Westendorp v. The Queen
Encyclopedia
Westendorp v. The Queen, [1983] 1 S.C.R. 43 was a decision of the Supreme Court of Canada
on the Constitution
's criminal law power. A unanimous Court found that a municipal-by law, which prohibited standing in the street for the purpose of prostitution, was struck down as ultra vires
of the provincial government as the law was found to be one of criminal law. The decision surprised many legal scholars as it was inconsistent with many of the preceding case law where provincial laws of a moral nature were upheld under the provincial power (see Canada (Attorney General) v. City of Montreal, [1978] and Nova Scotia Board of Censors v. McNeil
, [1978]). This was also the first case concerning the Charter to be heard by the Supreme Court.
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.
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 legislation in this area, 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.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
on the Constitution
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
's criminal law power. A unanimous Court found that a municipal-by law, which prohibited standing in the street for the purpose of prostitution, was struck down as ultra vires
Ultra vires
Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...
of the provincial government as the law was found to be one of criminal law. The decision surprised many legal scholars as it was inconsistent with many of the preceding case law where provincial laws of a moral nature were upheld under the provincial power (see Canada (Attorney General) v. City of Montreal, [1978] and Nova Scotia Board of Censors v. McNeil
Nova Scotia Board of Censors v. McNeil
Nova Scotia v. McNeil, [1978] 2 S.C.R. 662 is a famous pre-Charter decision from the Supreme Court of Canada on freedom of expression and the criminal law power under the Constitution Act, 1867...
, [1978]). This was also the first case concerning the Charter to be heard by the Supreme Court.
Background
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 prohibitedbeing 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 legislation in this area, 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.