VANCOUVER – Crown Counsel today stayed proceedings against a woman who was arrested and charged in the fall of 2010 with keeping a common bawdy-house and other prostitution related offences.
The stay of proceedings was entered a year after her lawyer, Joven Narwal, filed an application in the Supreme Court of British Columbia seeking a stay of proceedings on the basis that his client had been selected to act as a “test litigant” in the complex resolution of the constitutionality of the prostitution related criminal offences. The charges had been laid shortly after the Ontario Superior Court struck down the provisions as unconstitutional. Shortly after the arrest, the Vancouver Police Department issued press releases stating that the force was aware of the ruling and would not stop prosecuting these offences.
Narwal alleged that this amounted to an “abuse of process, was oppressive, manifestly unfair, and put the administration of justice into disrepute”. He sought a judicial stay of proceedings or, alternatively, full funding from the government to cover legal fees and disbursements required to litigate the constitutional question. The Crown directed a stay of proceedings before these issues could be argued.
Narwal said that his “client and her family were relieved that the nightmare was finally over” and lamented that it was “terribly unfortunate that these charges had hung over my client’s head for the last 20 months”. Narwal stated that the lack of consideration of the constitutional question by Crown Counsel “was troubling and problematic” because the “delay in ultimately resolving the issues poses a substantial risk of unfairness”. Narwal said that it is unlikely that cases of this nature would be “ultimately resolved in the context of criminal cases because of constitutional protections against unreasonable delay”. He added that “in any event, few people have the stamina and fortitude or are able to marshal the resources necessary to litigate a complex constitutional challenge”. Narwal suggested that it was time for the Crown to “heed the Supreme Court of Canada’s call” and allow for the resolution of these issues in the context of civil actions for declarations. Narwal stated that the criminal process is inadequate for dealing with such claims and that a civil action is a better forum for “careful consideration and participation by all interested parties”.
A civil action for a declaration of unconstitutionality was what led to the striking down of the provisions in Ontario. That decision was ultimately upheld by a five-judge panel of the Ontario Court of Appeal and is expected to eventually make its way to the Supreme Court of Canada. A similar civil action was filed in British Columbia but the Crown appealed on the issue of whether the Downtown Eastside Sex Workers United Against Violence Society had legal standing to pursue the challenge. The Supreme Court of Canada has yet to render judgment in the BC case on the issue of whether a challenge could proceed at all.