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BEDFORD: VERITABLE BUNKUM INTRODUCTION In Bedford v. Canada, the Court of Appeal for Ontario was presented with the issue of whether Sections 210, 212(1)(j), and 213(1)(c) of Canadas Criminal Code, which comprise the Canadian governments response to prostitution, are constitutional under Section 7 of the Canadian Charter of Rights and Freedoms.1 Section 210 criminalizes the practice of prostitution at fixed indoor locations.2 It is illegal, then, for prostitutes to use their homes or specific hotels for the purpose of selling sexual intercourse. Section 212(1)(j) precludes anybody from profiting from anothers prostitution.3 This section not only makes it illegal to be a pimp, but also precludes prostitutes from hiring employees, such as bodyguards and drivers. Section 213(1)(c) precludes prostitutes from communicating in public for the purpose of prostitution.4 As a result of this section, prostitutes may not, for example, solicit people to buy sexual intercourse from them in the streets. The applicants, one current and two former prostitutesthe latter hope to once again engage in prostitution if this litigation ends well for themargue that these sections of the Criminal Code unconstitutionally deprive them of their security-of-the-person right under Section 7 of the Charter.5 The court held that it is unconstitutional for the Canadian government to criminalize the practice of prostitution at fixed indoor locations and to criminalize nonexploitive profiting from
1

Bedford v. Canada, 2012 CarswellOnt 3557, paras. 3, 20 (Can. Ont. ONCA) (WL). Pursuant to Section 7 of the Charter, Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c. 11 (U.K.), s. 7. In Canada, prostitution is not per se illegal: one may legally sell sexual intercourse, and one may legally buy sexual intercourse. However, the Canadian government has indirectly restricted the practice of prostitution by enacting Sections 210, 212(1)(j), and 213(1)(c) of the Criminal Code. Bedford, supra note 1, at para. 2. 2 Id. at para. 3. 3 Id. 4 Id. 5 Id. at para. 20.

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anothers prostitution,6 but it held that it is constitutional for the government to preclude prostitutes from communicating in public for the purpose of prostitution.7 The sections that were held to be unconstitutional are purportedly not in accordance with the principles of fundamental justice and unable to be justified under Section 1 of the Charter.8 In contrast, the court held that the Canadian governments precluding prostitutes from communicating in public for the purpose of prostitution is constitutional because it is in accordance with the principles of fundamental justice.9 The Supreme Court of Canadas Web site states that it will adjudicate this case and that the hearings will tentatively commence on June 12, 2013.10 As Canadas arbiter on constitutional issues, a lot is at stake. Brothels may burgeon across the country along with their unpleasant concomitants: organized crime, neighborhood disruption, and the endangerment of public health and safety. Additionally, Canada may become a haven for pimps.11 For the reason that there is a great deal at stake as a result of this litigation, the Court of Appeal for Ontarios holdings in Bedford should be scrutinized.

6 7

Id. at para. 325. Id. at para. 328. 8 Id. at paras. 204, 213-13, 249, 255-56. For information on what the principles of fundamental justice are, see infra Part I.A.2. Knowledge of Section 1 of the Charter is insignificant in the context of this casenote, as a Criminal Code section that is in accordance with the principles of fundamental justice does not need to be justified under Section 1 of the Charter, see generally, PHS Cmty. Servs. Socy v. Canada, 2011 CarswellBC 2443, para. 127 (Can. S.C.C.) (WL); R. v. Malmo-Levine, 2003 CarswellBC 3133, para. 84 (Can. S.C.C.) (WL), and I argue that all of the sections that comprise Canadas response to prostitution are in accordance with the principles of fundamental justice. 9 Bedford, supra note 1, at para. 328. 10 Scheduled Hearings from April 15 to June 30, 2013, SUPREME COURT OF CANADA (Apr. 4, 2012), http://www.scccsc.gc.ca/case-dossier/cms-sgd/hear-aud-eng.aspx?ya=2013&ses=03. 11 I acknowledge that the Court of Appeal for Ontario held that it is only unconstitutional for the government to preclude people who do not exploit prostitutes to live on the avails of their prostitution, Bedford, supra note 1, at para. 267, but, as I explain later in this casenote, see infra Part III.C.1, the section of the Criminal Code that precludes people from profiting from anothers prostitution cannot be any narrower if the Canadian government is to continue to successfully prosecute pimps and, consequently, mitigate the practice of pimping.

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In this casenote, I will argue that the Court of Appeal for Ontarios holdings that it is unconstitutional for the Canadian government to i) criminalize the practice of prostitution at fixed indoor locations and ii) criminalize people from profiting from anothers prostitution are misguided.12 Specifically, I will argue that the Supreme Court of Canada should reverse these holdings because the challenged sections of the Criminal Code are in accordance with the principles of fundamental justice. I. BACKGROUND A. An Introduction to Section 7 of the Canadian Charter of Rights and Freedoms Section 7 of the Canadian Charter of Rights and Freedoms precludes the Canadian government from enacting legislation antithetical to the democratic values upon which the country was founded: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.13 Therefore, as the Court of Appeals for Ontario explained, legislation is unconstitutional if somebody with standing demonstrates on the balance of probabilities that (1) the challenged legislation interferes with or limits the applicant's right to life, or the right to liberty, or the right to security of the person; and (2) that the interference or limitation is not in accordance with the principles of fundamental justice.14 1. When Does Criminal Legislation Interfere with Ones Security-of-the-Person Right?

12

I will not address the courts holding that upholds the Section of the Criminal Code that precludes prostitutes from communicating in public for the purpose of prostitution, Id. at para. 329, because I agree with this holding. 13 Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c. 11 (U.K.), s. 7. 14 Bedford, supra note 1, at para. 89. While it is theoretically possible for a provision that violates Section 7 of the Charter to be upheld under Section 1 of the Charter, R. v. B. (D.), 2008 CarswellOnt 2708, para. 89 (Can. S.C.C.) (WL), I shall not analyze this issue, as such an analysis is unnecessary for the purpose of this casenote.

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The security-of-the-person right created by Section 7 of the Charter protects Canadians physical and psychological well-being.15 Criminal legislation interferes with this right if it threatens either of the two.16 2. An Introduction to the Principles of Fundamental Justice When an applicant has established that criminal legislation interferes with the applicants right to life, right to liberty, or right to security of the person, a court must determine whether the legislation is in accordance with the principles of fundamental justice.17 A criminal law provision at issue is unconstitutional if it is inconsistent with any of the principles of fundamental justice.18 The principles of fundamental justice are arbitrariness, overbreadth, and gross disproportionality.19 a. Overbreadth Generally, criminal legislation is overbroad if its scope is broader than necessary to counteract an activity that the federal government or a provincial government deems is in need of being restricted.20 When a court conducts an overbreadth analysis, however, it is to pay a measure of deference to the means used by a government to accomplish, or attempt to

15 16

Blencoe v. British Columbia (Human Rights Commn), 2000 CarswellBC 1860, para. 55 (Can. S.C.C.) (WL). Id. 17 PHS, supra note 8, at para. 127. 18 See Id. As I stated in footnote 14, it is theoretically possible for a provision that violates Section 7 of the Charter to be upheld under Section 1 of the Charter, R. v. B. (D.), supra note 14, at para. 89. However, the chance of this occurring is very low. Id. As I also stated in footnote 14, I shall analyze this issue, as such an analysis is unnecessary for the purpose of this casenote. 19 See generally PHS Cmty. Servs. Socy, supra note 16 (applying the three principles of fundamental justice). Because i) the Court of Appeal for Ontario held that none of the challenged Criminal Code sections are arbitrary and ii) I agree that none of the challenged Criminal Code provisions are arbitrary, I shall not analyze arbitrariness. 20 R. v. Clay, 2003 CarswellOnt 5179, para. 40 (Can. S.C.C.) (WL); R. v. Heywood, 1994 CarswellBC 592, para. 51 (Can. S.C.C.) (WL).

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accomplish, its goal.21 In other words, a court is not to hold that criminal legislation is unconstitutional merely because a government could have used a different way to accomplish its goal, for policy choices are not within the ambit of the judiciarys realm.22 For example, pretend, on the one hand, there were a law that precluded Canadians from swimming in order to prevent Canadians from drowning. A court would be able to hold that it unnecessarily broad and, consequently, unconstitutional because swimming per se does not cause Canadians to drown. Rather, an inability to swim, undertows, carelessness, and so forth cause Canadians to drown. Pretend, on the other hand, there were a law that precluded Canadians from eating more than a certain number of calories per meal in order to help prevent Canadians from getting heart disease. Even though a court may be able to come up with another way to mitigate the risk of Canadians getting heart diseasefor example, mandating that Canadians who eat more than a certain number of calories per meal have to exercise for a certain amount of timeit would be improper for the court to hold that the criminal legislation is unconstitutional for being unnecessarily broad because politicians make Canadas policy choices, not judges. R. v. Heywood is a good demonstration of overbreadth jurisprudence and it is the case that the Court of Appeal for Ontario used to support its holdings in Bedford.23 In this case, the Criminal Code provision at issue was Section 179(1)(b), which made it a crime for individuals convicted of enumerated offences to loiter in or near a school, playground, or public park.24 One of the enumerated offenses was sexual assault.25 The purpose of Section 179(1)(b) was to protect

21 22

Id. at para. 53. Id. 23 See generally Bedford, supra note 1. 24 Heywood, supra note 20, at para. 1. 25 Id. at para. 10.

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children from becoming victims of sexual offenses.26 The applicant, who had formerly been convicted of sexual assault,27 argued that this provision infringed upon, among others, his Section 7 rights.28 The Supreme Court of Canada held that Section 179(1)(b) was overbroad.29 First, the Court held that it was too inclusive in regard to the places it covers.30 While the Court agreed with the government that the sections application to schools and playgrounds was appropriate, as these are places in which children frequently congregate, it disagreed with the Canadian government that the sections application to public parks and bathing areas was appropriate: [N]ot all such places are places where children are likely to be found. Public parks include the vast and remote wilderness parks. Bathing areas would include all the lakes in Canada with public beaches.31 For the reason that many parks and bathing places are not places in which children frequently congregate, the Court held that the sections aim of protecting children was not enhanced by its application to these places.32 Second, Section 179(1)(b) applies a life-time prohibition on a class of people without a written review process.33 This Court found this to be problematic because the absence of a review process causes some people to be subjected to the section after they have ceased to be a danger to children.34 Third, Section 179(1)(b) applies arbitrarily to some people, as some of the people within the class of people to which the section

26 27

Id. at para. 55. Id. at para. 5. 28 Id. at para. 7. 29 Id. at para. 67. 30 Id. at para. 55. 31 Id. at para. 57. 32 Id. at para. 58. 33 Id. at para. 59. 34 Id.

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applies never posed a danger to children and will never will.35 Certain effects of Section 179(1)(b), then, were unrelated to its purpose. By contrast, Clay is a case in which the Supreme Court of Canada held that a criminal provision that was challenged, despite its being a blanket statute,36 was not overbroad.37 In Clay, the applicant, a 26-year-old who owned The Great Canadian Hemporiuma store in London, ON, that sold, among other things, marijuana cuttingswas charged under the Narcotic Control Act with, among other claims, possession of marijuana.38 These charges led the applicant to file an action alleging, in part, that the prohibition against possession of marijuana is overbroad.39 According to the applicant, the general prohibition against marijuana is overbroad because although this prohibition is meant to prevent harm to chronic users, it also prevents users who do not have a problem from possessing marijuana.40 The Court upheld the blanket statute because it found that a narrower prohibition would be ineffective.41 For the reason that the government is unable to identify chronic marijuana users, it is only able to further its goal of preventing chronic users of marijuana from having access to it by using a broad prohibition against the narcotic.42 b. Gross Disproportionality

35 36

Id. at para. 63. A blanket statute is a statute which prohibits harmless activity in addition to prohibiting harmful activity. A good example is Ontarios Dog Owners Liability Act, which, among other things, prohibits Ontarians from owning put bulls (with the exception of Ontarians who owned pit bulls before the statute came into effect). The purpose of the statute is to extirpate human injuries caused by violent pit bulls. This statute is a blanket statute, then, because it precludes a harmless activityowning a non-violent pit bullin addition to a harmful activityowning a violent pit bull. 37 Clay, supra note 20, at para. 40. 38 Id. at paras 5-7. 39 Id. at para. 27. 40 Id. at para. 34. 41 Id. at para. 40. 42 Id.

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Criminal legislation is grossly disproportionate to a governments objective of counteracting what it deems to be a social problem if it is so extreme as to be disproportionate to any legitimate government interest.43 This principle of fundamental justice defies satisfactory summarization, but recent case law, PHS Community Services Society v. Canada, elucidates its scope. At issue in PHS was the Canadian Minister of Healths decision to refuse to grant Insite an exemption from the Controlled Drugs and Substances Act under Section 56 of the Act.44 Insite is a safe injection site for intravenous drug users in southwest British Columbia.45 Intravenous drug users are able to inject drugs under medical supervision without fear of arrest and prosecution.46 Insite is the result of collaboration between the Vancouverian, British Columbian, and Canadian governments, all of which wanted to mitigate the plight of intravenous drug users in the area.47 The number of deaths and the spread of diseases that resulted from intravenous drug use in Vancouver got to be so bad that a public health emergency was declared in the city in 1997.48 Today, however, the problems associated with intravenous drug use in Vancouver are much less severe as a result of Insites service to the community.49 It is also notable that there has not been an increase in intravenous drug use or crime in Vancouver as a result of Insites operation.50

43 44

PHS, supra note 8, at para. 133. Id. at paras 2-3. 45 Id. at para. 1. 46 Id. 47 Id. 48 Id. at para. 11. 49 Id. at para. 19. 50 Id.

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Being exempted from the Controlled Drugs and Substances Act by the Canadian Minister of Health under Section 56 of the Act is what allows Insite to operate legally.51 By refusing to extend Insites exemption from the Act in 2008,52 Insite would have been subject to the same blanket prohibition against narcotics as everywhere else in the country and, consequently, Insites staff and clients would have had to have ceased all their activities relating to Insite. The Canadian Minister of Healths refusal to extend Insites exemption under Section 56 led its clients to file an action claiming that their Section 7 Charter rights were violated as a result.53 The Court agreed.54 First, the Court held that the Minister of Healths decision interfered with the clients Section 7 security-of-the-person Charter right.55 Without the exemption, the Court reasoned, the clients would be deprived of potentially lifesaving medical care.56 In making this holding, the Court rejected the Canadian governments argument that any negative health risks drug users may suffer if Insite is unable to provide them with health services, are not caused by the CDSA's prohibition on possession of illegal drugs, but rather are the consequence of the drug users' decision to use illegal drugs.57 The Court rejected this argument because the trial judge found, and the Canadian government conceded, that addiction is an illness, characterized by a loss of control over the need to consume the substance to which the addiction relates.58 The Court next held that this interference with the clients security-of-the-person Charter right was not in accordance with the principles of fundamental justice because it was

51 52

Id. at para. 20. Id. 53 Id. at para. 2. 54 Id. at para. 3. 55 Id. at para. 92. 56 Id. at para. 91. 57 Id. at para. 97. 58 Id. at para. 99.

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arbitrary and grossly disproportionate.59 Regarding the latter, the Court reasoned that the consequences of not exempting Insite from the Act under Section 56 greatly outweighed the governments goal of mitigating the problem of drug use in Canada because Insite has prodigious benefitsit has saved many lives and prevented the spread of diseasesand its operation does not have a discernible negative impact on the Canadian governments goal of mitigating drug use in Canada.60 B. An Introduction to Causation and Its Relationship to Actions Brought Against the Government While there generally needs to be direct causation to initiate a Section 7 Charter action against another party, there does not always need to be direct causation when a Section 7 Charter action is brought against the government.61 Rather, as the Supreme Court of Canada held in Suresh, there need only be a sufficient connection between Canadas action and the deprivation of life, liberty, or security.62 PHS is s good demonstration of this fact.63 Recall that there was no direct causation in that casethat is, the Canadian government was not directly causing intravenous drug users to die and contract illnessesbut the Supreme Court of Canada nevertheless held that the Canadian government was responsible for these unfortunate incidences and, consequently, that it breached its duty not to deprive Canadians of their security-of-theperson right.64 Its rationale was as follows: because drug addiction is an illness which prevents its sufferers from having control over whether to consume the drug, or drugs, to which the

59 60

Id. at para. 107. Id. at para. 133. 61 See Khadr v. Canada, 2010 CarswellNat 121 (Can. S.C.C.) (WL); Chaoulli c. Quebec, 2005 CarswellQue 3276 (Can. Que. S.C.C.) (WL); Suresh v. Canada, 2002 CarswellNat 7 (Can. S.C.C.) (WL); United States v. Burns, 2001 CarswellBC 272 (Can. B.C. S.C.C.) (WL); Blencoe v. British Columbia, 2000 CarswellBC 1860 (Can. B.C. S.C.C.) (WL). 62 Suresh, supra note 61, at para. 55. 63 See supra Part I.A.2.b. 64 See PHS, supra note 16, at para. 92.

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sufferer is addicted, the governments preventing drug addicts from availing themselves of Insites services, which mitigated the risks associated with their addictions, was tantamount to the government putting the affected people in harms way.65 Operation Dismantle, by contrast, is a case in which the Supreme Court of Canada held that there was an insufficient connection between Canadas challenged action and the applicants security-of-the-person right.66 The applicants in this case brought a security-of-the-person action against the Canadian government because of the latters decision permit the American military to test its cruise missiles in Canada.67 The applicants alleged that the Canadian governments allowing the American military to test cruise missiles on Canadian territory threatened Canadians lives and, more broadly, security by increasing the likelihood that Canada would become involved in a nuclear conflict.68 In response, the Court stated that the applicants allegations were mere speculation, which is insufficient to establish causation between a governmental action and an allegation of an infringed Charter right.69 Accordingly, the Court dismissed the case.70 C. The Reasons for the Canadian Governments Position Against Prostitution Being Conducted at Fixed Indoor Locations There is a great deal of debate surrounding the Canadian governments reasons for its position against prostitution being conducted at fixed indoor locations, as virtually no sources elucidate its position on this issue.71 Of the few sources that do elucidate the governments

65 66

Id. at para. 97. Operation Dismantle Inc. v. R., 1985 CarswellNat 151, para. 37 (Can B.C. S.C.C.) (WL). 67 Id. at para. 1. 68 Id. at para. 11. 69 Id. at para. 18. 70 Id. at para. 40. 71 See Bedford, supra note 1, at paras. 179-93.

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position on this issue, Rockert v. R.72 is likely the most authoritative one. In Rockert, the Ontario Court of Appeal stated that the Canadian governments position against prostitution occurring at fixed indoor locations is the result of its desire to mitigate common nuisances that cause neighborhood disruption and endanger public health and safety.73 D. Case Law Regarding the Criminal Codes Living-on-the-Avails Provisions Different aspects of Canadas living-on-the-avails provisions have been challenged in three notable cases. These cases are Grilo, Downey, and Barrow.74 1. Grilo In Grilo, the first of the notable sequence of cases that addressed the living-on-the-avails provisions of the Criminal Code, the Court of Appeal for Ontario had to decide whether a prostitutes roommate, with whom she shared rent and other living expenses, was in violation of the prohibition against living on the avails of prostitution.75 The court responded to this question negatively.76 The court held that one is only in violation of Section 212(1)(j) of the Criminal Code if i) one has a monetary relationship with a prostitute and ii) this monetary relationship would not exist but for the prostitutes being a prostitute.77 According to the court, the defendants conduct was not in violation of this test, for, although he had a monetary relationship with a prostitute, his monetary relationship with a prostitute was not dependent on her being a prostitute.78 2. Downey

72 73

1978 CarswellOnt 19 (Can. Ont. S.C.C.) (WL). Id. at para. 22. 74 See R. v. Barrow, 2001 CarswellOnt 2010 (Can. Ont. ONCA) (WL); R. v. Downey, 1992 CarswellAlta 56 (Can. Alta. S.C.C.) (WL); R. v. Grilo, 1991 CarswellOnt 89 (Can. Ont. ONCA) (WL). 75 Grilo, supra note 74, at para. 22. 76 Id. at para. 23. 77 See id. at para. 25. 78 See id. at paras. 25-30.

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In Downey, the second of the notable sequence of cases that addressed the living-on-theavails provisions of the Criminal Code, the defendant was convicted on two counts of living on the avails of prostitution.79 In the mid-1980s, the defendant worked for an escort agency, where he answered the agency's telephones, made up the receipts and did the banking.80 The agency made money at the expense of the prostitutes by charging clients an agency fee for setting up their sexual encounters with the agencys prostitutes.81 It is important to note that there was no evidence or coercion, exploitation, or manipulation entered into evidence during the trial.82 The defendants case made its way up to the Supreme Court of Canada, and the Court was presented with the question of whether the evidential burden that Section 212(3) places on defendantspursuant to this section, evidence that a person lives with or is habitually in the company of prostitutes is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitutionviolates their right to be presumed innocent under Section 11(d) of the Canadian Charter of Rights and Freedoms.83 After noting the necessity of the provision for prosecuting people who exploit prostitutes (prostitutes are very reluctant to testify against people who exploit them),84 the Court upheld Section 212(3), holding that it is apparent that the objective of the impugned provision is of sufficient importance to warrant overriding s. 11(d).85 3. Barrow In Barrow, the final notable sequence of cases that addressed the living-on-the-avails provisions of the Criminal Code, the principal issue that faced the Court of Appeal for Ontario

79 80

Downey, supra note 74, at para. 2. Id. at para. 4. 81 Id. at para. 3. 82 Id. 83 Id. at para. 1. 84 Id. at para. 56. 85 Id. at para. 60.

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was what the meaning of the parasitism element is for living on the avails of prostitution.86 Here, the defendant ran an escort agency, where she kept one-third of the earnings of the agencys escorts, who, encouraged by the defendant but never coerced, often engaged in sexual activity with their clients.87 As a result of her actions, the defendant was charged, among other things, with living on the avails of prostitution.88 The court disagreed with the defendants assertion that coercion is an element that the Crown must prove to convict someone for living on the avails of prostitution.89 According to the court, parasitism, an element of the crime, is present whenever one is in the business of rendering services to prostitutes because they are prostitutes.90 II. THE DECISION A. The Constitutional Challenge Terri Jean Bedford, Amy Lebovitch, and Valerie Scott, the applicants, all have direct ties to prostitution.91 Amy is a prostitute who works out of her home,92 Terri Jean prostituted herself in the past and intends to once again prostitute herself if this litigation is successful,93 and Valerie is a former prostitute who hopes to return to prostitution.94 The three of them filed an action against the Canadian government, asserting that Sections 210, 212(1)(j), and 213(1)(c) of the Criminal Code are unconstitutional.95 To reiterate, Section 210 criminalizes the practice of prostitution at fixed indoor locations, Section 212(1)(j) precludes anyone from profiting from

86 87

Downey, supra note 74, at para. 3. Id. at para. 1. 88 Id. at para. 2. 89 Id. at para. 31. 90 Id. at para. 3. 91 Bedford, supra note 1, at paras 10-12. 92 Id. at para. 11. 93 Id. at para. 10. 94 Id. at para. 12. 95 Id. at para. 13.

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anothers prostitution, and Section 213(1)(c) precludes prostitutes from communicating in public for the purpose of prostitution.96 The aforementioned provisions are unconstitutional, the applicants argued, because they violate their security-of the-person Section 7 Charter right by preventing them from taking precautions while engaging in prostitution.97 According to the applicants, the level of danger faced by prostitutes would a lot lower if they were able to work at fixed indoor locations and hire employees, such as body guards.98 The applicants argument has some merit because the criminal provisions at issue prevent a class of people from safely engaging in lawful transactions. Prostitution is not per se illegal in Canada: In Canada, prostitution itself is legal. There is no law that prohibits a person from selling sex, and no law that prohibits another from buying it.99 Rather, many of the concomitants of prostitution have been criminalized.100 Consequently, it is difficult to engage in prostitution safely and lawfully. B. The Trial 1. The Findings The trial courts findings are social and legislative findings of fact, not adjudicative findings of fact.101 The applicants witnesses consisted of a diverse group of people, including prostitutes, an advocate for prostitutes rights, a politician, a journalist, and social scientists with
96

Recall that I will not address the courts holding that upholds the section of the Criminal Code that precludes prostitutes from communicating in public for the purpose of prostitution, Id. at para. 329, because I agree with this holding. 97 Bedford v. Canada, 2010 CarswellOnt 7249, para. 10 (Can. Ont. O.N.S.C.) (WL), amended by 2012 CarswellOnt 3557 (Can. Ont. ONCA) (WL). 98 Id. at para. 11. 99 Bedford, supra note 1, at para. 2. 100 Id. 101 Adjudicative facts, the standard fare of litigation, speak to the who, what, where, when and why of a specific event or claim. Social facts describe conditions, causes or relationships at a societal rather than an individual level. Thus, a finding that an individual is a racist is an adjudicative fact, while a finding that society is racist is a social fact. Unlike adjudicative facts, social facts are not readily provable through the firsthand testimony of lay witnesses. Social facts are often proven through an amalgam of testimony of the experiences of individuals, and the opinions of experts. Legislative facts, cousins of social facts, are facts that speak to the meaning or effect of legislation. These facts are often established through Parliamentary debates and government reports of various types. Id. at para. 128.

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expertise on the issue of prostitution in Canada and internationally.102 The Canadian governments witnesses also consisted of a diverse group of people, including prostitutes, police officers, an assistant Crown Attorney, a social worker, advocates against prostitution because of its negative effects, social scientists knowledgeable about the issue of prostitution in Canada and internationally, research-methodology experts, and a lawyer and a researcher at the Department of Justice.103 The affidavit evidence from the witnesses on both sides was accompanied by a prodigious volume of documents, including studies, reports, newspaper articles, and legislation.104 a. Evidence from Prostitutes and Former Prostitutes The applicants submitted affidavits from eight prostitutes.105 In summary, these prostitutes stated that engaging in prostitution in indoor locations is generally safer than street prostitution, that prostitutes level of safety in indoor locations decreases if the location is poorly managed, and that prostitutes can increase the safety of prostitution by working in a familiar environment, having regular clients, discussing the conditions of their services with clients immediately, and having the ability to hire people to assist them.106 The Canadian government, on the other hand, submitted affidavits from nine prostitutes.107 They stated that they were subjected to horrific violence at both indoor and outdoor locations, that controlling and abusive pimps are pervasive in prostitution, and that

102 103

Bedford, supra note 97, at para. 84. Id. 104 Id. 105 Id. at para. 85. 106 Id. at para. 86. 107 Id. at para. 87.

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numerous prostitutes abuse drugs and alcohol.108 b. Evidence from Police Officers and an Assistant Crown Attorney The Canadian government submitted affidavits from nine police officers from police departments across Canada who deal with prostitution offences.109 All told, these police officers described prostitution as a dreadful industry which is linked to drugs, violence (both between clients and prostitutes and between pimps and prostitutes), and organized crime.110 c. Evidence from Other Lay Witnesses Both the applicants and the Canadian government submitted into evidence the statements of other lay witnesses. Much of the applicants evidence from these witnesses was along the same vein as evidence their other witnesses gave.111 Many of the Canadian governments other lay witnesses, on the other hand, stated that prostitution has a pernicious effect on the communities in which it takes place, bringing about increased traffic, the presence of used condoms and needles, foul language, explicit sexual behaviour, and harassment of community members.112 d. Applicants Expert Evidence i. The Nature of Prostitution in Canada Most prostitutes in Canada are women, and approximately 80 per cent of prostitution occurs in indoor locations.113 ii. Violence in Prostitution

108 109

Id. Id. at para. 90. 110 Id. 111 Id. at para. 95. 112 Id. at para. 96. 113 Id. at para. 119.

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Most of the violence that occurs in the prostitution industry consists of violent acts inflicted by male clients against female prostitutes.114 Street prostitutes are much more likely than prostitutes who work at indoor locations to be at the receiving end of such violence.115 Were it not for the provisions of the Criminal Code that are at issue, prostitutes could use numerous precautions to mitigate the danger they face. They could enhance their safety by establishing a degree of control over areas they use to engage in sexual activity with clients, screening clients before agreeing to conduct transactions, and availing themselves of helpers, including drivers and bodyguards.116 iii. Effect of the Impugned Provisions Many of the applicants expert witnesses opined that the Criminal Code makes life as a prostitute difficult. They stated that the Criminal Codes prohibition against engaging in prostitution at fixed-indoor locations and profiting from anothers prostitution limits prostitutes ability to maximize their safety; augments the stigma attached to prostitution; and causes police officers to perceive prostitutes as quasi-criminals, making some prostitutes loath to seek assistance from the police.117 e. Canadian Governments Expert Evidence The governments expert witnesses stated, in general, that prostitution is inherently harmful because it is a form of violence against women.118 They also stated that prostitution is a social evil because it is linked to drug and alcohol addiction and organized crime.119 f. International Evidence

114 115

Id. at para. 121. Id. 116 Id. 117 Id. at para. 125. 118 Id. at para. 131. 119 Id. at para. 133.

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i. The Netherlands On October 1, 2000, the Netherlands repealed laws that prohibited living on the avails of prostitution and owning a brothel.120 Despite these legislative changes, the prostitution industry in the Netherlands is still impeded by the government to some degree. Namely, brothels are regulated by the municipalities in which they are located, nobody with a criminal record is allowed to operate a brother, and the prostitutes working in the countrys brothels are required to have European Union work permits.121 The goal of these legislative changes is to improve prostitutes lives,122 and, according to the Ministry of Justice, decriminalization has been moderately successful in improving working conditions and safety in the legal practice of prostitution.123 Interestingly, despite the option to legally work indoors, 10 per cent of prostitutes work in the streets.124 iii. New Zealand In June 2003, New Zealands government enacted the Prostitution Reform Act 2003, which, aiming to safeguard prostitutes, completely decriminalized prostitution and legalized brothels.125 Five years after its enactment, the Prostitution Law Review Committee found that incidents of violence, threats, forcible confinement, theft, and refusal to pay for services have continued.126 As was the case in the Netherlands, despite the legalization of brothels, there has been no effect on the proportion of prostitutes who work in the streets.127 iii. Germany

120 121

Id. at para. 185. Id. at paras. 186-87. 122 Id. at para. 186. 123 Id. at para. 188. 124 Id. at para. 189. 125 Id. at para. 192. 126 Id. at paras. 194. 127 Id. at para. 196.

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In 2002, the German government passed An Act Regulating the Legal Situation of Prostitutes, which legalized brothels and allows for the promotion of prostitution.128 One of the paramount goals of this legislation is to improve prostitutes working conditions.129 Three years after the Acts enactment, the government found that no measurable improvements are detectable in achieving social protection for prostitutes, improving working conditions . . . or reducing crime.130 iv. Nevada Since 1971, brothels have been legal in Nevada, except in Las Vegas.131 A private study by Brents and Hausbeck entitled Violence and Legalized Brothel Institution in Nevada: Examining Safety, Risk and Prostitution Policy cited numerous problems with brothel prostitution in the state, with respect to the issue of violence.132 2. The Decision The trial judge agreed with the applicants that the Criminal Codes section prohibiting engagement in prostitution at fixed indoor locations and its provision prohibiting people from profiting from anothers prostitution are unconstitutional.133 Having found that i) prostitutes, street prostitutes in particular, face a high risk of physical violence,134 ii) there are ways to mitigate this high risk of violencei.e., working at fixed indoor locations and paying people to

128 129

Id. at para. 198. Id. at para. 199. 130 Id. at para. 201. 131 Id. at para. 209. 132 Id. at para. 213. 133 Id. at para. 506. The trial judge also agreed with the plaintiffs that Section 213(1)(c) of the Criminal Code violates their Section 7 Charter right, Id., but, as I explained in footnote 12, I have no interest in discussing Section 213(1)(c), as the Court of Appeal for Ontario, in my opinion, properly reversed the trial judges holding on this provision, reinforcing the illegality of prostitutes offering their services in public. Bedford, supra note 1, at para. 329. 134 Bedford, supra note 1, at para. 33.

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protect them135and iii) that the challenged parts of the Criminal Code prevent prostitutes from availing themselves of precautions to mitigate the high risk of danger they face,136 the trial judge held the Criminal Codes criminalization of prostitution at fixed indoor locations and profiting from anothers prostitution, embodied in Sections 210 and 212(1)(j), encroaches upon prostitutes security-of-the-person Section 7 Charter right.137 Additionally, the trial judge held that this encroachment of prostitutes Charter right was not in accordance with the principles of fundamental justice.138 The trial judge held that Section 210s criminalization of prostitution at fixed indoor locations violates all three of the principles of fundamental justice.139 The trial judge held i) it is arbitrary because it exacerbates the social problems caused by prostitution,140 ii) it is overbroad because it prohibits prostitutes from working discretely and independently out of their own homes in addition to large-scale commercial brothels,141 and iii) grossly disproportionate because the drastic impact of the Section, preventing prostitutes from working in safe indoor locations over which they have control, cannot be justified by the minor end the Section curtails, social nuisances brought about by brothels.142 The trial judge held that Section 212(1)(j)s criminalization of a persons profiting from anothers prostitution, like Section 210, violates all three principles of fundamental justice.143

135 136

Id. at para. 34. Id. at para. 35. 137 Id. 138 Id. at paras. 37-39. The trial judge also agreed with the plaintiffs that Section 213(1)(c)s violation of their Section 7 of their Charter right was not in accordance with the principles of fundamental justice, Id at para. 40., but, once again, I have no interest in discussing Section 213(1)(c), as the Court of Appeal for Ontario, in my opinion, properly reversed the trial judges holding on this provision, reinforcing the illegality of prostitutes offering their services in public. Id. at para. 329. 139 Id. at paras. 37-38. 140 Id. at para. 37. 141 Id. at para. 38. 142 Id. 143 Id. at para. 39.

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The trial judge held that i) it is arbitrary because increases the power the pimps over prostitutes, ii) it is overbroad because it prohibits prostitutes from hiring people who would protect them, and iii) it is grossly disproportionate because it makes prostitutes lives much less safe, the opposite of what it is meant to do, that is, protect prostitutes from harm.144 C. The Appeal The Court of Appeal for Ontario agreed with the trial judge that Sections 210 and 212(1)(j) of the Criminal Code encroach upon the applicants Section 7 Charter right.145 The court stated that prostitutes inability to engage in prostitution at a fixed indoor location and hire employees to protect them significantly increases the danger they face.146 The Court of Appeal for Ontario also agreed with the trial judge that Section 210 and Section 212(1)(j)s encroachment upon the applicants Section 7 Charter right was not in accordance with the principles of fundamental justice.147 Regarding Section 210, the court held that the provision is overbroad and that its effects are grossly disproportionate to the Canadian governments objectives.148 Regarding the former, the court held that the facts of this case are analogous to the facts in Heywood, prohibiting conduct that does not cause the type of social harm that the Canadian government seeks to curtail: [A] single person discreetly operating out of her own home by herself would be unlikely to cause most of the public health or safety problems to which the legislation is directed.149 Regarding the latter, the court held that Section 210 prevents prostitutes from taking the precaution of engaging in their avocation at indoor locations under their control, dramatically decreasing their safety, but it serves a minor purpose,

144 145

Id. Id. at paras. 92, 142. 146 Id. at paras. 133-34. 147 Id. at paras. 172, 221. 148 Id. at paras. 203, 206. 149 Id. at para. 204.

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that is, assisting police officers in human trafficking operations.150 In reaching this conclusion, the court stressed that Section 210 begets street prostitution and that street prostitutes are overwhelmingly subject to more violence than prostitutes who work indoors.151 Regarding Section 212(1)(j), the court held that the provision is overbroad and that its effects are grossly disproportionate to the Canadian governments objectives.152 Regarding the former, the court held that people who protect prostitutes are unnecessarily within the provisions ambit.153 Regarding the latter, the court held that the provision is out of all proportion to the Canadian governments objectives because while it is aimed at protecting prostitutes from harm, it significantly increases the danger of prostitution.154 Rather than striking down Section 212(1)(j), however, the court opted to cure the constitutional infirmity of Section 212(1)(j) by reading in155 the following underlined words: Everyone who lives wholly or in part on the avails of prostitution of another in circumstances of exploitation is guilty of an indictable offence.156 D. About the Trial Courts Findings As the Court of Appeal for Ontario concedes, the trial courts findings are social and legislative findings of fact, not adjudicative findings of fact.157 This is important because while they may have some value, a higher court is not required to give them much deference.158

150 151

Id. at para. 206-08, 212. Id. at paras 207, 209. 152 Id. at paras. 249-52, 254. 153 Id. at para. 249. 154 Id. at para. 254. 155 Reading in words or phrases into a provision is a remedy used by the judiciary branch of government to render provisions it considers unconstitutional constitutional. 156 Bedford, supra note 1, at para. 267. 157 Id. at para. 129. 158 Harper v. Canada, 2004 CarswellAlta 646, paras. 93-99 (Can. Alta. S.C.C.) (WL).

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Therefore, just as the Court of Appeal for Ontario did,159 the Supreme Court of Canada may reach its own conclusion regarding the record. III. ANALYSIS The Court of Appeal for Ontarios holdings in Bedford regarding Sections 210 and 212(1)(j) are incorrect as a matter of law. Consequently, the Supreme Court of Canada should reverse these holdings. Part A: There Is No Causation Between Sections 210 and 212(1)(j) of the Criminal Code and the Applicants Alleged Injuries The applicants should not have been allowed to litigate their complaints regarding Sections 210 and 212(1)(j) of the Criminal Code. There is an insufficient connection160 between the criminal provisions at issue and the applicants alleged deprivation of their security-of-theperson right. The Court of Appeal for Ontario relied on PHS to support its holding that there is a sufficient connection between Sections 210 and 212(1)(j) of the Criminal Code and the applicants security-of-the-person right.161 The applicants allegation that their security-of-theperson right has been violated in the case at issue is clearly distinguishable, however, from the applicants successful argument that their security-of-the-person right was violated in PHS. In PHS, there was a sufficient connection between the Minister of Healths refusal to grant a continued exemption to Insite from the Controlled Drugs and Substances Act and the harm that intravenous drug addicts suffered as a result because drug addicts do not voluntarily assume the

159

We do not defer to the application judge's findings, but rather assess the record to come to our own conclusion on the social and legislative facts underlying the application judge's finding that the respondents' security of the person is impaired by the relevant legislation. Bedford, supra note 1, at para. 129. 160 See supra Part II.B. 161 Bedford, supra note 1, at para. 114.

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risks of administering intravenous drugs to themselves: addiction is an illness, characterized by a loss of control over the need to consume the substance to which the addiction relates.162 In other words, the harm that intravenous drug addicts would have suffered as a result of the governments action would have been unavoidable. In the case at issue, by contrast, the applicants do not engage in prostitution as a result of a loss of control over the need to consume sexual activity. Rather, they engage in prostitution as a result of their desire to augment their pecuniary resources.163 Therefore, it follows that the applicants voluntarily assume the risks of engaging in a dangerous occupation. Any harm that results from their engaging in prostitution, then, is avoidable, and, consequently, the connection between violence faced by prostitutes and Sections 210 and 212(1)(j) of the Criminal Code is tenuous at best. While it is true that some prostitutes might be able to perform their avocation more safely if the criminal provisions at issue ceased to exist, this does not suggest, as the court stated, that those who engage in the sex trade are for that reason not worthy of the same constitutional protection as those who engage in other, but legal enterprises.164 There are a number of legal jobs that are more dangerous as a result of governmental regulation than they would otherwise be. In British Columbia, for example, Section 11(1)(c) of the Security Services Regulation increases the dangerousness of being a private security worker by prohibiting private security workers from using any weapons. The applicants security-of-the-person claim in the case at issue in analogous to the applicants security-of-the-person claim in Operation Dismantle. Just as the Supreme Court of
162 163

PHS, supra note 8, at para. 97. While I concede that not every prostitute engages in prostitution of his/her own volition (some prostitutes are forced to engage in the avocation by a third party), Bedford does not concern this class of prostitutes. The context of Bedford makes it clear that it is being litigated on behalf of prostitutes who engage in prostitution because they want to. See generally Bedford, supra note 1. 164 PHS, supra note 16, at para. 123.

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Canada held that the Operation Dismantle applicants allegation that the Canadian governments decision to permit the American military to test cruise missiles in Canada posed a threat to the lives and security of Canadians by increasing the risk of nuclear war does not satisfy the issue of causation, but, rather, is a matter of mere speculation [s]ince the foreign policy decisions of independent and sovereign nations are not capable of prediction,165 the Court must hold that the applicants allegation that Sections 210 and 212(1)(j) of the Criminal Code pose a threat to their lives by increasing the dangerousness of their avocation does not satisfy the issue of causation, for this allegation, too, is a matter of mere speculation. The evidence that was presented to the Superior Court of Justice is ambiguous at best.166 Part B: Section 210 of the Criminal Code Is Neither Overbroad Nor Grossly Disproportionate To The Canadian Governments Objectives Any encroachment of Section 210 of the Criminal Code on the applicants Section 7 security-of-the-person Charter right is in accordance with the principles of fundamental justice. Accordingly, Section 210 of the Criminal Code is constitutional and was impermissibly struck down by the Court of Appeal for Ontario. 1. Section 210 of the Criminal Code Is Not Overbroad The fact that Section 210 of the Criminal Code criminalizes large and small brothels alike does not make it overbroad. The Canadian governments aim in outlawing all brothels is to promote public health and safety.167 The promotion of public health and safety is a broad objective that requires broad legislation, pure and simple. Therefore, i) the facts in the case at

165 166

Operation Dismantle Inc., supra note 66, at para. 18. See supra Part II.B.1. 167 Rockert, supra note 72, at para. 84.

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hand are highly distinguishable from the facts in Heywood and ii) a blanket statute168 is both a legitimate and suitable way for the Canadian government to achieve its aims. The legislation that was at issue in Heywood, Section 179(1)(b) of the Criminal Code, was much different than Section 210. There was unequivocal evidence that Section 179(1)(b) arbitrarily and perniciously affected individuals rights.169 Recall that although the purpose of the provision was to protect children from becoming victims of sexual offenses, the provision made it a crime for persons who pose no danger to children to loiter near schools, playgrounds, and public parks.170 The ways in which this provision was overbroad are glaring: i) the term public park encompasses many geographical areas in which children are unlikely to be present; ii) the provision affects people who are not and who never have been a danger to children; and iii) there in no review process to allow cured former child predators to have their former rights restored, that is, to once again allow them to loiter near schools, playgrounds, and public parks. By contrast, Section 210 of the Criminal Code only prohibits activity that is directly related to its objective. The Court of Appeal for Ontario took issue with the fact that the provision prohibits the operation of small brothels, believing that a single person discreetly operating out of her own home by herself would be unlikely to cause most of the public health or safety problems to which the legislation is directed.171 Holding that the provision is overbroad for this reason was improper. First, the record upon which the court relied was void of any evidence showing a correlation between a brothels size and the level of the threat it poses to public health and safety. Therefore, it had no basis to remark that small brothels are unlikely to

168 169

See supra footnote 36. See supra Part I.A.2.a. 170 Id. 171 Bedford, supra note 1, at para. 204.

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cause most of the public health or safety problems to which the legislation is directed. Second, as both the Court of Appeal for Ontario and the trial judge stated umpteen times, there are a number of dangers associated with prostitution.172 Because danger is a concomitant of prostitution, there is every reason for the Canadian government to believe that small brothels, in addition to large brothels, are a threat to public health and safety. Taking into account the facts that i) court had no basis to find that small brothels cause the same public health and safety problems that larger brothels do, ii) the Canadian government is justified in believing small brothels, in addition to larger brothels, pose a danger to public health and safety, and iii) the court owes deference to the means the Canadian government uses to accomplish its goals,173 the court abused its discretion by holding that Section 210 is overbroad because of its application to small brothels. Clay reinforces the fact that Section 212 of the Criminal Code is not overbroad. Recall that in Clay the criminal provision at issue, which prohibits the possession of marijuana for all Canadians in order to prevent chronic marijuana users from causing harm to themselves by consuming too much of it, was attacked for being too broad in that it also prohibits non-chronic marijuana users from possessing it.174 The Court, however, held that it is not overbroad because a narrower prohibition would have been ineffective.175 The government is unable to target chronic marijuana users (not even with the massive bureaucracy and other resources at its disposal can the Canadian government possibly determine which Canadians are chronic marijuana users and which Canadians are not), so it is only able to further its goal of preventing chronic marijuana users from having legal access to the drug by implementing a blanket provision.176

172 173

See supra Part II.B.2, C. See supra Part I.2.a. 174 Id. 175 Id. 176 Id.

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Like the provision that was at issue in Clay, Section 210 of the Criminal Code is not overbroad because a narrower prohibition would be ineffective. The Canadian government is unable to target only brothels that are a threat to public health and safety, for, as I explained, both small and large brothels can pose a threat to public health and safety, so the Canadian government is only able to further its goal of promoting public health and safety by prohibiting all brothels. 2. Section 210 of the Criminal Code Is Not Grossly Disproportionate to the Canadian Governments Objectives To reiterate, the Court of Appeal for Ontario held that the effects of Section 210 are grossly disproportionate to the Canadian governments objectives because it prevents prostitutes from taking the precaution of engaging in their avocation at indoor locations under their control, dramatically decreasing their safety, but it serves a minor purpose, that is, assisting police officers in human trafficking operations.177 The court erred in reaching this holding. First, the court ignored the facts in evidence in reaching its holding. Second, the court overemphasized the effects of the Section on prostitutes. Evidence from the trial demonstrates that the legalization of brothels in the Netherlands and New Zealand has had no effect on the proportion of prostitutes in each country who practice street prostitution.178 It is astonishing, then, that the court blamed the presence of street prostitution in Canada on Section 210. While, concededly, the court did not have to defer to the findings made by the trial judge for reasons already discussed,179 it should have on this point, as i) the evidence on this issue consists of empirical evidence from the governments of the

177 178

Bedford, supra note 1, at paras. 206-08, 212. See supra Part II.B.1.f. 179 See supra Part II.D.

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Netherlands and New Zealand, respectively,180 and ii) the evidence is the only unequivocal evidence in the record as to the correlation between the prohibition of brothels and the level of street prostitution.181 Moreover, the courts assertion that the legalization of brothels would significantly lessen the plight of prostitutes in Canada is merely conclusory. First, the court did not explain how it came to the conclusion that the legalization of brothels would lessen the plight of prostitutes. Second, the empirical evidence that was received from the Netherlands, New Zealand, Germany, and Nevada on the issue was ambiguous at best as to whether the legalization of brothels lessens the plight of prostitutes.182 The latter makes the courts assertion suspicious. Supreme Court precedent also demonstrates that the Court of Appeal for Ontario erred in holding that the effects of Section 210 are grossly disproportionate to the Canadian governments objectives. In PHS, the reason the Supreme Court of Canada held that the Minister of Healths refusal to grant Insite an exemption from the Controlled Drugs and Substances Act under Section 56 of the Act was grossly disproportionate to the Canadian governments objectives is because i) the problem which the Canadian government seeks to remedy, the problem of illegal drug use across Canada, is not compromised by the operation of Insite and ii) the effect of the Minister of Healths refusal to grant the exemption was inevitably catastrophic.183 The latter point calls for an explanation. That the negative effects of the Minister of Healths refusal to grant the exemption would have been catastrophic are exemplified by the fact that the plight of intravenous drug addicts in Vancouver was so egregious in the years before the advent of Insite

180 181

See supra Part II.B.1.f. See supra Part II.B. 182 See supra pp. 21-23. 183 See supra Part I.A.2.b.

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that a public health emergency was declared in the city.184 That intravenous drug addicts would have inevitably suffered immensely once again if Insite was not granted an exemption is evident, as i) intravenous drug addicts have no control over their consumption of intravenous drugs and ii) severe health problems are concomitants of regular intravenous drug use absent medical supervision and care. The situation regarding Section 210 of the Criminal Code is the antithesis of the situation that was present in PHS. Specifically, the effects of Section 210 on prostitutes are not grossly disproportionate to Parliaments objectives because i) the problem which the Canadian government seeks to remedy, public nuisances threatening public health and safety, would be compromised if the provisions were struck down and ii) the effects of the section on prostitutes are not inevitably catastrophic. Regarding the former, it is indisputable that the social problems associated with brothels would arise. Regarding the latter, the negative effects of the provisions on prostitutes are not inevitable and, therefore, are not catastrophic because prostitutes have the ability to avoid the harms about which they are concerned. Most obvious, they have the choice to engage in another line of work,185 completely avoiding the problems about which they are concerned. Additionally, there are methods of which they can avail themselves to make themselves safer while engaging in prostitution. For example, they can better provide for their safety by working in teams, that is, prostitutes can have at least one other prostitute accompany them while they engage in sexual transactions to help ensure safety, and vice versaquid pro quo. They would not have to worry about running afoul of Section 212(1)(j) of the Criminal Code by engaging in such conduct so long as no monetary payment is made for these acts of protection.
184 185

Id. See supra footnote 163.

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Part C: Section 212(1)(j) of the Criminal Code Is Neither Overbroad Nor Grossly Disproportionate To The Canadian Governments Objectives Any encroachment of Section 212(1)(j) of the Criminal Code on the applicants Section 7 security-of-the-person Charter right is in accordance with the principles of fundamental justice. Accordingly, Section 212(1)(j) of the Criminal Code is constitutional in its current form. 1. Section 212(1)(j) of the Criminal Code Is Not Overbroad The fact that Section 212(1)(j) of the Criminal Code prohibits exploitive and nonexploitive relationships between prostitutes and those who profit from their prostitution does not make it overbroad. The Canadian governments aim in prohibiting people from profiting from others prostitution is to protect vulnerable persons from being coerced, pressured, or emotionally manipulated into prostitution.186 This is a broad objective that requires broad legislation. Therefore, a blanket section is both a legitimate and a suitable way to achieve the governments objective. The Court of Appeal for Ontario took issue with the fact that Section 212(1)(j) prohibits non-exploitive people from profiting from anothers prostitution.187 As was the case with the criminal provision that was at issue in Clay, however, a blanket section is required for the government to achieve its goal or protecting a class of people. A provision any narrower would be inefficacious, for the government cannot easily determine which profiteers from others prostitution are exploitive and which ones are not when it is attempting to provide for the safety and well-being of prostitutes, as prostitutes seldom testify against people who exploit them.188 2. Section 212(1)(j) of the Criminal Code Is Not Grossly Disproportionate to the Canadian Governments Objectives
186 187

See supra Part I.D. See supra Part II.C. 188 See supra Part I.D.

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To reiterate, the Court of Appeal for Ontario held that the effects of Section 212(1)(j) is out of all proportion to the Canadian governments objectives because while aimed at protecting prostitutes from harm, it significantly increases the danger of prostitution.189 As was explained, Section 212(1)(j) is a criminal provision that is required in order for the Canadian government to maintain its effort to provide for the safety and well-being of prostitutes. A narrower provision would severely undermine the governments objective, as the government is unable to determine which monetary relationships between prostitutes and nonprostitutes are exploitive ones and which ones are not when it is attempting to provide for the safety and well-being of prostitutes by prosecuting people who exploit prostitutes, as prostitutes seldom testify against people who exploit them.190 Such an objective is a vital one in Canada, where everyone within the countrys borders are supposed to be free and equal to one another. Therefore, to justify rescinding the provision in its current textual form, it would need to have egregious effects.191 Despite what the court asserted, Section 212(1)(j)s effects on prostitutes are not egregious. First, because prostitutes engage in prostitution of their own volition, it can be inferred that they do not believe that Section 212(1)(j) impinges on their safety to a significant extent, for it would be irrational to engage in prostitution otherwise. Second, any harm that Section 212(1)(j) does impinge on prostitutes can either be entirely avoided or significantly reduced. Regarding the former, prostitutes always have the option to cease their engagement in prostitution.192 This makes their situation distinguishable from the situation of the intravenous

189 190

See supra Part II.C. Id. 191 See supra Part I.A.2.b. 192 See supra footnote 163.

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drug users in PHS who were egregiously affected by the Minister of Healths refusal to grant Insite an exemption from the Controlled Drugs and Substances Act under Section 56 because of the facts that i) they had no control over their consumption of intravenous drugs and ii) the plight of intravenous drug addicts was guaranteed to worsen dramatically without that exemption. Regarding the latter, while prostitutes cannot pay others to protect them, there is no provision in the Criminal Code prohibiting people from voluntarily protecting prostitutes from harms way while they engage in prostitution. It is legal for prostitutes friends and families to protect them as long as they do not get paid, and it is legal for prostitutes to protect one another as long as they do not monetarily compensate one another for this. Regarding the latter, for example, prostitute B could protect prostitute A while prostitute A engaged in sexual transactions with clients for a couple of hours, then prostitute A could protect prostitute B while prostitute B engaged in sexual transactions with clients for a couple of hours: quid pro quo. The fact that prostitutes can still receive assistance from others despite Section 212(1)(j) also makes their situation distinguishable from the situation of the intravenous drug addicts in PHS: going to Insite to consume intravenous drugs was the only safeguard they had. In other words, there was no middle ground like there is here. III. CONCLUSION In conclusion, the Court of Appeal for Ontarios holdings that it is unconstitutional for the Canadian government to i) criminalize the practice of prostitution at fixed indoor locations and ii) criminalize profiting from anothers prostitution are misguided. The Criminal Code provisions that criminalize these activities are in accordance with the principles of fundamental justice. Therefore, the Supreme Court of Canada should reverse the aforementioned holdings of the Court of Appeal for Ontario after its hearings on them in June.
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It would be chaotic if Sections 210 and 212(1)(j) of the Criminal Code were to suddenly be rescinded. This is because there has not been a proper national debate about what alternatives there are to Sections 210 and 212(1)(j) and it is uncertain what effects their absence would have on Canada.

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