In conducting constitutional review with a proportionality test, much depends on the how the purpose of the challenged legislation is characterized by the reviewing court. It is a commonplace that the loftier the purpose attributed to the legislation, the more difficult it will be to judge that legislation to be disproportionate at the balancing stage. The less important the attributed purpose, the easier it will be. The importance of getting the purpose right, in this sense, is well-documented by academics and well-understood by counsel; succeed in characterizing the purpose, and success on the ultimate question will likely follow.
Somewhat less studied is this short-cut: If the purpose can be characterized as wholly improper, the legislation will fail at the very first stage of the proportionality analysis. So there is a powerful incentive for those challenging the legislation to characterize the purpose as improper. Nevertheless, a finding of an improper legislative purpose is something of a rarity. Why should that be?
For one thing, we would expect that governments that pre-vet their draft bills through battalions of constitutional lawyers should pick up on these sorts of problems at an early stage. So contemporary legislation, at least, should only suffer from obvious defects of this nature in extraordinary circumstances. The situation might be different, though, for legislation that pre-dates contemporary vetting procedures. It might be thought that the legislators of, say, the 19th century not only lacked this institutional support, but also lacked the inclination to suborn to the principles that were later posited in contemporary bills of rights. The real surprise, according to this line of thought, would not be that some pre-bill of rights legislation carried an improper legislative purpose, but rather that any such legislation was enacted with what we now would accept as a proper purpose.
Another reason for the rarity of condemnations of legislative purpose of new legislation is the confrontational nature of the finding. It is one thing for a reviewing court to tell Parliament that it chose the wrong means to achieve a salutary objective, or that it overlooked some of the side-effects of a laudatory program. It requires rather more nerve to assert that legislation was enacted by Parliament precisely to carry out an unlawful, corrupt, or even vicious purpose.
Would it make any difference if the responsible Parliament sat two or three generations ago? It would be less confrontational to impute improper motives to legislators whose electoral mandates expired, say, 70 years ago. They will not have left behind the same volumes of paper as their successors to speak to the purposes behind their legislation. And the legislators of the previous century will have few contemporary defenders, particularly if they sat at a time that contemporary judicial and legislative elites tend to caricature or disparage for its putative lack of sophistication.
What I am suggesting is that there may be a special hazard in conducting proportionality analysis with respect to the constitutionality of ‘vintage’ legislation. The passage of time since the legislative enactment can block the inhibitory pathways that make courts more reluctant to attribute bad faith to contemporary Parliaments. And misunderstandings of language and patterns of thought – not to mention self-congratulatory attitudes about moral progress – can derail attempts to understand the reasoning behind older legislation.
This hazard of mischaracterization is amply illustrated in Canadian case law where courts have characterized the purposes of criminal offences related to sexual acts. The most recent example (and one could draw almost at random from the dockets of the past 20 years) is from a decision of the Court of Appeal for Ontario that invalidated several of the Criminal Code R.S.C., 1985, c. C-46 provisions criminalizing matters related to prostitution, Canada (Attorney General) v. Bedford, 2012 ONCA 186.
The Ontario Court of Appeal came to the surprising conclusion that none of the various Criminal Code provisions related to prostitution (prohibitions on maintaining a bawdy house, living off the avails of prostitution, or communicating for the purposes of prostitution) could be characterized, either separately or taken as a suite of provisions, as directed towards the eradication of prostitution. Parliament’s attitude towards prostitution, it was said, is no different than its attitude towards any other legal commercial enterprise. Prostitution was not to be discouraged, but to be tolerated.
The conclusion seems open to question, resting, as it does, on the mere absence of a parliamentary record needed that positively establishes the contrary. We can contrast the Court of Appeal’s treatment of this question with the Supreme Court of Canada’s treatment of the Tobacco Act, S.C. 1997, c.13 in Canada (A.G.) v. JTI-Macdonald Corp.,  2 S.C.R. 610, which is not only more recent legislation but addresses a less controversial subject. Like Parliament’s approach to prostitution, the Tobacco Act does not prohibit the acts of manufacture, purchase, or consumption of tobacco products. Instead, pursuant to the federal criminal law power, it prohibits most tobacco marketing practices, and severely restricts the ability of cigarette manufacturers to communicate with consumers. When reviewing this legislation, the Supreme Court of Canada had no difficulty coming to the conclusion that its purpose was to discourage tobacco use, even though the means chosen did not include a ban on the sale of cigarettes.
Why the difficulty in concluding that the prostitution-related offences were intended to discourage or hamper prostitution? What can explain the difference in the characterization of the purposes of these statutes? If there is no relevant difference in the policy approach, the explanation must lay elsewhere.
The timeline may provide a partial answer. The bawdy house provision, for example, has been on the books for over a century, and was inherited from English common law. Documentation of its purpose is slim and provides the reviewing court with a great deal of room to construct a purpose. The Tobacco Act, in contrast, was enacted in 1997 and, in keeping with contemporary drafting practices, is much more explicit as to its purpose.
The rest of the answer comes through an examination of the judiciary’s peculiar treatment of historical legislation (and case law) predicated on a normative evaluation of sexual acts. Victorian legislators (and their successors up to the mid-20th century) who criminalized acts of indecency or obscenity are often portrayed as acting so as to preserve conventional morality per se. That is, they are understood as acting for the comparatively trivial purpose of preventing the offence to the public that is caused by others flouting social conventions. The conventions themselves are understood to be mere matters of taste – matters that are indifferent in themselves – such that there can be no genuine, free-standing wrong in breaching them. In contrast, contemporary criminal prohibitions are usually characterized in terms of combating ‘harm’ (usually understood thinly, in the sense of empirically observable acts of violence, theft, fraud, and the like) rather than as preserving ‘morality’ (understood as individualistic, subjective, and incapable of being true or false).
In this respect, the reasoning in Bedford as to what constitutes a proper legislative purpose is both typical and fallacious. The objectives of the historical bawdy-house provisions are characterized in Bedford as ‘safeguarding the public peace and protecting against corruption of morals.’ This is condemned as illegitimate, on the basis that it constitutes ‘imposing certain standards of public and sexual morality’ for no greater reason than these are the mores of the community. In contrast, a prohibition of bawdy-houses could be maintained, the Court said, if it were enacted for the purpose of advancing ‘modern objectives of dignity and equality’ .
I have argued elsewhere that prohibiting acts for no better reason than to maintain social solidarity, and without regard to whether the acts in question were truly immoral (as Patrick Devlin famously championed), would indeed be an improper purpose. But it is not at all clear that the bawdy-house provision is well-described in these terms. It seems implausible that the purpose of legislation such as the prohibition of bawdy houses and related offences was simply to preserve conventional standards of morality qua conventional. Surely legislators then, as now, were motivated by the moral judgment that certain acts are seriously wrong, including the moral judgment that persons (particularly children) are treated unjustly if they are not protected from observing the occurrence of these acts, and from the inference that their toleration shows that they are accepted by the political community as an acceptable kind of conduct. That is, Parliament can be taken to have believed: (1) that there is a need to protect the public from a genuine threat, and (2) that it would be an injustice to the people for whom they are responsible (both actors and third parties) if they fail to act legislatively against that threat.
The legislation would have flowed, not from a concern to prevent offence, but precisely from those sorts of considerations that the Court of Appeal for Ontario accepted as properly grounding legislation: concerns about the harms to persons that flow from a denial of their dignity and equality. Legislatures then as now were motivated to prevent genuine harms to persons. The judgment that an act is immoral typically flows from the judgment that it causes some harm (either to the actor or to a third party). Contemporary courts risk misunderstanding (and devaluing) legislation (old and new) to the extent that they manifest the misunderstanding that legislators then were not concerned with “morals” (understood without reference to harm, equality, or dignity), and that contemporary legislators are not manifesting moral judgments, but merely judgments about what is “harmful” (understood without reference to the moral nature of the harm). The difference between contemporary and vintage legislation with respect to morals laws is often a difference of vernacular, not substance.
Bradley W. Miller is an Associate Professor in the Faculty of Law at the University of Western Ontario.