Thursday, April 15, 2021
Cara Locke (University of Toronto - Faculty of Law) has posted Debating the Rule of Law: The Curious Re-Enactment of the Solicitation Offence (Alberta Law Review, Vol. 58, No. 3, 2021) on SSRN. Here is the abstract:
The author worries that the rule of law was diminished when Parliament re-enacted section 213(1.1) of the Criminal Code. This “offence” is a refurbished version of the unconstitutional prohibition against communicating in public for prostitution, which was invalidated by the Supreme Court of Canada in 2013. On its face, section 213(1.1) appears to create an offence to offer sexual services near select public places where minors might be present. But on the ground, section 213(1.1) is not actually operating as an offence at all — at least according to government politicians responsible for passing section 213(1.1) into law and police officers who lobbied for its re-enactment.
By delving into the lawmaking process, the author discovers evidence that section 213(1.1) was instead re-enacted to operate as a warrantless detention power. If the debate between legislators and police is taken seriously, de facto detention under section 213(1.1) appears to serve as a means to two ends: (1) to extricate people who sell sex out of the industry; and (2) to collect evidence of graver offences by pimps and johns. Neither of these two ends involve charging the citizens who are technically criminalized under section 213(1.1), yet who are otherwise cloaked in moral blamelessness by legislators and police.
Despite the benevolent motives of legislators and police, the author identifies four interconnected rule of law problems with de facto detentions under section 213(1.1): unaccountability to law, misallocation of power, unanswerability to citizens, and inaccessibility to justice. The author argues that distorting a criminal offence into a de facto detention power deprives people not only of constrained choices, but also of vital procedural safeguards, without which they cannot seek the answers, accountability, and justice that everyone deserves.