This Takes Precedence! How the Bedford Case Empowers Legal Precedent

The Bedford case is interesting on many levels. On the public level, it recognizes the modern realities of what historically has been considered a vice in our society. On the private level, it recognizes the harshness of the prostitution laws on those whom the laws were meant to protect. On the Charter level, it recognizes the breadth of the principles of fundamental justice in our society while giving shape and meaning to the phrase “life, liberty and security of the person.” Finally, on the legal jurisprudence level, the case recognizes the importance of a flexible concept of case precedent.

In a previous posting, I discussed a judge’s use of legal and factual analogy to come to a decision in a case. The concept of legal precedent, whereby a decision is made based on previous similar decisions typically from a superior level of court, not only provides a solid basis for a decision, it also gives the decision an aura of authority and power. Power, in the sense of persuasive power.Authority, as in the correctness or soundness of the decision. It is a remarkable tool, which serves a dual purpose: the power and authority arising from precedent maintains the rule of law in the legal sphere and in the public sphere. Precedent, used appropriately, empowers the words of the court and gives them the force of the law. For further discussion on the coercive power of judicial pronouncements, see my postings here on Robert Cover and his seminal essay on “Violence and The Word.”

In Bedford, the majority needed to deal with the issue of legal precedent to lend their decision an air of legitimacy. The prostitution laws at issue had already been the subject of previous constitutional arguments before the highest level of court: the Supreme Court of Canada. To make pronouncements again and by a lower court seemed officious and redundant. In the case of the prostitution laws, the stakes were even higher as the laws were the second-generation iteration of what were originally known as the “soliciting laws.”

In the 1980s, after the advent of the Charter, the government was forced to change the soliciting laws as a result of the Supreme Court of Canada’s interpretation of the word “solicit” as found in the section. The original section prohibited “everyone who solicits any person in a public place for purposes of prostitution."

In the 1978 Hutt case, the Supreme Court of Canada defined “solicit” as pressing and persistent conduct. Hutt, a 23 year-old prostitute working on the infamous Davie Street in Vancouver, British Columbia, had made eye contact with a potential client driving slowly by her. Hutt smiled and the client, an undercover police officer, smiled back and stopped his car. Hutt jumped into the car, agreed on the cost of her services, and was promptly arrested. The SCC, by defining “soliciting,” found that a mere nod of a head was not enough to fulfill the actus reus or prohibited act requirements under the section. Soliciting required something more than just agreeing to sex for money. It required the prostitute to accost and importune, not just smile.

The result of the decision was explosive: the police refused to lay charges under the section. This public pressure caused the government to finally change the section in 1985 to the present day offence of communication for the purpose of prostitution under s. 213 of the Criminal Code. The meaning of “communication” is much broader than “solicits.” One can communicate through word or gesture and would most certainly describe Hutt’s contact with the undercover officer.

But that was not the end to the narrative. The new section, created in the new Charter era, was further scrutinized; not on the basis of nomenclature but on the basis of constitutionality. This was done preemptively through a reference to the Supreme Court of Canada. As discussed in previous posting, a reference permits the court to pre-vet an issue and to make pronouncements on the efficacy of legislation before it is enacted and subject to legal attack. In the Reference on the prostitution sections, the Court found the new communication for the purpose of prostitution laws were inconsistent with freedom of expression under s. 2(b0 of the Charter but were justified in a free and democratic society and thus appropriate.

Fast forward to today and the similarities are apparent. One of the arguments in the Bedford case, attacked the constitutionality of the very same communication section as previously considered by the SCC. In that instance, the Bedford decision sits solidly behind legal precedent by dismissing the argument as already decided by another, more authoritative court. The more interesting issue is the constitutionality of the other prostitution related charges: keeping a common bawdy house under s.210 and living off the avails under s.212(1)(j). It is here the court relied on a more flexible and contextual approach to legal precedent, while still upholding the concept of court hierarchy.

Two scenarios were discussed. One scenario contemplated the ability of a trial court or lower level court, to permit counsel to build a record of evidence, which would then form the foundation of a future argument before a higher and thus more authoritative court. This higher level court would be in the position to revisit the issue to determine if the passage of time has changed the issue to require a new and different look at the issues involved. The other scenario, contemplates situations where the issues to be argued may be related but are framed differently enough that a decision on the matter is not tied by the rules of legal precedent. This flexibility permitted the court in Bedford to come to a decision on the case and to tackle, head-on, the modern paradox found in the overly broad prostitution sections.

Although the passages on precedent are not the crux of the Bedford case, the court’s view of the issue brings or shall we say, drags, traditional legal principles into the 21st century and beyond.

Blogs As Graffiti? Using Analogy and Metaphor in Case Law

Legal reasoning requires the decision-maker to use both factual and legal analogies and precedents. Legal precedent provides a solid foundation for a decision as it is based upon an earlier decision, typically from a superior level of court, made in the same circumstances to the one being decided. Analogy is a much subtler concept, involving similarities between the two situations. Analogy, therefore, requires an analytical dissection of the two circumstances to find comparables. The beauty of analogy is not only in the similarities, but in the dissimilarities as well: oftentimes it is the distinctions between the cases that matter. Although there are a set of principles and rules to assist in the appropriate use of precedent and analogies, courts have also used metaphoric language to come to legal conclusions.

A metaphor “expresses the unfamiliar in terms of the familiar.” A connection is therefore made between seemingly unconnected objects with the happy result of revealing the objects true and very real similarities. Metaphors are rich and varied and a very compelling way of defining an object or concept. Advertising uses metaphors the best: for example, the “life is a journey” concept “flies” well when considering travel options. As a subset of metaphor is the language technique of “simile,” whereby the comparison between the two objects is proffered more directly by suggesting one object is like another. A simile such as “this fog is like pea soup” conjures up an immediate physical description of the fog, which transcends describing the fog as merely “dense.” But how useful is the use of figures of speech in case law? Is it a  “good fit” (using a tailor metaphor) with the legal principles of precedent and analogy?

Let’s look at a recent example. On March 2, 2012 the UK High Court in considering the issue of defamatory blog comments in Tamiz v Google Inc Google UK Ltd, found Google Inc., the provider of the blog platform, not responsible for the clearly defamatory comments. Justice Eddy came to the conclusion using a “wall covered in graffiti” analogy: Google is like the owner of a building and the defamatory comments are like graffiti placed on the external wall of the building. Just as the owner of the wall is not responsible for the content of the graffiti, Google, as the mere provider of the “space” in which the comments were made, is not responsible for the content of the blogs. Justice Eddy recognized that the owner of the wall or “internet space” may, once the graffiti or comments are made, remove or “whitewash” (do I sense another metaphor here? Whitewash as in censorship perhaps?) the comments. As stated by Eddy J., “That is not necessarily to say, however, that the unfortunate owner must, unless and until this has been accomplished, be classified as a publisher.”

This colourful and powerful analogy, although not truly a legal analogy, becomes the defining moment of this case. Google Inc. is then “cut” (sorry another tailor metaphor) from the case. But as compelling as this analogy is, the question still remains whether this is sound reasoning; sound enough to extricate Google from a lawsuit?

Let’s delve deeper into this analogy: Google provides the wall. Using the analogy to its fullest, Google doesn’t just provide the wall; Google owns the wall - as in the owner of the building with the graffiti sprayed on it. Taking this analogy further, Google owns the wall, which is then provided to others, bloggers, for their use. But the owner of the building does not “provide” the graffiti makers with a wall to spray. In fact, the graffiti on the wall is there without the consent of the owner.

Furthermore, the owner of the wall does have responsibilities to, as Justice Eddy so eloquently put it, “whitewash” or remove the offending marks. Not to do so, is usually in contravention of a City by-law, making the provider of the wall responsible for removal of the comments. Is that not the issue really in this defamation case? Removal of the comments is what is at the core of the lawsuit. Removal, which if it is not done in a timely fashion, does implicitly suggest the owner “likes” (as in Facebook “likes” if you need a metaphor) the comments.

The recent, Supreme Court of Canada case, Crookes v. Newton, is another slight twist on the provider as publisher conundrum. Newton, as the owner and operator of a website, provided hyperlinks to other Internet material, one such link contained defamatory comments regarding Crookes. The majority of the SCC, was careful to “contain” (yes, another building metaphor) the argument to the issue of hyperlinks as a form of expression and not as a form of publication. To hyperlink is not to “like” or approve of the linked material – it is merely to extend the research to another document and provide the reader with another source of information, which the reader can then access or not, and agree with or not.

To come to this conclusion the majority used good old fashion legal precedent and legal analogy based on case law. However, the generous use of metaphor assisted in creating a more compelling argument. In dismissing the Crookes publication argument, Justice Abella used the space or size metaphor to visually describe the spatially immense implications of “broadening” the meaning of publication in the circumstances of the case. Movement metaphor was also used to discuss the “innocent dissemination” exception as passive – almost robotic, without thought or action. The most powerful metaphor by far was the crux of the case as “hyperlinking is referencing”; a print metaphor, using visions of University research papers and academic writing. Then, to give the argument further weight (metaphor), Charter values are brought into the discussion with the caution against restricting the “flow” of information – a movement metaphor and a water metaphor.

The above illustrates an excellent use of legal principles and figures of speech to arrive (journey metaphor) at a cogent argument that has “legs.” This is another movement metaphor that implies the argument is not only a successful one but also a decision that will “achieve strong audience acceptance or interest.”

Which brings me back to the analogy in Tamiz and the dual difficulties found in that decision. The case highlights the difficulty in using analogy or figure of speech to enhance the already cogent legal analogy or precedent. It also shows the care which must be used in using figures of speech to make a point: if so used, the analogy or metaphor must logically connect the two objects as any fallacy arising from the connection will most certainly detract from the argument or finding.

We use metaphor constantly in making sense of the world around us. I highly recommend the book “Metaphors We Live By” written by the linguist George Lakoff and philosopher Mark Johnson for further reading on this fascinating subject. As a result of this seminal book, there is now a whole area of legal jurisprudence on the use of metaphor in legal reasoning (see also publications by professor Steven Winter). Being aware of this human penchant for metaphor and connection does provide another analytical tool (a device or work metaphor using the mind as physically embodied in the hands using a tool) to enhance our reading of legal text. It also provides us with a different view of legal argument and how that argument is communicated through case law.