfully using the streets services of a prostitute and to amend by‑law number 9022, The Street By‑law for this purpose;

This heading and recital do not appear in s. 6.1 as it was subsumed under By‑law 9022 but it was relied on to support the challenged by‑law.

Section 6.1 as found in by‑law 9022 reads:

6.1 (1) In this section

(a) "offering" includes but is not limited to the holding out, proposing, making available or expressing willingness to participate in a sexual service with a person for payment;

(b) "prostitution" means the sale or offering for sale of sexual services and includes the purchase or offering to purchase sexual services;

(c) "sexual services" include but are not limited to activities of a sexual nature for amusement, gratification, pleasure, stimulation, titillation or otherwise of any person;

(2) No person shall be or remain on a street for the purpose of prostitution.

(3) No person shall approach another person on a street for the purpose of prostitution.

(4) Any person contravening the provisions of this section is guilty of an offence and is liable on summary conviction;

(a) for a first offence to a fine of not less than one hundred dollars ($100.00) and not more than five hundred dollars ($500.00) or in default of payment of the fine and costs, to imprisonment for not more than sixty (60) days; and

(b) for a second or subsequent offence to a fine of not less than three hundred dollars ($300.00) and not more than five hundred dollars ($500.00) or in default of payment of the fine and costs to imprisonment for not more than six (6) months

unless in either case the fine and costs, including the cost of committal are sooner paid.

The Scope of the Calgary By‑law Saving Section 6.1

I have already noted that the first heading of the by‑law following s. 6.1 refers to "Dangerous Practices and Obstructions". Then follows a heading entitled "Projections Over Streets" and a succeeding heading reading "Requirements for Canopies and Similar Projections". In turn this is followed by a heading "Fire Escapes" and then a succession of headings designed as "Sidewalk Chutes", "Litter and Refuse on Streets", "Garbage and Laundry Chutes" and "Shopping Carts". By no stretch of any imagination do any of the aforementioned headings have any affinity with s. 6.1 and it is unnecessary to enter into any detail of the provisions included under the various headings.

The next heading in the by‑law is entitled "Parades", which is self‑explanatory. Then comes a heading called simply "Sidewalks" which restricts use of motor vehicles, bicycles and horses along a sidewalk and also prohibits parking or leaving vehicles on a sidewalk. There are exceptions which, again, I need not elaborate. The succeeding heading of the by‑law is entitled "Care of Boulevards", then follows a heading "Clearing of Sidewalks" and following it a heading entitled "Protection of Street Surfaces". The next heading in this extensive by‑law is "Use of Streets and Sidewalks for Building Operations" and this in turn is followed by the heading "Excavating and Breaking up Street Surfaces". Then comes a heading "Use of Space Under Streets", followed by a heading "Building Foundations Not to Encroach on Street", a further heading entitled "Erection of Poles", then a heading reading "Alterations in Street Grades". A concluding provision deals with penalties for breach of provisions other than s. 6.1 and imposes fines ranging from twenty dollars to three hundred dollars and imprisonment up to ten days or thirty days or forty‑five days or sixty days, according to the gravity of the infractions.

I have referred, however briefly, to the types of regulations and prohibitions and accompanying penalties which the by‑law encompasses beyond s. 6.1. Apart from such relevance to s. 6.1 as may be found in ss. 3 to 5, there is nothing in the by‑law which has any relation to s. 6.1 or to the scale of penalties prescribed for breach of s. 6.1 compared with those in the general penalty provisions of the by‑law to which I have referred. Section 6.1 stands as an intruded provision of By‑law 9022 which might just as well have been left in its original form in By‑law 25M81. In short, there is nothing in By‑law 9022 which invigorates s. 6.1 which must stand on its own merit as a valid municipal by‑law.

Terms of Section 6.1: Its Pith and Substance

It is patent, from a comparison of s. 6.1 with ss. 3, 4 and 5 of the by‑law, that s. 6.1 is of a completely different order from its preceding sections and, certainly, from all those succeeding it. It is specious to regard s. 6.1 as relating to control of the streets. If that were its purpose, it would have dealt with congregation of persons on the streets or with obstruction, unrelated to what the congregating or obstructing persons say or otherwise do. As the by‑law stands and reads, it is activated only by what is said by a person, referable to the offer of sexual services. For persons to converse together on a street, as did the two women and the police officer here, and to discuss a recent or upcoming sporting event or a concert or some similar event would not attract liability. It is triggered only by an offer of sexual services or a solicitation to that end. There is no violation of s. 6.1 by congregation or obstruction per se; the offence arises only by proposing or soliciting another for prostitution. To remain on a street for the purpose of prostitution or to approach another for that purpose is so patently an attempt to control or punish prostitution as to be beyond question. The matter goes beyond the provincial legislation held by this Court to be invalid in Switzman v. Elbling, [1957] S.C.R. 285, which prohibited any person to possess or occupy a house in the Province to propagate communism or bolshevism. It is clearly distinguishable from Bédard v. Dawson, [1923] S.C.R. 681, where the provincial legislation under attack there was justified as concerned with the control and enjoyment of property. There is no property question here, no question even of interference with the enjoyment of public property let alone private property.

Nor can any comparison be made between this case and the judgment of this Court in Attorney General for Canada and Dupond v. Montreal, [1978] 2 S.C.R. 770, which related to a municipal anti‑demonstration by‑law which was also emphasized as being of a temporary nature. That by‑law related plainly to parades and assemblies on the streets, different from s. 6.1 of the present case.

The question remains, however, whether, recognizing the differences in principle between the present case and the three cases in this Court mentioned above, there is nonetheless constitutional scope for the valid enactment of the challenged by‑law. This brings me to consider the reasons given by Kerans J.A. for upholding the by‑law. He construed it as an attempt to deal with a public nuisance. This is not how the offence under the by‑law is either defined or charged. The recitals in the by‑law as enacted by By‑law 25M81 cannot be used to justify substantive charging sections when those sections contain a different formulation and their own definition of an offence. It is these aspects that present the constitutional issue.

In examining the submission of counsel for the accused that the by‑law was a colourable attempt to deal, not with a public nuisance but with the evil of prostitution, Kerans J.A. observed that the evil of prostitution is a matter of public morality and, if the pith and substance of this legislation were an attack on this evil, it might well be a matter beyond the competence of the Legislature of Alberta. He then went on to say that "the by‑law does not strike at prostitution as such; it does not seek to suppress the market for sexual favours; it seeks only to protect the citizens who use the streets from the irritation and embarrassment of being unwilling participants in that market".

This assessment of "pith and substance" is to me baffling when regard is had to the terms of s. 6.1. It becomes doubly baffling when Kerans J.A. says this:

I concede that the Calgary legislation makes it an offence for a prostitute simply to enter upon a street for the purpose of prostitution, i.e. without yet doing anything. But this is not an attack on prostitution as such. This is an attempt, by preventative measure, to regulate the activities of the prostitutes and their customers on the streets. It is, as it were, a pre‑emptive strike. And as such is troubling. But it is insufficiently troubling to change the pith and substance of the legislation.

What appears to me to emerge from Kerans J.A.'s consideration of the by‑law is to establish a concurrency of legislative power, going beyond any double aspect principle and leaving it open to a province or to a municipality authorized by a province to usurp exclusive federal legislative power. If a province or municipality may translate a direct attack on prostitution into street control through reliance on public nuisance, it may do the same with respect to trafficking in drugs. And, may it not, on the same view, seek to punish assaults that take place on city streets as an aspect of street control!

However desirable it may be for the municipality to control or prohibit prostitution, there has been an overreaching in the present case which offends the division of legislative powers. I would, accordingly, allow the appeal, set aside the judgment of the Alberta Court of Appeal and restore the acquittal directed by the Provincial Court Judge.