O’REGAN J and SACHS J
Drug Mart case in Canada, manifestly inconsistent with constitutional values.
[113] The question that needs to be considered is whether the brothel provisions of the Sexual
Offences Act are reasonably capable of an interpretation that manifests a purpose consistent with
the spirit, purport and objects of the Constitution. There are textual indications in the Act which
make it plain that the Act was originally enacted to impose a particular view of morality – one
which considered sexual intercourse other than between husband and wife to be “unlawful carnal
intercourse”. There are many people in our society who would support such a view today, and
they remain free to conduct their lives accordingly and to urge others to do the same. At the
same time, it is quite clear that for the state to impose such views on everyone in our society
would conflict with the values of the Constitution, were such to be enacted in the current era.
[114] Given the importance of legal continuity, however, the question is whether an overall
purpose can be ascribed to the Act which is reasonably capable of bearing a meaning consistent
with our current constitutional values. In our view, the Act does overall continue to pursue an
important and legitimate constitutional purpose, namely, the control of commercial sex. It is true
that some of its provisions are formulated in inappropriate language reminiscent of preconstitutional mores. However, we are not satisfied that the appellants have established that the
overall purpose of the legislation is manifestly inconsistent with the values of our new order.
the laws.”
78
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents