The Power of Perspectives

The Canadian Bar Association

Léonid Sirota

Who is afraid of economic rights?

June 11 2014 11 June 2014

Canadian constitutional law gives no protection to economic rights, whether property rights or freedom of contract. The framers of the Canadian Charter of Rights and Freedoms excluded such rights from its scope because they were worried that courts would seize on them to invalidate legislation protecting the vulnerable members of society from the depredations of the powerful. Unfortunately, the failure to protect the economic rights of the vulnerable left them at the mercy of the most powerful entity of them all: the state. As a result, the vulnerable and marginalized members of society lack protections they need against public policies that seek to make society more conform to the upper and middle classes’ expectations ― at their expense.

One case in point, as I argued on my own blog, Double Aspect, is the “victim surcharge” imposed on those convicted of an offence ― regardless, by the way, of whether the offence in question had any victims. The surcharge is a taking of property by the government. Insofar as people who commit and are convicted of offences tend to be poor and marginalized, it is largely a government taking from the poor. Insofar as victims whom the surcharge purportedly benefits, however indirectly (since it is not at all a form of restitution to the victims of the crimes whose authors must pay it), tend to be better off than the offenders, it is a taking from the poorer to benefit the better-off.

If property were among the rights protected by section 7 of the Charter, the government would have had to show that this taking is in conformity with principles of fundamental justice such as non-arbitrariness. As Justice Patrick Healy eloquently showed in R. c. Cloud, 2014 QCCQ 464, it would have failed to do so. Because amount of the surcharge imposed on an offender depends on a host of factors having nothing to do with his or her blameworthiness or the true severity of the offence, “[i]t is a blunt instrument that is far too blunt to achieve any valid penal purpose” (par. 18; footnote omitted). As the Supreme Court explained in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 SCR 1101, such a disconnect between a legislative measure and its objectives is the hallmark of arbitrariness. But since property rights are conspicuously absent from s. 7, the surcharge can only be challenged, if at all, in a round-about way, because its non-payment can result in imprisonment.

Bill C-36, the government’s response to the Supreme Court’s judgment in Bedford striking down the Criminal Code’s prostitution-related provisions, is another illustration of the way in which the absence of protections for economic rights hurts the marginalized members of society. While there is broad agreement, from activists to academics to this infamous hotbed of leftwingery, the editorial board of the Globe and Mail, that bill would expose sex workers to great harms, much as the provisions invalidated by the Supreme Court did, Michael Plaxton’s careful analysis shows that its unconstitutionality under the Bedford framework cannot be taken for granted. Bedford, after all, did not recognize a right to engage in sex work. Its reasoning is contingent on the fact that prostitution was legal under the Criminal Code, a situation which may (or may not, depending how the new provisions are interpreted) change if C-36 is enacted.

A recognition of the sex workers’ right to earn a living in their own way would obviate the need for an uncertain balancing of the sex workers’ right to be safe and the government’s moral indignation at the idea of prostitution, to which the Bedford approach leaves the door open. It would, instead, put the spotlight on the real question that the government’s chosen path raises, which is whether this moral indignation is a good enough reason to prevent vulnerable individuals from making a living in what for some, and perhaps many, of them is the only way accessible to them, in a way that would look ludicrous if applied to a respectable middle-class occupation.

However, so far, the Supreme Court has never recognized that the right to liberty protected by section 7 of the Charter includes a right to earn a living as one wishes. On the contrary, it has held in Siemens v. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 SCR 6, that “[t]he ability to generate business revenue by one’s chosen means is not a right protected under s. 7 of the Charter.” Now perhaps this case and others, which involved business owners restricted in their commercial ventures can be distinguished from the case of individual workers denied their choice of occupation. But given the Supreme Court’s aversion to recognizing any form of “economic liberty” not subject to outright abridgment by the state, I would not bet on it acknowledging such a distinction. Yet tragically, failure to do so will only serve to expose sex workers to harm inflicted not only by the ruthless individuals and organizations prepared to meet the demand for sexual services which criminalization will no more make go away than it made demand for drugs disappear, but also by a state that manifestly cares nothing for them.

To be sure, protections for property rights and economic liberty would not only benefit the poor and the vulnerable. They might (or might not), for instance, serve the raw-milk-drinking and raw-milk-cheese-eating yuppies whom the government of Ontario prevents from indulging their taste for unpasteurized dairy products. (I blogged about the Ontario Court of Appeal’s scuttling of their attempt to get around the mandatory-pasteurization regulations by entering into purported “cow-share” agreements with farmers, here.) Property rights and economic liberty might even, no doubt, serve the truly rich now and then. Yet the rich and the well-connected, who can lobby governments to protect their economic interests, seem to be doing all right under our current arrangements. Those who are too poor and too marginalized to do so, not so much.

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Léonid Sirota teaches constitutional law at the AUT Law School in Auckland, New Zealand. He blogs at / Léonid Sirota enseigne le droit constitutionnel à la AUT Law School à Auckland, en Nouvelle-Zélande. Il est l’auteur du blogue

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