Crystal Ball Gazing: Two Cases for the Supreme Court’s Future Docket

Arguments have begun this month in a pair of controversial constitutional challenges that could very well end up on the Supreme Court’s docket in the next few years. The cases, both of which are currently before the Ontario Superior Court, attack long-standing policies whose time may have come: Canadian Blood Services’ ban on blood donations from men who have had sex with men, and the three sections of the Criminal Code outlawing activities relating to prostitution.

Blood: it’s only in some of us to give
As reported last week and again yesterday, Kyle Freeman is suing Canadian Blood Services (CBS) for allegedly violating his Charter rights by asking potential male donors if they have had sex with another man since 1977, even one time. Men who answer “yes” face a lifetime ban on donating blood.  The safety of the blood supply is not an issue that is to be taken lightly, and many people (including the editorial board of the National Post) have framed the case as a selfish crusade that endangers the protection of public health. But Freeman has a point – the policy should be based on behaviour rather than on lifestyle. It’s not immediately clear why a gay man in a monogamous relationship who is HIV negative should be permanently banned from donating blood when another man who has unsafe sex with many different female partners is not subject to the same restrictions and, if he is, such restrictions are often temporary.

Unfortunately, while Freeman may be right as a matter of principle, his case faces an uphill battle as a matter of law. First, it’s not clear that CBS is a government actor, and therefore bound by the Charter. As detailed on the organization’s website, CBS is a non-profit charity. Provincial and federal ministers of health play a role “similar to shareholders”, and are not involved in operational decisions of either the Board of Directors or CBS itself. It’s true that CBS provides a public service by managing the blood program, but in McKinney v. University of Guelph ([1990] 3 S.C.R. 229), La Forest J. (writing for himself and two other members of the Court) suggested that a public purpose test was inadequate for determining whether the Charter applied:

[T]he Charter was not intended to cover activities by non-governmental entities created by government for legally facilitating private individuals to do things of their own choosing without engaging governmental responsibility.

This approach was confirmed in Eldridge v. British Columbia ([1997] 3 S.C.R. 624), where La Forest J. (this time writing for the full Court) held that:

[T]he mere fact that an entity performs what may loosely be termed a “public function”, or the fact that a particular activity may be described as “public” in nature, will not be sufficient to bring it within the purview of “government” for the purposes of s. 32 of the Charter. … In order for the Charter to apply to a private entity, it must be found to be implementing a specific governmental policy or program. [Emphasis in original.]

Whether blood collection is a specific governmental policy or program will certainly be a live issue before the Superior Court. Even if Freeman manages to overcome the threshold issue, he must still navigate the Section 15 jurisprudence, which can be a jurisprudential minefield. While the Supreme Court signalled a shift in its approach to s. 15 issues in Kapp (2008 SCC 41), the issue of the proper comparator group remains important. If the judge chooses a comparator group based on risk factors, rather than on behaviour, Freeman could be out of luck.

The Legal Battle Over The World’s Oldest Profession
Compared to Kyle Freeman, Terri-Jean Bedford faces no threshold questions about whether the Charter applies to her case. Instead, Justice Susan Himel will have to decide whether the three sections of the Criminal Code (which prohibit communicating for the purposes of prostitution, keeping a common bawdy house, and living off the avails of prostitution) violate the s. 7 guarantee of security of the person and/or infringe on freedom of expression. (Full disclosure: I had a small role, along with other Osgoode Hall law students, in assisting Alan Young [a professor at Osgoode and one of the lawyers representing Bedford] with some research for the case).

The claimants argue that the prohibitions on the three activities associated with prostitution force them onto the street, where the threat of physical violence is higher. The Crown, unsurprisingly, is taking an entirely different view of the case. The Globe and Mail characterized the Crown’s legal brief as “proving the inherent dangers of prostitution”, and arguing that it should not be encouraged through a slack legal regime. (See the Toronto Star’s report on the case here.)

It seems fairly obvious that allowing sex workers to practice their trade indoors, with all the security benefits that entails, would be a safer alternative than forcing it to take place surreptitiously in back alleys. If Parliament has a real problem with prostitution, then it should outlaw it directly. If not, then there must be a good reason for prohibiting the activities associated with sex work. Suggesting that decriminalizing prostitution would make Canada a haven for sex tourism does not really address the claimants’ arguments.

Why These Cases Could Go To the Supreme Court
Neither of these cases deals with simple legal questions, and both involve issues of interpretation and characterization that are notoriously finicky. Appellate judges often disagree on the appropriate comparator group in equality cases, which has a direct impact on the final outcome. Most importantly, each case addresses issues of national importance that deserve to be debated in front of the nine judges of our top court. While it is impossible to predict with perfect accuracy which cases will make it to the Supreme Court, one thing is certain: should these cases make it before Canada’s top jurists, they’ll also take up several entries on TheCourt.ca’s docket.