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Comment by pervycreeper | Hacker News Reader

>"It makes no difference that the conduct of pimps and johns is the immediate source of the harms suffered by prostitutes," McLachlin wrote. > >"The impugned laws deprive people engaged in a risky, but legal, activity of the means to protect themselves against those risks."

One of the things I've noticed reading newspaper articles and websites regarding legal rulings in Canada (the full depth of my research, admittedly), is that the reasoning seems to be governed by the judges' personal opinions of what would be fair ("we must protect the prostitutes from harm"), whereas American rulings seem to rely more upon the interpretation of texts such as their constitution. Is this an accurate characterization? If so is this a result of a differently structured legal system, or just a "cultural" difference?

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Canada has a pretty good Charter of Rights. Section 7 involves security of the person. That's the rock the existing laws sunk on. Roughly speaking the laws made a legal activity more risky for no reasonable purpose (which is why Section 1, reasonable limits, couldn't save the law).

The Canadian SC is very good at their jobs. They definitely do not make their decisions based on their "personal opinions of what would be fair". Rather, their decisions are based on their measured, professional understanding of the charter, the law and existing jurisprudence, and the effects their decision may have on the administration of justice. Thankfully they are very experienced jurists with great respect for the rule of law and jurisprudence.

I'd like to see the intermediate steps between "security of the person" and legalizing pimping.

It would also be mildly alarming to learn that the SC consists of "very experienced jurists with great respect for the rule of law and jurisprudence" only "for the most part".

I have to retract my "for the most part". I was thinking of Nadon... but he was previous Federal Court of Appeal and Federal Court.

All the Justices were former jurists (http://en.wikipedia.org/wiki/Supreme_Court_of_Canada#Current...).

> I have to retract my "for the most part". I was thinking of Nadon... but he was previous Federal Court of Appeal and Federal Court.

Well even after the ninja edits, your comment still reeks of overclass condescension, using meaningless feel-words ("very good at their jobs", "measured, professional understanding"), essentially saying , "trust them, pleb, they know better than you".

Every decision the SC makes they explain their reasoning in detail (which is published and made available online). Video of proceedings in front of the SC are also available broadcast on CPAC, and available online.

If you don't think a group of judges with years of experience knows the charter, the law, and applicable jurisprudence better than the average citizen then you're deluded and need to seek help.

> Well even after the ninja edits, your comment still reeks of overclass condescension, using meaningless feel-words ("very good at their jobs", "measured, professional understanding"), essentially saying , "trust them, pleb, they know better than you".

You don't think it might be an allusion to the American Supreme Court's habit of legislating how they personally feel rather than with any serious basis in fact or precedence? Chill.

Well... the odds on favorite for what Parliament will do is to make prostitution itself illegal. Harper and the Conservative Party are pretty conservative, and so is their base. Any reasonable regulation of the sex trade is pretty unlikely under their watch.

Once prostitution itself is illegal then the current legislation might pass muster on the section 7 question. Certainly, at the very least, the courts would need to address the question again.

Canada's constitution includes some very broad provisions -- most notably, section 7, which provides for the "right to life, liberty and security of the person" and has been applied to issues ranging from the abortion (Morgentaler) to private medical insurance (Chaoulli) to the operation of supervised drug injection sites (Insite) to the prohibition of penal sentences for absolute liability offences (Re B.C. Motor Vehicle Act) -- but they are limited by section 1 which states that these rights are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".

A very large number constitutional cases end up hinging on the words "demonstrably justified", which is why it looks like judges are making decisions based on what seems "fair": They are, quite literally, called upon to decide whether there are good reasons for laws or if the laws are arbitrary, broader than necessary to achieve their purpose, et cetera. As a result, it's necessary to look at external evidence to determine the constitutionality of laws, and a law which is constitutional today might be unconstitutional tomorrow.

Or as one lawyer I know put it: If Canada's constitution were a normal law, it would be ruled unconstitutional on the grounds of vagueness.

No, that is not an accurate reading of the situation.

Constitutionality in Canada is governed by the judges' interpretation of the Charter of Rights and Freedoms, which is part of the constitution. In this case, the judges determined that the legislation was not simply 'unfair', but infringed on a group of people's fundamental rights.

Part of it is different schools of legal thought. In America there is a significant legal tradition of "textualists' who try to read US constitutional documents literally and in a narrow focus.

Canada, for various cultural and political reasons both pre and post Charter of Rights and Freedoms has a much stronger tradition of 'living tree' constitutionalism that sees constitutional documents as able to grow and change as the values of a society change over time.

>If so is this a result of a differently structured legal system, or just a "cultural" difference?

From an uneducated opinion on the piece this seems to be the difference between Common Law vs Statutory Law. In Common Law the precedence of cases is used, where opinions and subjectivity are perhaps more inclined to change a decision, in contrast; Statutory Law has more to do with the enforcement of prescriptive laws written down by the legislature. While both Canada and the U.S are based on common law, we seem to lean further to the common side then our neighbours to the south.

Common law and statutory law are not two different systems. You're thinking of common law and civil law, which are significantly different.

The linked article is pretty thin regarding the legal rationale for the ruling. A US paper giving a one page summary might be similarly superficial.

Yet, I see your point. Along the lines you suggest, US Constitutional jurisprudence has many secondary doctrines that have been established over the years. One illustration (relevant if this were an American case) is the notion of "strict scrutiny" (http://en.wikipedia.org/wiki/Strict_scrutiny). Basically, this is a more refined interpretation of the Constitution in cases where individual rights are being traded off against legislative power.

I wonder if someone could link to a more refined interpretation of this case?

There are cultural differences, however this comes down to how to interpret our charter.

The US constitution protects the right to free speech, so I assume the SCOTUS can strike down laws that restrict it.

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