Westendorp v. The Queen
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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]).
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[edit] Background
Lenore Westendorp and a friend approach 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 prohibited 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.
[edit] 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)
