Westendorp v R, [1983] 1 S.C.R. 43 was a decision of the Supreme Court of Canada on the scope of the federal Parliament's criminal law power under section 91(27) of the Constitution Act, 1867. A unanimous Court found that a municipal by-law that prohibited standing in the street for the purpose of prostitution was in the nature of a criminal law prohibition and therefore ultra vires of the provincial constitutional authority. The decision surprised many legal scholars[which?] who considered it to be inconsistent with previous Supreme Court cases where provincial laws of a moral nature were upheld under the provincial power (see Canada (AG) v Montreal (City of), [1978] and Nova Scotia (Board of Censors) v McNeil [1978]). This was also the first case where the Canadian Charter of Rights and Freedoms was cited in argument to the Supreme Court, although the Charter argument was ultimately abandoned during the hearing.
Lenore Westendorp and a friend approached an undercover police officer on a street in Calgary and solicited him for sex. They were both arrested and charged under a municipal by-law that prohibited being on the street for the purpose of prostitution.
At trial, Westendorp was found guilty under the by-law.
Westendorp appealed to the Supreme Court on the grounds that the law was unconstitutional as it was criminal law and should only be legislated by the federal government.
Constitutional challenge of the by-law
The language was quite broad: "No person shall be, or remain on a street, for the purpose of prostitution." The follow-up section stated that no person shall approach a person for the purposes of prostitution. There was nothing about communication or other specific act, and the penalties were much higher than others mentioned in the same by-law. The stated basis of the bylaw was to facilitate the use of the streets, by avoiding the creation of crowds, both vehicular and pedestrian – in essence, to avoid a public nuisance.
Opinion of the Court
Laskin C.J., writing for a unanimous Court, held that the law was ultra vires the province. Laskin found that the law was "colourable", as its true purpose was not to keep the streets safe but to control or punish prostitution. He held that:
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. (p. 53–54)
If the purpose was to stop nuisances, why not prevent any two people from approaching each other? The court decided that what was occurring was that a municipality disapproved of prostitution, and was attempting to enact a criminal law in order to discourage it. The court was also concerned with the precedent that may be created by legislation of this type; were it to be allowed, then it could have broad-reaching consequences on the criminal code where cities could create duplicate laws.
This case is seen as going against the grain of most case law in this area,[citation needed] where the court has struck down legislation formed on the basis of provincial power, holding that it was an attempt to intrude on criminal law power.
Counsel for Westendorp raised the Charter of Rights in submissions to the Court, but abandoned the Charter argument during the oral hearing.
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The history of prostitution in Canada is based on the fact that Canada inherited its criminal laws from England. The first recorded laws dealing with prostitution were in Nova Scotia in 1759, although as early as 19 Aug 1675 the Sovereign Council of New France convicted Catherine Guichelin, one of the King's Daughters, with leading a "life scandalous and dishonest to the public", declared her a prostitute and banished her from the walls of Quebec City under threat of the whip. Following Canadian Confederation, the laws were consolidated in the Criminal Code. These dealt principally with pimping, procuring, operating brothels and soliciting. Most amendments to date have dealt with the latter, originally classified as a vagrancy offence, this was amended to soliciting in 1972, and communicating in 1985. Since the Charter of Rights and Freedoms became law, the constitutionality of Canada's prostitution laws have been challenged on a number of occasions.
The passage of the Canadian Charter of Rights and Freedoms in 1982 allowed for the provision of challenging the constitutionality of laws governing prostitution law in Canada in addition to interpretative case law. Other legal proceedings have dealt with ultra vires issues. In 2013, three provisions of the current law were overturned by the Supreme Court of Canada, with a twelve-month stay of effect. In June 2014, the Government introduced amending legislation in response.
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