R. v. Skinner
Encyclopedia
R. v. Skinner, [1990] 1 S.C.R. 1235, is a leading constitutional decision of the Supreme Court of Canada
on the freedom of expression under section 2(b)
of the Canadian Charter of Rights and Freedoms
.
police officer. He was charged with "communicating in a public place for the purpose of obtaining the sexual services of a prostitute" contrary to s. 195.1(1)(c) of the Criminal Code of Canada
. He was convicted at trial. On appeal Skinner argued that the provision of the Criminal Code violated his right to freedom of expression under section 2(b) of the Charter. The Court of Appeal agreed and found a violation that could not be saved under section 1
of the Charter. It was also suggested that the provision may also violate the right to freedom of association
under section 2(d) of the Charter.
The issues before the Supreme Court was whether section 195.1(1)(c) of the Criminal Code violated sections 2(b) and 2(d) of the Charter. If so, whether the provision is justifiable under section 1 of the Charter.
In a four to two decision, the Court overturned the ruling of the Court of Appeal. It held that the provision violated section 2(b) but was saved under section 1, and did not violate section 2(d).
Brian Dickson
. He first found that section 195.1(1)(c) did not violate the freedom of association. He stated that the law targets expressive content alone and does not relate to association. The provision does not depend on whether there was an agreement for exchange between consenting individual. Though the law may prevent communication for certain commercial activities it is not sufficient to invoke the freedom of association.
In considering the freedom of expression under section 2(b) of the Charter, Dickson applies the same reasoning from the earlier Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), which found that section 195.1(1)(c) of the Code violated the freedom of expression but was saved under section 1.
, supported by Claire L'Heureux-Dubé
, dissented. She, like Dickson, pointed to the Criminal Code reference decision where she had found that the provision violated section 2(b) of the Charter but could not be saved under section 1.
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 freedom of expression under section 2(b)
Section Two of the Canadian Charter of Rights and Freedoms
Section Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada's Charter of Rights that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
.
Background
Dorman Skinner was arrested while trying to proposition an undercoverUndercover
Being undercover is disguising one's own identity or using an assumed identity for the purposes of gaining the trust of an individual or organization to learn secret information or to gain the trust of targeted individuals in order to gain information or evidence...
police officer. He was charged with "communicating in a public place for the purpose of obtaining the sexual services of a prostitute" contrary to s. 195.1(1)(c) of the Criminal Code of Canada
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
. He was convicted at trial. On appeal Skinner argued that the provision of the Criminal Code violated his right to freedom of expression under section 2(b) of the Charter. The Court of Appeal agreed and found a violation that could not be saved under section 1
Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...
of the Charter. It was also suggested that the provision may also violate the right to freedom of association
Freedom of association
Freedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....
under section 2(d) of the Charter.
The issues before the Supreme Court was whether section 195.1(1)(c) of the Criminal Code violated sections 2(b) and 2(d) of the Charter. If so, whether the provision is justifiable under section 1 of the Charter.
In a four to two decision, the Court overturned the ruling of the Court of Appeal. It held that the provision violated section 2(b) but was saved under section 1, and did not violate section 2(d).
Opinion of the Court
The majority opinion was written by Chief JusticeChief Justice of Canada
The Chief Justice of Canada, like the eight puisne Justices of the Supreme Court of Canada, is appointed by the Governor-in-Council . All nine are chosen from either sitting judges or barristers who have at least ten years' standing at the bar of a province or territory...
Brian Dickson
Brian Dickson
Robert George Brian Dickson, , commonly known as Brian Dickson, was appointed Chief Justice of Canada on April 18, 1984. He retired on June 30, 1990 and died October 17, 1998.-Career:...
. He first found that section 195.1(1)(c) did not violate the freedom of association. He stated that the law targets expressive content alone and does not relate to association. The provision does not depend on whether there was an agreement for exchange between consenting individual. Though the law may prevent communication for certain commercial activities it is not sufficient to invoke the freedom of association.
In considering the freedom of expression under section 2(b) of the Charter, Dickson applies the same reasoning from the earlier Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), which found that section 195.1(1)(c) of the Code violated the freedom of expression but was saved under section 1.
Dissent
Justice Bertha WilsonBertha Wilson
Bertha Wernham Wilson, CC was a Canadian jurist and the first woman Puisne Justice of the Supreme Court of Canada.-Early life:...
, supported by Claire L'Heureux-Dubé
Claire L'Heureux-Dubé
Claire L'Heureux-Dubé, served as a justice on the Supreme Court of Canada from 1987 to 2002. She was the first woman from Quebec and the second woman appointed to this position.- Personal history :...
, dissented. She, like Dickson, pointed to the Criminal Code reference decision where she had found that the provision violated section 2(b) of the Charter but could not be saved under section 1.