


COURT OF APPEAL
    FOR ONTARIO
CITATION: Canada
  (Attorney General) v. Bedford, 2012 ONCA 186

DATE: 20120326

DOCKET: C52799 and C52814

Doherty, Rosenberg, Feldman, MacPherson and Cronk
    JJ.A.

BETWEEN

Attorney General of Canada

Appellant

and

Attorney General of Ontario

Appellant

and

Terri Jean Bedford, Amy Lebovitch and
    Valerie Scott

Respondents

Michael
    H. Morris, Gail Sinclair, Mathew Sullivan, Roy Lee, for the appellant Attorney General
  of Canada

Jamie C. Klukach,
    Christine E. Bartlett-Hughes and Megan Stephens, for the appellant Attorney
    General of Ontario

Alan N. Young,
    Daniel Sheppard, Sabrina Pingitore, Ron Marzel and Stacey Nichols, for the
    respondents
Terri Jean
    Bedford, Amy Lebovitch and Valerie Scott

Robert W. Staley,
    Derek J. Bell, Ranjan K. Agarwal and Stephen N. Libin, for the interveners,
    Christian Legal Fellowship, Catholic Civil Rights League, Real Women of Canada

Linda R.
    Rothstein, Michael Fenrick and Andrew Lokan, for the intervener Canadian Civil
    Liberties Association

Fay Faraday and Janine Benedet, for the interveners Canadian Association of Sexual Assault Centres, Native Women’s Association of Canada, Canadian Association of Elizabeth Fry Societies, Action Ontarienne Contre la Violence Faite aux Femmes, La Concertation des Luttes Contre L’Exploitation Sexuelle, Le Regroupement Québécois des Centres d'Aide et de Lutte Contre les Agressions à Caractère Sexuel, and Vancouver Rape Relief Society (the “Women’s Coalition for the Abolition of Prostitution”)

Joseph Arvay and
    Katrina Pacey, for the interveners Providing Alternatives Counselling and
    Education Society, Downtown Eastside Sex Workers United Against Violence
    Society, Pivot Legal Society

Renée Lang, for
    the intervener Canadian HIV/AIDS Legal Network

Jonathan Shime,
    for the intervener British Columbia Centre for Excellence in HIV/AIDS

Brent B. Olthuis
    and Megan Vis-Dunbar, for the intervener British Columbia Civil Liberties
    Association

Cynthia Petersen,
    Charlene Wiseman, Leslie Robertson and Karin Galldin, for the intervener POWER and Maggie’s


Heard: June
    13-17, 2011

On appeal from
    the judgment of Justice Susan G. Himel of the Superior Court of Justice dated
    September 28, 2010, with reasons reported at 2010 ONSC 4264, (2010), 102 O.R.
    (3d) 321 (S.C.).

Contents

BACKGROUND
.
9


The parties
.
9

The constitutional challenge
.
10

The governments
      response
.
14

The evidence on the application
.
14


THE APPLICATION JUDGES DECISION
.
15


Preliminary matters:
      standing and
stare decisis
.
16

Legislative objectives
.
16

Section
7 of the
Charter
:
      life, liberty and security of the person
.
17

Section 7 of the
Charter
:
      principles of fundamental justice
.
19

Section 2(b) of the
Charter
:
      freedom of expression
.
21

Remedy
.
22

Stay of the application judges
      decision
.
22


THE GOVERNMENTS APPEAL
.
23

ANALYSIS
.
24


Issue 1:  Do Ms.
      Bedford and Ms. Scott have standing to bring the constitutional challenge?

24

Issue 2: Are the respondents
      precluded from challenging the constitutionality of the bawdy-house and
      communicating provisions (ss. 210 and 213(1)(c)) by the decision of the
      Supreme Court in the
Prostitution Reference
, coupled with the principle
      of
stare decisis
?
.
25

The 1990 Prostitution Reference
.
26

The role of precedent

27

Section 7: What did the
Prostitution
      Reference
decide?
.
29

Section 2(b): What did the
Prostitution
      Reference
decide?
.
32

Issues 3 and 4: Does the
      communicating provision (s. 213(1)(c)) infringe s. 2(b) of the
Charter
? 
      If so, is it saved by s. 1?
.
37

Issue 5: Do the challenged provisions

deprive the respondents of the right to life, liberty and security of the
      person as guaranteed by s. 7 of the
Charter
?
.
37

Overview of section 7
.
37

Does the legislation interfere with
      the respondents liberty interest?
.
39

Does the legislation interfere with
      the respondents security of the person?
.
41

(1)

Should
      we address security of the person?
.
41

(2)

The
      meaning of security of the person
.
42

(3)

The
      application judges findings relevant to the security of the person claim
..
43

(4)

The
      appellants arguments
.
45


(a)

The causation argument

46

(b)

Should the findings stand?
.
56



Issues 6, 7 and 8: Does the
      deprivation of the respondents liberty and security of the person accord with
      the principles of fundamental justice?  If not, are the provisions saved by s.
      1 of the
Charter
?  If any of the three challenged provisions is unconstitutional,
      what is the appropriate remedy?
.
64

Overview of the principles of
      fundamental justice
.
64

Do the challenged laws reflect an
      overarching legislative objective of eradicating or discouraging prostitution?
.
68

Do the bawdy-house provisions violate
      the principles of fundamental justice?
.
73

(1)

Legislative
      history and judicial interpretation
.
74

(2)

Objectives
      of the bawdy-house provisions
.
76

(3)

Are
      the bawdy-house provisions arbitrary?
.
80

(4)

Are
      the bawdy-house provisions overbroad?
.
82

(5)

Are
      the bawdy-house provisions grossly disproportionate?
.
84

(6)

Are
      the bawdy-house provisions a reasonable limit under s. 1 of the
Charter
?

88

(7)

What
      is the appropriate remedy to address the s. 7 breach?
.
88

Does the prohibition against living
      on the avails of prostitution violate the principles of fundamental justice?
.
90

(1)

Legislative
      history and judicial interpretation
.
92


(a) The traditional interpretation:
Shaw
          v. Director of Public Prosecutions
.
92

(b) The
Grilo
refinement

93

(c)

The
Barrow

restriction
.
95

(d) Putting it all together: the
          current interpretation of the living on the avails offence

96



(2)

Objective
      of the living on the avails provision
.
97

(3)

Is
      the living on the avails provision arbitrary?
.
98

(4)

Is
      the living on the avails provision overbroad?
.
99

(5)

Is
      the living on the avails provision grossly disproportionate?
.
103

(6)

Is
      the living on the avails provision a reasonable limit under s. 1 of the
Charter
?

104

(7)

What
      is the appropriate remedy to address the s. 7 breach?
.
104

Does the prohibition against
      communicating for the purpose of prostitution violate the principles of
      fundamental justice?
.
111

(1)

Legislative
      history and judicial interpretation
.
112

(2)

Objectives of the communicating provision
.
113

(3)

Is the communicating provision arbitrary?
.
115

(4)

Is the communicating provision overbroad?
.
117

(5)

Is the communicating provision grossly disproportionate?
.
118


(a) The
          application judge under-emphasized the importance of the legislative objective
          of the communicating provision
.
122

(b)The
          application judge over-emphasized the impact of the communicating provision on
          the respondents security of the person
.
124




CONCLUSION
.
131

MacPherson J.A. (Dissenting in part):
133

Doherty, Rosenberg, and Feldman JJ.A.:

[1]

For decades, and even for centuries, governments
    around the world have grappled with prostitution and its associated problems.
    Some have opted for an outright ban. Others have chosen to decriminalize and
    regulate certain aspects of prostitution. Still others have criminalized the
    purchase, but not the sale, of sex.

[2]

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. 
    Parliament has, however, enacted laws that indirectly restrict the practice of
    prostitution by criminalizing various related activities.

[3]

At issue in this case is the constitutionality of three provisions of
    the
Criminal Code
,

R.S.C. 1985, c. C-46, which form the core of
    Parliaments response to prostitution:

1.
Section 210, which prohibits the operation of
    common bawdy-houses.  This prevents prostitutes from offering their services
    out of fixed indoor locations such as brothels, or even their own homes;

2.
Section 212(1)(j), which prohibits living on the
    avails of prostitution.  This prevents anyone, including but not limited to
    pimps, from profiting from anothers prostitution; and

3.
Section 213(1)(c), which prohibits communicating
    for the purpose of prostitution in public.  This prevents prostitutes from
    offering their services in public, and particularly on the streets.

[4]

In the court below, the application judge held that these provisions are
    unconstitutional and must be struck down because they do not accord with the
    principles of fundamental justice enshrined in s. 7 of the
Canadian Charter
    of Rights and Freedoms
.  She reasoned that the challenged laws exacerbate
    the harm that prostitutes already face by preventing them from taking steps
    that could enhance their safety.  Those steps include: working indoors, alone
    or with other prostitutes (prohibited by s. 210); paying security staff
    (prohibited by s. 212(1)(j)); and screening customers encountered on the
    street to assess the risk of violence (prohibited by s. 213(1)(c)).

[5]

As we will explain, we agree with the application judge that the
    prohibition on common bawdy-houses for the purpose of prostitution is
    unconstitutional and must be struck down.  However, we suspend the declaration
    of invalidity for 12 months to give Parliament an opportunity to redraft a
Charter
-compliant
    provision.

[6]

We also hold that the prohibition on living on the avails of
    prostitution infringes s. 7 of the
Charter

to the extent that
    it criminalizes non-exploitative commercial relationships between prostitutes
    and other people.  However, we do not strike down that prohibition, but rather
    read in words of limitation so that the prohibition applies only to those who
    live on the avails of prostitution in circumstances of exploitation.  This
    cures the constitutional defect and aligns the text of the provision with the
    vital legislative objective that animates it.

[7]

We do not agree with the application judges conclusion that the ban on
    communicating in public for the purpose of prostitution is unconstitutional,
    and we allow the appeal on that issue.

[8]

The application judges decision has been subject to a stay pending further
    order of this court.  As we will explain, we extend the stay for 30 days from the
    date of the release of these reasons so that all parties can consider their
    positions.  The practical effect is:

·

The declaration of invalidity in respect of the bawdy-house
    provisions is suspended for one year from the date of the release of these
    reasons.

·

The amended living on the avails provision takes effect 30 days
    from the date of the release of these reasons.

·

The communicating provision remains in full force.

[9]

One important point before we begin.  Prostitution is a controversial
    topic, one that provokes heated and heartfelt debate about morality, equality,
    personal autonomy and public safety.  It is not the courts role to engage in that
    debate.  Our role is to decide whether or not the challenged laws accord with
    the Constitution, which is the supreme law of the land.  While we have
    concluded that some aspects of the current legislative scheme governing
    prostitution are unconstitutional, it remains open to Parliament to respond
    with new legislation that complies with the requirements of the
Charter
.

BACKGROUND

The parties

[10]

Terri
    Jean Bedford is a 52-year-old woman who has worked as a prostitute
[1]
in various Canadian cities, including Calgary, Vancouver, Windsor and Toronto.
    Over the years she has worked as a street prostitute, a massage parlour
    attendant, an escort, an owner and manager of an escort agency, and a
    dominatrix. She hopes to resume work as a dominatrix if this litigation is
    successful.  She is not currently working as a prostitute.

[11]

Amy
    Lebovitch is a 33-year-old woman who has worked as a prostitute in Montreal,
    Ottawa and Toronto.  She has worked as a street prostitute, as an escort, and
    in a fetish house.  She currently works independently as a prostitute out of
    her own home.  She has taken courses in criminology and psychology at the
    University of Ottawa and in social work at Ryerson University.

[12]

Valerie
    Scott is a 53-year-old woman who has worked as a street prostitute and a
    massage parlour attendant.  She has also worked independently from her home and
    in hotels.  She is currently the executive director of Sex Professionals of
    Canada, a group that advocates for the decriminalization of prostitution
    offences.  Like Ms. Bedford, she would like to resume working as a prostitute
    in an indoor location if this litigation is successful.

The constitutional
    challenge

[13]

Ms.
    Bedford, Ms. Lebovitch and Ms. Scott (the respondents) brought an application
    in the Superior Court of Justice under rule 14.05(3)(g.1) of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194,
[2]
seeking a declaration that ss. 210, 212(1)(j) and 213(1)(c) of the
Criminal
    Code
are unconstitutional.  The relevant parts of those sections provide:

210.
    (1)  Every one who keeps a common bawdy-house is guilty of an indictable
    offence and liable to imprisonment for a term not exceeding two years.

(2) 
    Every one who

(a)  is an
    inmate of a common bawdy-house,

(b)  is
    found, without lawful excuse, in a common bawdy-house, or

(c)  as
    owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or
    control of any place, knowingly permits the place or any part thereof to be let
    or used for the purposes of a common bawdy-house,

is
    guilty of an offence punishable on summary conviction.

212. (1) Every one who



(j)
    lives wholly or in part on the avails of prostitution of another person,

is guilty of an indictable offence and
    liable to imprisonment for a term not exceeding ten years.

213(1) Every person who in a public place or in any place
    open to public view



(c)
    stops or attempts to stop any person or in any manner communicates or attempts
    to communicate with any person for the purpose of engaging in prostitution or
    of obtaining the sexual services of a prostitute

is guilty of an offence punishable on
    summary conviction.

[14]

The
Criminal Code
provides definitions for some of the words in these provisions in
    s. 197(1):

common
    bawdy-house means a place that is

(a)
    kept or occupied, or

(b)
    resorted to by one or more persons

for the purpose of prostitution or the
    practice of acts of indecency;

prostitute means a person of either
    sex who engages in prostitution;

public place includes any place to
    which the public have access as of right or by invitation, express or implied.

[15]

In
    addition to the definition provided in s. 197(1), s. 213(2) defines public
    place as including any motor vehicle located in a public place or in any
    place open to public view.

[16]

The
    practical effect of these provisions is that there is only one way to sell sex
    in Canada without risking criminal sanction.  This is what is referred to as
    out-call work, where a prostitute meets a customer at an indoor location such
    as a hotel room or the customers home.

[17]

In-call
    work, where the prostitute services customers from a fixed indoor location such
    as her
[3]
home or a commercial brothel, is prohibited by the bawdy-house provisions.

[18]

Although
    providing sexual services to customers encountered on the street is not itself
    illegal, communicating the willingness to provide such services is prohibited
    by the communicating provision.  Street prostitution is therefore effectively
    illegal.

[19]

Finally,
    the prohibition against living on the avails of prostitution targets anyone who
    provides goods or services to prostitutes, because they are prostitutes.  This
    encompasses not only pimps who exploit prostitutes for their own purposes, but
    anyone who derives profit from the prostitution of others.  This makes it
    illegal for a prostitute to pay someone to protect her, or to assist in any
    aspect of her work as a prostitute.

[20]

The
    respondents argued that these provisions deprive them of the right to life,
    liberty and security of the person protected by s. 7 of the
Charter
,
    that the deprivation does not accord with the principles of fundamental
    justice, and that the provisions cannot be justified under s. 1
.
They
    also argued that the communicating provision violates the guarantee of freedom
    of expression in s. 2(b) of the
Charter
and cannot be justified
    under s. 1.  Those sections of the
Charter

state:

1.
The
Canadian
    Charter of Rights and Freedoms
guarantees the rights and freedoms set out in it subject only to such
    reasonable limits prescribed by law as can be demonstrably justified in a free
    and democratic society.

2. 
    Everyone has the following fundamental freedoms:



(b)
    freedom of  expression

.

7. 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.

The governments response

[21]

The
    Attorney General of Canada, supported by the intervener the Attorney General of
    Ontario,
[4]
opposed the application on two principal grounds.  First, the Attorney General
    argued that the Supreme Courts decision in
Reference Re ss. 193 and
    195.1(1)(c) of the Criminal Code (Man.)
, [1990] 1 S.C.R. 1123 (
Prostitution
    Reference
), coupled with the principle of
stare decisis

(the
    doctrine of binding precedent), prevented the application judge from
    considering or reconsidering the constitutionality of the bawdy-house and
    communicating provisions (ss. 210 and 213(1)(c)).  In the
Prostitution
    Reference
, the Supreme Court held that both of these provisions did not
    violate the
Charter
.

[22]

Second,
    in the event that the application judge decided that the
Prostitution
    Reference
was not binding, the Attorney General submitted that the respondents
    failed to meet their evidentiary burden of proving a violation of their s. 7
    rights.  The Attorney General argued that the challenged laws do not create the
    risk to prostitutes; rather, the risk to prostitutes is inherent in the nature
    of prostitution itself.

The evidence on the application

[23]

The application record in this case comprised
    over 25,000 pages of evidence in 88 volumes.  Much of the evidence was in the
    form of affidavits, and cross-examination on some of those affidavits, tendered
    by people affected by prostitution.  The witnesses included current and former
    prostitutes, police officers, a Crown attorney, a representative of an
    organization that seeks to improve the safety and work conditions of
    prostitutes and to assist them in leaving the occupation, a politician
    concerned about the victimization of street prostitutes, and a journalist who
    has written extensively on the sex trade.

[24]

The parties also tendered extensive expert
    evidence on the social, political and economic dimensions of prostitution in
    Canada, as well as many government studies  federal, provincial and municipal
     that have been produced in the last 25 years. Finally, the parties tendered
    evidence regarding the social and legal context of prostitution in several
    foreign jurisdictions, including the Netherlands, Germany, Sweden, Australia,
    New Zealand and the United States.

THE APPLICATION JUDGES
    DECISION

[25]

The
    application judge heard evidence and argument over seven days in October 2009,

and released her judgment the following September.  Her reasons, which
    total 541 paragraphs, provide a full accounting of the facts and the evidence
    before her.  Accordingly, we will not repeat the application judges work, and
    will refer to the record only as needed to address the legal issues raised on
    the appeal.

Preliminary matters: standing and
stare
    decisis


[26]

The application judge dealt with two preliminary matters before
    turning to the merits of the constitutional challenge. First, she held that all
    the respondents had private interest standing to challenge the three provisions
    of the
Criminal Code
.
In so holding,
    the application judge rejected the Attorney General of Canadas attempt to
    distinguish between Ms. Lebovitch, who currently works as a prostitute, and Ms.
    Bedford and Ms. Scott, both of whom worked as prostitutes in the past and wish
    to return to this type of work in the future.

[27]

Second, the application judge acknowledged, at
    para. 66, that the Supreme Courts decision in the
Prostitution
    Reference
was 
prima facie
binding on this court with respect to the bawdy-house and
    communicating provisions.  Nevertheless, she concluded, at para. 75, that she
    was not foreclosed from hearing the application because the issues argued in
    this case are different than those argued in the
Prostitution
    Reference
.

Legislative objectives

[28]

After summarizing the voluminous evidence
    tendered on the application, the application judge discussed the legislative
    objectives of the three challenged provisions of the
Criminal Code
.

[29]

Relying principally on
R. v. Rockert
, [1978] 2 S.C.R. 704, the application judge stated, at para. 242,
    that the objectives of the bawdy-house provisions (i.e. the definition of
    common bawdy-house in s. 197(1) and the prohibition in s. 210) are combating
neighbourhood
disruption or disorder, and safeguarding public health and safety.

[30]

Relying principally on
Shaw v.
    Director of Public Prosecutions
, (1961) [1962] A.C. 220
    (H.L.), and
R. v. Downey
, [1992] 2 S.C.R. 10,
    the application judge held, at para. 259, that the prohibition on living on the
    avails of prostitution (s. 212(1)(j)) is aimed at preventing the
    exploitation of prostitutes and profiting from prostitution by pimps.

[31]

Relying exclusively on the
Prostitution
    Reference
, and in particular Dickson C.J.s reasons,
    the application judge held, at para. 274, that the objective of the
    communicating provision (s. 213(1)(c)) is to curtail street solicitation and
    the
social
nuisance which it creates (emphasis in application judges
    reasons).

Section
7 of the
Charter
:
    life, liberty and security of the person

[32]

Citing
Re B.C. Motor Vehicle Act
,

[1985] 2 S.C.R. 486,
    and the
Prostitution Reference,
the
    application judge held, at para. 281, that [t]he availability of imprisonment
    [i.e. a deprivation of liberty] for all of the impugned provisions is sufficient
    to trigger s. 7 scrutiny.  After a careful review of the competing expert
    evidence on this point, the application judge also held that the challenged
    provisions engage the respondents security of the person.  This conclusion
    rested on three related findings.

[33]

First, prostitutes in Canada face a high risk of
    physical violence, though the application judge noted that most of the evidence
    on this point related to street prostitutes (para. 293).

[34]

Second, the risk of violence can be reduced,
    although not necessarily eliminated, if prostitutes are able to take basic
    precautions such as working indoors, being in close proximity to people who can
    intervene if needed, taking time to screen customers, having regular customers,
    and planning an escape route  (paras. 300-301).

[35]

Third, the challenged provisions prevent
    prostitutes from taking precautions that can reduce the risk of violence.  The
    application judge explained at paras. 361-362:

With
    respect to s. 210, the evidence suggests that working in-call is the safest way
    to sell sex; yet, prostitutes who attempt to increase their level of safety by
    working in-call face criminal sanction.  With respect to s. 212(1)(
j
),
    prostitution, including legal out-call work, may be made less dangerous if a
    prostitute is allowed to hire an assistant or a bodyguard; yet, such business
    relationships are illegal due to the living on the avails of prostitution
    provision. Finally, s. 213(1)(
c
) prohibits street prostitutes, who are
    largely the most vulnerable prostitutes and face an alarming amount of
    violence, from screening clients at an early, and crucial stage of a potential
    transaction, thereby putting them at an increased risk of violence.

In
    conclusion, these three provisions prevent prostitutes from taking precautions,
    some extremely rudimentary, that can decrease the risk of violence towards
    them. Prostitutes are faced with deciding between their liberty and their
    security of the person.  Thus, while it is ultimately the client who
    inflicts violence upon a prostitute, in my view the law plays a sufficient
    contributory role in preventing a prostitute from taking steps that could
    reduce the risk of such violence.

Section 7 of the
Charter
: principles of fundamental
    justice

[36]

Having found that the challenged provisions
    contribute to a deprivation of the respondents liberty and security of the
    person, the application judge considered whether the deprivation
accorded
with the principles of fundamental justice.  In particular, she
analysed
whether or not the challenged provisions, separately or together,
    are arbitrary or overbroad, or if their effects are grossly disproportionate to
    their legislative objectives.

[37]

The application judge held that the prohibition
    on bawdy-houses is not arbitrary in and of itself because it is directed toward
    the legislative objectives of combating
neighbourhood
disruption or disorder, and safeguarding public health and safety.  However,
    she held, at para. 385, that the prohibition is arbitrary when it is considered
    in concert with the other challenged provisions, because the cumulative effect
    of the legislative scheme may actually be to exacerbate the social problems
    caused by prostitution.

[38]

The application judge went on to hold that the
    bawdy-house prohibition is overbroad because it catches not just large-scale
    commercial establishments, but also prostitutes working discreetly and
    independently out of their own homes (paras. 400-401).  She further held that
    s. 210 is grossly disproportionate because, while the evidence demonstrated
    that nuisance complaints arising from bawdy-houses are rare, the bawdy-house
    prohibition has a drastic impact on the respondents security of the person by
    preventing them from working in the relative safety of a permanent indoor
    location (paras. 427-428).

[39]

The application judge then considered the
    prohibition against living on the avails of prostitution under s. 212(1)(j), and
    concluded that it violates all three principles of fundamental justice under consideration.
    The reasoning underpinning her conclusions was the same in relation to each
    principle of fundamental justice.  In essence, the application judge held that
    while the prohibition against living on the avails of prostitution is targeted
    at pimps who exploit the prostitutes under their control, the provision is so
    broad that it encompasses anyone who provides business services to prostitutes,
    because they are prostitutes.  It therefore
captures not just pimps, but
    drivers, bodyguards, and others who could protect prostitutes from harm.  This
    forces prostitutes to choose between working alone, which increases their
    vulnerability, or working with people willing to risk a charge under s.
    212(1)(j), which potentially puts them at the mercy of the very people the law
    targets in the first place: pimps (paras. 379, 402, and 432-434).

[40]

Turning
    to the ban on communicating in public for the purpose of prostitution in s.
    213(1)(c), the application judge found that the provision is sufficiently
    connected to the objective of combating social nuisance as to be neither
    arbitrary nor overbroad.  However, she concluded that by forcing street
    prostitutes to forego screening customers, which she found to be an essential
    tool to enhance prostitutes safety, the effect of the law is grossly
    disproportionate to its goal of curbing problems such as noise and congestion
    caused by street prostitution (paras. 432-439).

[41]

Finally,
    the application judge determined that since the effects of all the challenged
    provisions are grossly disproportionate to their legislative objectives, none
    could be upheld as a reasonable limit under s. 1 of the
Charter
.

Section 2(b) of the
Charter
: freedom of expression

[42]

Applying the
Prostitution Reference
, the application judge declared that the communicating provision
    constituted a
prima facie
infringement of s.
    2(b) of the
Charter
.

[43]

Departing from the
Prostitution
    Reference
because of the changed context in the 20
    years since that case was decided, the application judge concluded that the
    communicating provision could not be saved by s. 1 of the
Charter
. She explained, at para. 471:

In
    my view, as a result of the changed context, the impugned provision can no
    longer be considered to be sufficiently tailored to its objective and does not
    meet the minimal impairment test.  The expression being curtailed is not
    purely for an economic purpose, but is also for the purpose of guarding
    personal security, an expressive purpose that lies at or near the core of the
    guarantee.

Remedy

[44]

The application judge declared that all three of
    the challenged provisions are unconstitutional.  Applying the principles set
    down in
Schachter v. Canada
, [1992] 2 S.C.R.
    679, she struck down the living on the avails and communicating provisions (ss.
    212(1)(j) and 213(1)(c)).  She struck down the prohibition on bawdy-houses for
    the purpose of prostitution by striking the word prostitution from the definition
    of common bawdy-house in s. 197(1).  This remedy did not affect the
    prohibition on bawdy-houses for acts of indecency, as the respondents had not
    challenged this aspect of the law.  It also left intact other, unchallenged
    provisions of the
Criminal Code

that
    reference common bawdy-houses for purposes of prostitution, such as the
    procuring and concealing offences in s. 212(1)(b), (c), (e) and (f).

Stay of the application
    judges decision

[45]

The application judge stayed her decision for 30
    days, later extended for a further 30 days.  This stay was continued through
    orders of this court and remained in effect until further order.

THE GOVERNMENTS APPEAL

[46]

The Attorney General of Canada, joined by the
    Attorney General of Ontario, raise the following issues on appeal:

1.

Do Ms. Bedford and Ms. Scott have standing to bring the
    constitutional challenge?

2.

Are the
    respondents precluded from challenging the constitutionality of the bawdy-house
    and communicating provisions (ss. 210 and 213(1)(c)) by the decision of the
    Supreme Court in the
Prostitution Reference
, coupled with the principle of
stare
    decisis
?

3.

Does the
    communicating provision (s. 213(1)(c)) infringe s. 2(b) of the
Charter
?

4.

If the
    answer to question (3) is yes, is this provision saved by s. 1 of the
Charter
?

5.

Do the
    challenged provisions deprive the respondents of the right to life, liberty and
    security of the person as guaranteed by s. 7 of the
Charter
?

6.

If so, does
    the deprivation accord with the principles of fundamental justice?

7.

If the
    answer to question (6) is no, are these provisions saved by s. 1 of the
Charter
?

8.

If any
    of the three challenged provisions is unconstitutional, what is the appropriate
    remedy?

[47]

Twelve
    organizations were granted intervener status on this appeal.  Five interveners
    or groups of interveners supported the application judges decision.  One group
    of interveners opposed it.  One intervener representing several different
    womens organizations advocated for the asymmetrical criminalization of
    prostitution (i.e. prohibiting the purchase, but not the sale, of sex) as an
    alternative to these positions.

ANALYSIS

Issue 1:  Do Ms. Bedford and Ms. Scott
    have standing to bring the constitutional challenge?

[48]

As we explained above, the Attorney General of
    Canada conceded that Ms. Lebovitch has standing to challenge the
Criminal
    Code
provisions because she was working as a prostitute
    at the time the application was launched. However, the Attorney General
    contested Ms. Bedfords and Ms. Scotts standing to make the same challenge
    because they were not working as prostitutes at the material time. The
    application judge rejected this as a meaningless distinction and concluded that
    all three women had the requisite standing.

[49]

In three paragraphs in its 188-paragraph factum,
    the Attorney General of Canada renews its objection to Ms. Bedfords and Ms.
    Scotts standing. However, counsel for the Attorney General made no oral
    submissions on this issue in their full day of argument. The Attorney General
    of Ontario did not raise the issue in its written or oral submissions.

[50]

There is a simple reality here. Ms. Lebovitch
    has private interest standing to challenge the three
Criminal Code
provisions. Neither appellant says otherwise. This placed all the
    constitutional issues squarely before the application judge and now places them
    before this court. Accordingly, the issue of Ms. Bedfords and Ms. Scotts
    standing is irrelevant. We decline to address it.

Issue 2: Are the respondents precluded from challenging
    the constitutionality of the bawdy-house and communicating provisions (ss. 210
    and 213(1)(c)) by the decision of the Supreme Court in the
Prostitution
    Reference
, coupled with the principle of
stare decisis
?

[51]

The Attorney General of Canada contends that the
    application judge was bound by the
Prostitution Reference
and

erred by departing from that binding precedent to
    consider the constitutionality of the bawdy-house provision (s. 210) and the
    communicating provision (s. 213(1)(c)).  The Attorney General of Canada
    does not dispute that it was open to the application judge to consider the
    constitutionality of the living on the avails provision (s. 212(1)(j)), which
    was not at issue in the
Prostitution Reference
.

[52]

As we will explain, we conclude that the
    application judge did not err in considering whether or not the bawdy-house and
    communicating provisions violate s. 7 of the
Charter
.  The reason is that both the legal issues raised, and the legal
    framework to be applied, are different now than they were at the time of the
Prostitution
    Reference
.  By contrast, we conclude that the application
    judge erred in reconsidering whether or not the communicating provision is an
    unjustified infringement of s. 2(b) of the
Charter
.  The Supreme Court definitively decided this issue in the
Prostitution
    Reference
, and only that court may revisit it.

The 1990 Prostitution Reference

[53]

In the
Prostitution Reference
, the Supreme Court was asked to consider whet
her s. 193 (now
    s. 210) and s. 195.1(1)(c) (now s. 213(1)(c)) of the
Criminal Code
,
    separately or together, violated s. 2(b) or s. 7 of the
Charter
and,
    if so, whether those violations could be justified under s. 1.
The entire court found that s. 195.1(1)(c), the communicating
    offence, infringed s. 2(b) of the
Charter
. Chief
    Justice Dickson, for the majority, upheld

the provision as a reasonable
    limit on expression under s. 1 of the
Charter
,
whereas Wilson and LHeureux-Dubé JJ.
    found that the pr
ovision was not sufficiently tailored
    to its objective to be saved under s. 1.

[54]

With respect to s. 7
,
all

six
    judges held that both the bawdy-house and communicating provisions infringe the
    right to liberty because of the potential for imprisonment.  Five judges found
    it unnecessary to address the question whether s. 7 protects peoples economic
    liberty to pursue their chosen professions. Justice Lamer discussed this issue
    in his concurring reasons.

[55]

With respect to the principles of fundamental
    justice, all the judges considered whether the challenged provisions are void
    for vagueness and whether it is impermissible for Parliament to send out
    conflicting messages whereby the criminal law says one thing but means another
    (i.e. street solicitation is a crime, but prostitution itself is legal). They
    rejected both arguments and found that the liberty infringement accords with
    the principles of fundamental justice.  Accordingly, the constitutional
    challenge to both provisions failed.

The role of precedent

[56]

A brief discussion of precedent will assist in assessing the
    Attorney General of Canadas submission that the constitutionality of the
    bawdy-house and communicating provisions is settled law.  The notion of binding
    precedent, often used interchangeably with the principle of
stare decisis
,
    requires that courts render decisions that are consistent with the previous
    decisions of higher courts.  The rationale for the rule is self-evident: it
    promotes consistency, certainty and predictability in the law, sound judicial
    administration, and enhances the legitimacy and acceptability of the common
    law:
David Polowin Real Estate Ltd. v. The Dominion of Canada General
    Insurance Co
.
(2005),
76 O.R. (3d) 161 (C.A.)
, at paras. 119-120.

[57]

The coverage of the principle of
stare decisis
is
    captured in the dichotomy between
ratio decidendi
and
obiter dicta
.
    As expressed in
Halsburys Laws of Canada, Civil Procedure I
, 1st ed.
    (Markham: LexisNexis Canada, 2008), at p. 282:

To
    employ the traditional terminology:
only the ratio decidendi
    of the prior court decision is binding on a subsequent court
.
The
    term ratio decidendi describes the process of judicial reasoning that was
    necessary in order for the court to reach a result on the issues that were
    presented to it for a decision
.
All other
    comments contained within the reasons of the prior court are termed
obiter
    dicta
,
and in essence
    such incidental remarks are treated as asides. They may have persuasive value,
    but they are not binding. [Emphasis added.]

[58]

However,
    the traditional division between
ratio
and
obiter
has become more
    nuanced.  It is now recognized that there is a spectrum of authoritativeness on
    which the statements of an appellate court may be placed.  Justice Binnie,
    writing for a unanimous Supreme Court, stated in
R. v. Henry
,
2005 SCC 76, [
2005] 3 S.C.R. 609, at para.
    57:

The
    issue in each case, to return to the Halsbury question, is
what did the case
    decide
? Beyond the
ratio decidendi
which  is
    generally rooted in the facts, the legal point decided by this Court may be as
    narrow as the jury instruction at issue in
Sellars
or as broad as
    the
Oakes
test. [Emphasis added.]

[59]

Justice
    Doherty, writing for a unanimous five-judge panel of this court, discussed
Henry
in the recent decision of
R. v. Prokofiew
, 2010 ONCA 423, (2010),
100 O.R. (3d) 401, leave to appeal to S.C.C. granted, [2010]
    S.C.C.A. No. 298, heard and reserved November 8, 2011, at para. 19:

The
    question then becomes the following: how does one distinguish between binding
obiter
in a Supreme Court of Canada judgment and non-binding
obiter
? In
Henry
, at para. 53,
    Binnie J. explains that one must ask,

What does the
    case actually decide
?
 Some cases
    decide only a narrow point in a specific factual context. Other cases  including
    the vast majority of Supreme Court of Canada decisions  decide broader legal
    propositions and, in the course of doing so,
set out legal
    analyses that have application beyond the facts of the particular case
. [Emphasis
    added.]

[60]

These authorities delineate the boundary between binding and
    non-binding statements of the Supreme Court, and they do so based on an inquiry
    into the Courts substantive reasoning process. Applying
Henry

and
Prokofiew
, the
    question becomes: what did the
Prostitution Reference
decide?

Section 7: What did the
Prostitution Reference
decide?

[61]

Section
    7 of the
Charter

has two components: the deprivation of a right
    (life, liberty and security of the person) and a subsequent inquiry into the
    nature of that deprivation (whether it accords with the principles of fundamental
    justice).

[62]

In
    this case, it is tempting to view the questions asked in the
Prostitution
    Reference
, combined with the simple answers given by Dickson C.J., at p.
    1143, as the
ratio
of the case:

Question
:     1. Is s. 193
    of the
Criminal Code of Canada
inconsistent with s. 7 of the
Canadian
Charter of Rights and Freedoms
?

Answer
:       No.


Question
:     2. Is s.
    195.1(1)(c) of the
Criminal Code of Canada
inconsistent with
    s. 7 of the
Canadian Charter of Rights and Freedoms
?

Answer
:       No.

[63]

However,
    we do not think that this comports with the view of
stare decisis

outlined
    above.

[64]

The
    case law is clear that the s. 7 interests of life, liberty and security of the
    person are to be treated as distinct, and they require separate treatment by
    courts:
R. v. Morgentaler
, [1988] 1 S.C.R. 30, at p. 52.

[65]

In
    the
Prostitution Reference
, Dickson C.J. based the majority decision
    on only the physical liberty interest.  He explicitly declined to address
    whether the s. 7 liberty interest could be implicated in an economic
    way, and stated that the
Reference
was not an appropriate forum for
    deciding whether liberty or security of the person could ever apply to any
    interest with an economic, commercial or property component (at pp. 1140-1141). 
    The only member of the Supreme Court to touch on the s. 7 security of the
    person interest, albeit in the sense of an economic security of the person,
    was Lamer J., writing for himself.

[66]

In
    this case, the parties agree that the respondents s. 7 liberty interest is
    engaged by the challenged provisions.  However, the respondents also argue that
    the provisions engage their s. 7 security of the person interest.  This
    independent interest was not considered by the majority in the
Prostitution
    Reference
.

[67]

In
    addition, the number of recognized principles of fundamental justice
    referenced in the second half of s. 7 has expanded over the last 20 years. 
    Whereas in 1990 the Supreme Court considered only vagueness and the perceived
    inconsistency in Parliaments response to prostitution, in this case the
    application judge was asked to evaluate the infringements against the
    principles of arbitrariness, overbreadth, and gross disproportionality.

[68]

The
    principles of fundamental justice at issue in this case were not considered in
    1990 because they had not yet been fully articulated. Arbitrariness and
    overbreadth were only identified as principles of fundamental justice in 1993
    and 1994, respectively:
Rodriguez v. British Columbia (A.G.)
, [1993] 3
    S.C.R. 519;
R. v. Heywood
, [1994] 3 S.C.R. 761.  Gross
    disproportionality emerged as a principle of fundamental justice a decade
    later:
R. v. Malmo-Levine
;
R. v. Caine
, 2003 SCC 74, [2003] 3
    S.C.R. 571.

[69]

Henry

and
Prokofiew

stand for the proposition that the actual
    words of the Supreme Court do not bind lower courts when those words are
    sufficiently tangential to the disposition of the case.  Surely, then, the
silence
of the Supreme Court on independent interests ... which must be given
    independent significance (
Morgentaler
,

at p. 52) cannot
    preclude future consideration of those interests by a court of first instance.

[70]

It
    cannot be said that the
Prostitution Reference
decided the substantive
    s. 7 issues before the application judge in this case.  Therefore,
stare
    decisis
did not apply, and the application judge did not err by conducting
    her own analysis and coming to her own conclusions.

Section 2(b): What did the
Prostitution Reference

decide?

[71]

Unlike
    the s. 7 arguments advanced in respect of the constitutionality of s. 213(1)(c)
    of the
Criminal Code
, the respondents s. 2(b)
Charter
argument
    raises legal issues that were before the Supreme Court in the
Prostitution
    Reference
.

[72]

In
    this proceeding, as in the
Prostitution Reference
, all parties agree
    that s. 213(1)(c) infringes freedom of expression as guaranteed under s.
    2(b) of the
Charter
. The pivotal issue, as in the
Prostitution
    Reference
, is whether that infringement can be justified as a reasonable
    limit under s. 1 of the
Charter
.

[73]

The
    application judge described the
Prostitution Reference
as 
prima
    facie
binding on this court.  However, she referred to a context of
    violence against prostitutes that has changed dramatically since 1990, two
    decades of new research, and an evolving international legal context, and
    concluded that it was appropriate for her to reconsider whether s. 213(1)(c) of
    the
Criminal Code
continued to be a reasonable limit on the
    respondents freedom of expression.  She explained, at para. 83:

In
    my view, the s. 1 analysis conducted in the
Prostitution Reference
ought to be revisited given the
    breadth of evidence that has been gathered over the course of the intervening
    twenty years. Furthermore, it may be that the social, political, and economic
    assumptions underlying the
Prostitution Reference
are no longer valid today. Indeed,
    several western democracies have made legal reforms decriminalizing
    prostitution to varying degrees. As well, the type of expression at issue in
    this case is different from that considered in the
Prostitution
    Reference
. Here, the
    expression at issue is that which would allow prostitutes to screen potential
    clients for a propensity for violence. I conclude, therefore, that it is
    appropriate in this case to decide these issues based upon the voluminous
    record before me.

[74]

The
    Attorney General of Canada argues that the application judge erred by departing
    from the s. 1 analysis found in the
Prostitution Reference
.  We agree
    for the following reasons.

[75]

First,
    the application judge misconceived the principle of
stare decisis
when
    she described the
Prostitution Reference
as only 
prima facie
binding on this court.  With respect, it was much more than that.  The Supreme
    Courts decision that s. 213(1)(c) of the
Criminal Code
is a justified
    limit on freedom of expression was fully binding on the application judge, as
    there was no suggestion that it had been expressly or by implication overruled
    by a subsequent decision of the Supreme Court.  In short, it is for the Supreme
    Court, and only that court, to overrule one of its own decisions.

[76]

This
    is not to say that a court of first instance has no role to play in a case
    where one party seeks to argue that a prior decision of the Supreme Court
    should be reconsidered and overruled based on significant changes in the
    evidentiary landscape.  The court of first instance does have a role in such a
    case, albeit a limited one.  It may allow the parties to gather and present the
    appropriate evidence and, where necessary, make credibility findings and
    findings of fact.  In doing so, the court of first instance creates the
    necessary record should the Supreme Court decide that it will reconsider its
    prior decision.

[77]

The
    application judge relied on
Wakeford v. Attorney General of Canada
(2001), 81 C.R.R. (2d) 342 (Ont. S.C.), affirmed (2001), 156 O.A.C. 385, leave
    to appeal to S.C.C. refused, [2002] S.C.C.A. No. 72. In that case, Swinton J.
    was faced with a motion to dismiss a claim on the basis that the issue had been
    decided by the Supreme Court in
Rodriguez
, the assisted suicide case. 
    She recognized that the Supreme Court could reconsider its prior decisions
    based on new evidence.  She also recognized that claims that sought to reverse
    prior decisions of the Supreme Court should not necessarily fail at the
    pleadings stage.  She indicated, at para. 14, that in such a case the plaintiff
    must present some indication  either in the facts pleaded or in the decisions
    of the Supreme Court  that the prior decision may be open to reconsideration.

[78]

Justice
    Swinton ultimately struck the claim, holding that the plaintiff had not
    provided any basis upon which
Rodriguez
should be reconsidered.  She
    made it clear, at para. 20, that had the plaintiff made out the case for
    reconsideration, that reconsideration would have occurred in the Supreme Court
    and not in the trial court.

[79]

Clearly,
    Swinton J. did not contemplate that had she allowed the matter to proceed, she
    could have reconsidered, and even decided not to follow, the governing decision
    of the Supreme Court.

[80]

The
    application judge also relied on
Leeson v. University of Regina
(2007),
    301 Sask. R. 316 (Q.B.).  However,
Leeson
fails to support the
    proposition that a court of first instance can reconsider and effectively
    overrule a binding precedent from the Supreme Court.  In
Leeson
, the
    court acknowledged that where a plaintiff has alleged changes in the social,
    political and economic assumptions underlying a prior decision of the Supreme
    Court and has alleged some facts that could support those changes, it was not
    appropriate to prevent the plaintiff from proceeding with the claim on the
    basis of
stare decisis
.  This observation would allow the plaintiff to
    build the necessary record, but says nothing about whether any court other than
    the Supreme Court has the power to overrule its prior decision.

[81]

The
    second reason the application judge erred in reconsidering the s. 2(b) claim is
    that she incorrectly equated her position, when asked to reconsider a binding
    decision of the Supreme Court, with the position of a court that is asked to
    reconsider one of its own prior decisions, as in
Polowin Real Estate
. 
    Reasons that justify a court departing from its own prior decision have no
    application to, and cannot justify, a lower courts purported exercise of a
    power to reconsider binding authority from a higher court.

[82]

Third,
    the application judge erred by holding that the binding authority of the
Prostitution
    Reference
could be displaced by recasting the nature of the expression at
    issue as promoting safety, and not merely commercial expression.  This change
    in perspective has not altered the
ratio decidendi

of that
    case, which was that the communicating provision is a reasonable limit on
    freedom of expression.  In coming to this conclusion, the majority applied the
Oakes
test based on the best information available to them at the time.  There may be
    good reasons for the Supreme Court to depart from this holding for all the
    reasons discussed in
Polowin Real Estate
, but that is a matter for the
    Supreme Court to decide for itself.

[83]

In
    our view, the need for a robust application of
stare decisis

is
    particularly important in the context of
Charter

litigation.  Given
    the nature of the s. 1 test, especially in controversial matters, the evidence
    and legislative facts will continue to evolve, as will values, attitudes and
    perspectives.  But this evolution alone is not sufficient to trigger a
    reconsideration in the lower courts.

[84]

If
    it were otherwise, every time a litigant came upon new evidence or a fresh
    perspective from which to view the problem, the lower courts would be forced to
    reconsider the case despite authoritative holdings from the Supreme Court on
    the very points at issue.  This would undermine the legitimacy of
Charter

decisions and the rule of law generally.  It would be particularly
    problematic in the criminal law, where citizens and law enforcement have the
    right to expect that they may plan their conduct in accordance with the law as
    laid down by the Supreme Court.  Such an approach to constitutional
    interpretation yields not a vibrant living tree but a garden of annuals to be
    regularly uprooted and replaced.

[85]

For
    these reasons, it was not open to the application judge to reconsider whether
    s. 213(1)(c) of the
Criminal Code
remains a reasonable limit on the
    freedom of expression protected by s. 2(b) of the
Charter
.

Issues 3 and 4: Does the communicating provision (s.
    213(1)(c)) infringe s. 2(b) of the
Charter
?  If so, is it
    saved by s. 1?

[86]

As
    was the application judge, we are similarly bound by the
Prostitution
    Reference
on these questions.  We allow the appeal on these issues.

Issue 5: Do the
    challenged provisions

deprive the respondents of the right to life,
    liberty and security of the person as guaranteed by s. 7 of the
Charter
?

Overview of section 7

[87]

To
    repeat, s. 7 of the
Charter
declares:

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.

[88]

Although
    the language of the English version of s. 7 might suggest otherwise, the case
    law has established that s. 7 creates a single constitutional right: the right
    not to be deprived of life, liberty and security of the person except in
    accordance with the principles of fundamental justice. There is no freestanding
    right to life, liberty and security of the person:
Canada (Minister of
    Employment and Immigration) v. Chiarelli
, [1992] 1 S.C.R. 711;
Cunningham
    v. Canada
, [1993] 2 S.C.R. 143;
Canadian Foundation for Children,
    Youth and the Law v. Canada (Attorney General)
, 2004 SCC 4, [2004] 1
    S.C.R. 76;
Malmo-Levine; Canada (Attorney General) v. PHS Community
    Services Society
, 2011 SCC 44, [2011] 3 S.C.R. 134;
R. v. Parker
(2000), 49 O.R. (3d) 481 (C.A.); and P.W. Hogg,
Constitutional Law of Canada
,
    5th ed., looseleaf (Toronto: Carswell, 1996), at para. 47.20.  Legislation that
    limits the right to life, liberty and security of the person will attract s. 7
    scrutiny.  It will, however, survive that scrutiny and avoid judicial
    nullification unless it is shown to be contrary to the principles of
    fundamental justice.

[89]

An
    applicant alleging a breach of s. 7 must demonstrate on the balance of
    probabilities that: (1) the challenged legislation interferes with or limits
    the applicants 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.  While
    non-compliance with s. 7 can theoretically be justified under s. 1 of the
Charter
,
    in reality s. 1 will rarely, if ever, trump a s. 7 infringement:
R. v. D.B
.
,
    2008 SCC 25, [2008] 2 S.C.R. 3, at para. 89.

[90]

Criminal
    Code
sections which create crimes, like those challenged on this
    application, interfere with the liberty interest in that they are potentially
    punishable by imprisonment.  Consequently, the outcome of a s. 7 challenge to
    crime-creating legislation will depend on whether the applicant can show that
    the legislation does not accord with the principles of fundamental justice. 
    That phrase is not self-defining.  Its meaning has grown through judicial
    interpretation:
Canadian Foundation
, at paras. 15, 83, 177;
Re
    B.C. Motor Vehicle Act
, at pp. 511-513;
Cunningham
, at pp.
    151-152;
Rodriguez
, at p. 607,
per
Sopinka J., for the
    majority; and
Constitutional Law
in Canada
, at para. 47.33.

[91]

Perhaps
    no area of the law has felt the impact of the expansive interpretation of the
    principles of fundamental justice as much as the substantive criminal law. 
    The Supreme Court has established a catalogue of principles of fundamental
    justice that together fix the minimum substantive standards that crime-creating
    provisions must meet to survive a s. 7 challenge.  Those minimum standards
    include the concepts of arbitrariness, overbreadth and gross
    disproportionality.  The constitutional measurements required by at least one
    of those concepts  gross disproportionality  inevitably draw the court into
    an assessment of the merits of policy choices made by Parliament as reflected
    in legislation.

Does the legislation interfere with the respondents
    liberty interest?

[92]

All
    parties to this appeal agree that the risk of imprisonment flowing from
    conviction for any of the challenged offences is sufficient to engage the
    respondents s. 7 liberty interests: see
Malmo-Levine
, at para. 84.
[5]
Some of the interveners, however, advance a broader liberty claim.  They submit
    that a persons decision to engage in prostitution involves personal life
    choices that are also protected under the right to liberty.  We do not accept
    this submission.

[93]

The
    case law recognizes that the right to liberty extends beyond physical liberty
    to the right to make individual choices that go to the core of personal
    autonomy.  At some point, this concept of liberty must meld with the concept of
    security of the person, which also rests on the principle of personal autonomy.

[94]

To
    this stage in the development of the jurisprudence, the right to liberty as
    manifested in the right to make personal decisions free from state interference
    has been limited to decisions that go to the heart of an individuals private
    existence:
R. v. Clay
, 2003 SCC 75, [2003] 3 S.C.R. 735, at paras.
    31-32.  The decision to engage in a particular commercial activity is not akin
    to the kinds of decisions that have been characterized as so fundamentally and
    inherently personal and private as to fall under the right to liberty.  To
    accept the interveners submission would be to read into s. 7 a constitutional
    protection for what are economic or commercial decisions.  That reading would
    be inconsistent with the deliberate decision to exclude property-related rights
    from the ambit of s. 7: see
Constitutional Law of Canada
, at
    para. 47.7(b).  As stated by Major J. in
Siemens v. Manitoba (Attorney
    General)
, 2003 SCC 3, [2003] 1 S.C.R. 6, at para. 46: The ability to
    generate business revenue by ones chosen means is not a right that is
    protected under s. 7 of the
Charter
.

Does the legislation interfere with the respondents
    security of the person?

(1)


Should we address security of
    the person?

[95]

Interference
    with any one of the rights to life, liberty or security of the person is
    sufficient to engage s. 7 and requires an assessment of the legislation against
    the applicable principles of fundamental justice.  Given that all parties
    accept that the right to liberty is limited by the challenged provisions, it
    may seem unnecessary to decide whether the provisions also interfere with the
    respondents security of the person.

[96]

However,
    we are satisfied that we should address the security of the person claim for
    two reasons.  First, the respondents placed significant, indeed paramount,
    emphasis on their security of the person claim.  Their complaint with the
    legislation is not only that they risk incarceration should they fail to comply
    with the provisions, but that they risk serious harm, or even death, if they do
    comply with them.  Second, the specific nature of the right or rights
    interfered with, and the nature of that interference, are relevant to the
    arbitrariness and gross disproportionality analyses.  The nature and extent of
    the interference with the respondents rights must be identified before the
    court can properly assess a claim that the legislation is inconsistent with the
    principles of fundamental justice.

(2)


The meaning of security of the
    person

[97]

The
    phrase security of the person defies exhaustive definition.  Its meaning is
    best articulated in the context of the specific facts and claims advanced in a
    given case.

[98]

The
    respondents security of the person claim is as follows.  They make their
    living through prostitution.  Prostitution is a lawful commercial activity.  It
    is also a potentially dangerous activity.  Like any sensible person, the
    respondents want to take reasonable steps to make their working environment as
    safe as possible.  They claim that the government is interfering with their
    ability to protect themselves by criminalizing what are rudimentary and obvious
    steps they could take to reduce the risk of physical harm to them while they
    are engaged in the lawful activity of prostitution. In essence, the respondents
    assert that the challenged provisions interfere with their security of the
    person by forcing them to choose between the substantial added risk to personal
    safety that comes with compliance with those provisions and the risk of
    incarceration that comes with non-compliance with those same provisions.

[99]

Properly
    understood, the respondents security of the person claim is about
    self-preservation.  The preservation of ones physical safety and well-being is
    a fundamental component of personal autonomy.  Personal autonomy lies at the
    heart of the right to security of the person.  Thus, laws that prevented or
    unreasonably delayed access to necessary medical care or treatment were held to
    have interfered with the security of the person:
Chaoulli v. Quebec
    (Attorney General)
, 2005 SCC 35, [2005] 1 S.C.R. 791;
Morgentaler
;
PHS
.  Similarly, a law that removed the
    protection of the criminal law assault provisions from children was held to
    have interfered with their security of the person:
Canadian Foundation
,
    at para. 176,
per
Arbour J., dissenting, not on this point.

(3)


The
    application judges findings relevant to the security of the person claim


[100]

The application
    judges central findings of fact concerning the security of the person claim
    are set out in her reasons, at para. 421.  She concluded:

1.

Prostitutes,
    particularly those who work on the street, are at a high risk of being the
    victims of physical violence.

2.

The risk
    that a prostitute will experience violence can be reduced in the following
    ways:

a.

Working
    indoors is generally safer than working on the streets;

b.

Working in
    close proximity to others, including paid security staff, can increase safety;

c.

Taking the
    time to screen clients for intoxication or propensity to violence can increase
    safety;

d.

Having a
    regular clientele can increase safety;

e.

When a
    prostitutes client is aware that the sexual acts will occur in a location that
    is pre-determined, known to others, or monitored in some way, safety can be
    increased;

f.

The
    use of drivers, receptionists and bodyguards can increase safety; and

g.

Indoor
    safeguards including closed-circuit television monitoring, call buttons, audio
    room monitoring, [and] financial negotiations done in advance can increase
    safety.

3.

The
    bawdy-house provisions can place prostitutes in danger by preventing them from
    working in-call in a regular indoor location and gaining the safety benefits of
    proximity to others, security staff, closed-circuit television and other
    monitoring.

4.

The living
    on the avails of prostitution provision can make prostitutes more susceptible
    to violence by preventing them from legally hiring bodyguards or drivers while
    working.  Without these supports, prostitutes may proceed to unknown
    locations and be left alone with clients who have the benefit of complete
    anonymity with no one nearby to hear and interrupt a violent act, and no one
    but the prostitute able to identify the aggressor.

5.

The
    communicating provision can increase the vulnerability of street prostitutes by
    forcing them to forego screening customers at an early and crucial stage of the
    transaction.

[101]

The application
    judges ultimate conclusion, at para. 362, bears repeating:

In
    conclusion, these three provisions prevent prostitutes from taking precautions,
    some extremely rudimentary, that can decrease the risk of violence towards
    them.  Prostitutes are faced with deciding between their liberty and their
    security of the person.
Thus, while it is ultimately the client who
    inflicts violence upon a prostitute, in my view the law plays a sufficient
    contributory role in preventing a prostitute from taking steps that could
    reduce the risk of such violence
.
[Emphasis added.]

(4)


The appellants arguments

[102]

The appellants
    accept that a law that creates a real risk to physical safety or well-being
    interferes with the right to security of the person under s. 7.  The appellants
    maintain, however, that the application judge erred in finding any connection
    between the three challenged provisions and any added risk of physical harm to
    the respondents.  Their submissions challenge both the application judges
    legal analysis of what the appellants call the causation issue and her
    evidentiary findings relevant to that issue.

[103]

The appellants
    attack the evidentiary findings on two fronts.  They argue that the application
    judge made several errors in her approach to the evidence and that these
    processing errors undermine the validity of her ultimate finding that the challenged
    provisions place prostitutes at a greater risk of physical harm.  The
    appellants also argue that, apart from any processing errors, the evidence
    considered as a whole does not support the finding of a connection between the
    challenged provisions and an increase in the risk posed to prostitutes.  This
    latter argument begins with the contention that the application judges finding
    is not owed any deference, and that this court can and must make its own
    assessment of the evidence.  We will address the causation argument first.

(a)     The causation argument

[104]

This is not a
    case like
Rodriguez, Chaoulli
or
Morgentaler
where there is a
    direct causal connection between the challenged legislation and the alleged
    interference with security of the person.  In this case, the challenged
Criminal
    Code
provisions do not directly infringe on the respondents security of
    the person.  For example, the criminalization of the hiring of security does
    not directly compromise prostitutes security of the person.  The respondents
    contend, however, that the criminal prohibitions render prostitutes more
    vulnerable to physical harm caused by third parties.  They argue that the
    indirect effect on their security of the person is sufficient to engage s. 7
    and that legislation cannot escape constitutional scrutiny merely because
    non-state actors are the direct cause of the infringement of that right.

[105]

The appellants
    accept that even where the actions of a third party are directly responsible
    for an interference with security of the person, state conduct can be
    sufficiently implicated in the actions of the third party to render the state
    responsible for that interference under s. 7 of the
Charter
.  The
    appellants contend, however, that there must be a strong causative link between
    the state action and the action that directly interferes with the right
    protected under s. 7.  They submit that a sufficient connection exists only
    where the state action is necessary for, or essential to, the interference
    with the s. 7 interest, or where the state can be said to be complicit in the
    third partys interference with the s. 7 interest.  The appellants maintain
    that the application judge significantly and erroneously lowered the causation
    standard by requiring only that the state action contribute to the
    interference with the respondents security of the person.

[106]

The appellants
    rely to some extent on substantive criminal law causation principles, and to a
    greater extent on a series of decisions examining the constitutionality of
    actions taken by state actors, that indirectly compromised an individuals s. 7
    interests: see
e.g
. Suresh v. Canada
    (Minister of Citizenship and Immigration)
, 2002 SCC 1, [2002] 1 S.C.R. 3;
United
    States v. Burns
, 2001 SCC 7, [2001] 1 S.C.R. 283;
Canada (Prime
    Minister) v. Khadr
, 2010 SCC 3, [2010] 1 S.C.R. 44;
Blencoe v. British
    Columbia (Human Rights Commission)
, 2000 SCC 44, [2000] 2 S.C.R. 307.

[107]

We agree with
    counsel for the respondents that the authorities relied on by the appellants
    are readily distinguishable.  It may be helpful to use a traditional causation
    analysis when deciding whether the actions of a government official are
    sufficiently connected to an infringement of a s. 7 interest to render the
    government responsible for that infringement. However, that analysis is
    inappropriate where legislation is said to have caused the interference with
    the s. 7 interest.  The language of causation does not aptly capture the
    effect of legislation.  Legislation, including legislation that creates crimes,
    is not so much the physical cause of a particular consequence as it is part of
    the factual and social context in which events happen and consequences flow.

[108]

When a court is
    required to decide whether there is a sufficient connection between
    crime-creating legislation and an alleged interference with an individuals
    right to security of the person, the court must examine the effect of that
    legislation in the world in which it actually operates.  This assessment is a
    practical and pragmatic one.

[109]

The court must
    first determine what it is that the legislation prohibits or requires.  This is
    essentially an exercise in statutory interpretation.  The court must next
    determine how the statutory prohibition or requirement impacts on those who
    claim to have suffered a limitation on their right to security of the person
    because of the legislation.  Finally, the court must take the impact of the
    legislation as it is found to be, and determine whether that impact limits or
    otherwise interferes with an individual interest protected by the concept of
    security of the person.  The second and third determinations outlined above
    require findings of fact.  In litigation where the constitutionality of
    legislation is challenged, those findings will usually be based on a blending
    of adjudicative facts, social or legislative facts, judicial notice and common
    sense inferences.  This record contains all those elements.

[110]

We examine the
    relevant provisions in some detail below.  For present purposes, it is
    sufficient to say that on our interpretation, the bawdy-house provisions
    criminalize the practice of prostitution at a fixed indoor location; the living
    on the avails provision criminalizes the use of support and security staff
    funded by the proceeds of the prostitution, regardless of whether the
    relationship is an exploitative one; and the communicating provision prohibits
    any attempt by street prostitutes to screen potential customers by speaking
    with those customers in a public place for the purpose of prostitution.

[111]

On the facts as
    found by the application judge, each of the provisions criminalizes conduct
    that would mitigate, to some degree, the risk posed to prostitutes.  On those
    findings, the relevant
Criminal Code
provisions, individually and in
    tandem, increase the risk of physical harm to persons engaged in prostitution,
    a lawful activity.  They increase the harm by criminalizing obvious, and what
    on their face would appear to be potentially somewhat effective, safety
    measures.  The connection between the existence of the criminal prohibitions
    and the added risk to those engaged in prostitution is, on the facts as found
    by the application judge, not obscure or tangential.  An added risk of physical
    harm compromises personal integrity and autonomy and strikes at the core of the
    right to security of the person.  On the facts as found, the added risk to
    prostitutes takes the form of an increased risk of serious physical harm or
    perhaps even worse.  Any real increase in that kind of risk must impair the
    security of the person: see
Chaoulli
, at para. 123,
per
McLachlin C.J., for the majority.

[112]

The connection
    between the legislation and the security of the person of prostitutes is made
    clearer by a hypothetical that exaggerates, but does not distort, the legal
    reality currently faced by prostitutes on the facts as found by the application
    judge.  Suppose Parliament enacted a provision declaring that the self-defence
    provisions in the
Criminal Code
were not applicable to anyone
    assaulted while engaged in prostitution. Prostitutes under attack or
    apprehending an attack from a customer would have a choice.  They could defend
    themselves and face prosecution for assaulting their attacker or submit and
    risk serious personal injury.  No one would suggest that a law that placed prostitutes
    in that position did not expose them to added risk of physical harm and thereby
    interfere with their security of the person.  It would be no answer to assert
    that the assaults were perpetrated by third parties who were not state actors.

[113]

On the facts as
    found by the application judge, the reality prostitutes face under the present
Criminal
    Code
regime is analogous to, albeit in some circumstances less dangerous
    than, the self-defence hypothetical.  While the challenged
Criminal Code
provisions do not exclude prostitutes from the self-defence provisions, they do
    criminalize obvious and specific steps that prostitutes could take to protect
    themselves while engaged in prostitution.

[114]

We find support
    for our analysis in the Supreme Courts treatment of the contention that the
    claimants right to security of the person was infringed in
PHS
.  In
    that case, the applicants brought a proceeding for a declaration that s. 4(1)
    of the
Controlled Drugs and Substances Act
, S.C. 1996, c. 19 (
CDSA
),
    prohibiting possession of narcotics, was unconstitutional as it applied to
    possession by the applicants at Insite, a supervised injection site located in
    downtown Vancouver.  At Insite, addicts could inject themselves using clean
    equipment and under medical supervision.  Insite had been established by
    provincial health authorities and had operated lawfully for a number of years
    under a federal ministerial exemption from the prohibition against possession
    of narcotics.  That exemption was about to expire and the applicants had been
    advised that it would not be renewed.

[115]

The applicants
    maintained that Insite provided a safe venue at which they could inject
    themselves with the narcotics they needed to feed their drug addictions.  The
    applicants further claimed that if the prohibition against possession of
    narcotics applied to possession at Insite, it would close and the applicants
    would be forced to move from that safe venue to other venues, like alleyways
    and street corners, where the health and safety risks associated with
    self-injection are substantially increased.  The Supreme Court unanimously held
    that the criminal prohibition against possession at the supervised injection
    site interfered with the applicants right to security of the person because
    that criminal prohibition had the effect in the real world in which it operated
    of forcing the applicants to move from a safe injection site to sites where the
    health risks associated with self-injection were much higher.

[116]

We see a
    parallel between the circumstances of drug addicts who, because of a criminal
    prohibition, cannot access a venue where they can safely self-inject and therefore
    must resort to dangerous venues, and prostitutes who, because of criminal
    prohibitions, cannot work at venues using methods that maximize their personal
    safety, but must instead resort to venues and methods where the physical risks
    associated with prostitution are much greater.  In both situations, the
    criminal prohibitions, as interpreted by the courts, operate on those claiming
    the s. 7 breach in a way that interferes with their ability to take steps to
    protect themselves while engaged in a dangerous activity.  In one sense, the
    prostitutes claim is even stronger in that prostitution, unlike the illicit
    possession and use of narcotics, is not an unlawful activity.

[117]

The connection
    between the criminal prohibitions in the three challenged provisions and the
    increased risk of physical harm to prostitutes is not diminished by the
    acknowledged reality that prostitution is inherently dangerous in virtually any
    circumstance.  Nor does it alter the connection between the prohibitions and
    the added risk posed to prostitutes to acknowledge that some prostitutes would
    not avail themselves of any of the safety measures currently criminalized even
    if the criminal prohibitions did not exist.  On the evidence accepted by the
    application judge, many prostitutes would and could take advantage of those
    measures, but for the risk of criminal sanction.   Finally, the inability to
    quantify the added risk to prostitutes flowing from the legislation is no bar
    to a finding of added risk sufficient to engage security of the person.  Where
    the limitation on security of the person is in the nature of an increased risk
    of serious physical harm or worse, virtually any added risk that is beyond
de
    minimis
is sufficient to constitute an infringement on security of the
    person.

[118]

The appellants
    contend that virtually all legislation has the potential to interfere indirectly
    with some manifestation of the right to life, liberty and security of the
    person.  The appellants argue that unless the court requires a strong causal
    connection between the legislation and the alleged infringement, s. 7 will
    become dangerously overextended.

[119]

We do not share
    the appellants concern.  A finding that legislation limits a claimants
    security of the person does not determine the constitutionality of the
    legislation, nor affect its operation.  That finding only subjects the
    challenged legislation to a principles of fundamental justice analysis.

[120]

The appellants
    concern about overreaching in s. 7 is particularly misplaced in respect of
    legislation that creates criminal offences.  As indicated above, that
    legislation will inevitably be subject to a principles of fundamental justice
    analysis because it will always engage the liberty interest.  A determination
    that it also engages the security of the person interest does not, therefore,
    subject legislation to s. 7 scrutiny where it would not otherwise have been
    subject to that scrutiny.  It merely permits a principles of fundamental
    justice analysis that considers the full impact of the legislation on s. 7
    rights.

[121]

The analysis and
    outcome in
PHS
also belies the appellants contention that the courts
    must impose a strong causation requirement before finding a link between
    interference with s. 7 interests and legislation.  As outlined above, the
    Supreme Court held that the prohibition against possession of narcotics at Insite
    infringed the addicted persons security of the person.  The court went on, however,
    to hold that the prohibition, considered in the context of the entire
CDSA
,
    was consistent with the principles of fundamental justice and did not violate
    s. 7.  In
PHS
, the constitutional failing was not with the legislation
    creating the criminal prohibition, but with the Ministers exercise of his
    discretion under another section of that legislation which effectively shut
    Insite down.

[122]

The appellants
    also submit that the real cause of any infringement on the respondents
    security of the person rests in their decision to engage in prostitution.  That
    decision, according to the appellants, is a matter of personal choice that
    inevitably places the respondents at risk.  The appellants contend that the
    personal decision to engage in prostitution, an inherently dangerous and
    anti-social activity, effectively breaks the causal chain between any added
    risk of harm and the criminal prohibitions that limit the venues at which, and
    the manner in which, the respondents can conduct the very dangerous activity
    they have chosen.

[123]

This submission
    must fail.  It implies that those who choose to engage in the sex trade are for
    that reason not worthy of the same constitutional protection as those who
    engage in other dangerous, but legal enterprises.  Parliament has chosen not to
    criminalize prostitution.  In the eyes of the criminal law, prostitution is as
    legal as any other non-prohibited commercial activity.  A claim that a criminal
    law prohibition increases the risk of physical harm to persons who engage in
    prostitution must, for the purpose of the security of the person analysis, be
    examined in the same way as any other claim that a criminal law prohibition
    increases the risk of physical harm to persons engaged in any other lawful
    commercial activity.

[124]

Nor, in our view,
    is the appellants position assisted by the claim that while Parliament has
    chosen not to criminalize prostitution, it has chosen to try to eradicate
    prostitution through criminalizing many related activities.  We address this
    submission later in these reasons when considering the application of the
    principles of fundamental justice.  Suffice it to say here that we do not
    accept that one of the objectives of the challenged legislation is to eradicate
    prostitution through the criminalization of related activity.  However, even if
    that were the legislative intent, the respondents security of the person
    interest would nonetheless be infringed by the legislation.  The legislative
    objectives do not play a role in determining whether legislation interferes
    with the right to life, liberty and security of the person.  The legislative
    objectives become important when examining whether any infringement is
    inconsistent with the principles of fundamental justice.

[125]

If the
    application judges findings stand, her conclusion that the challenged
    provisions, individually and taken together, limit the respondents security of
    the person is unassailable.  We turn now to the challenges to those findings.

(b)     Should the findings stand?

[126]

We will first
    determine the appropriate standard of appellate review.  The application
    judges conclusion that the relevant
Criminal Code
provisions interfere
    with the respondents security of the person was predicated on her findings
    that:

·

prostitution is inherently dangerous for prostitutes;

·

there are safety enhancing measures that prostitutes can take
    to mitigate the risk of physical harm;

·

each of the challenged
Criminal Code
provisions
    criminalizes at least one safety enhancing measure that prostitutes could
    take to reduce the danger of physical harm; and

·

the criminalization of measures that could make prostitution
    safer has the effect of increasing the risk of physical harm to prostitutes who
    engage in prostitution.

[127]

The appellants
    contend that all the findings outlined above are properly characterized as
    social or legislative findings of fact and not as adjudicative findings of
    fact.  The characterization is important because findings of social or
    legislative fact are not accorded the strong appellate deference given to
    adjudicative fact-finding:
RJR-MacDonald Inc. v. Canada (Attorney General)
,
    [1995] 3 S.C.R. 199, at pp. 285-289,
per
LaForest J., dissenting, but
    not on this point;
Harper v. Canada (Attorney General)
, 2004 SCC 33,
    [2004] 1.S.C.R. 827, at paras. 93-99.

[128]

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: see
R. v. Spence
, 2005 SCC
    71, [2005] 3 S.C.R. 458, at paras. 56-59.

[129]

We accept the
    submission that the application judges findings underlying her conclusion that
    the challenged provisions interfere with the security of the person are
    findings in the nature of social and legislative facts.  This was not
    litigation about whether a particular persons security of the person was
    infringed by a specific event.  This litigation approached the constitutional
    claims from a much broader societal perspective.  The findings made by the
    application judge reflect that perspective, as should the review of those
    findings by this court.  We do not defer to the application judges findings,
    but rather assess the record to come to our own conclusion on the social and
    legislative facts underlying the application judges finding that the
    respondents security of the person is impaired by the relevant legislation.

[130]

In making our
    own assessment, however, we are assisted by the application judges careful
    review of the voluminous record and her assessment of the reliability and
    usefulness of some of the evidence.  To the extent that the application judge
    found the evidence of affiants in respect of specific events and occurrences
    credible or incredible, we defer to those findings absent some demonstrated
    flaw in them.  Similarly, to the extent that the application judge found some
    of the expert evidence to be tainted by a lack of objectivity or other similar
    concerns, we defer to those findings absent a demonstration of some error in
    the reasoning underlying the particular finding.

[131]

We pause before
    turning to our assessment of the evidence as it relates to the respondents
    security of the person claim to note that the application judge also made
    findings underlying her application of the concepts of arbitrariness,
    overbreadth, and gross disproportionality.  Those findings were based on
    legislative facts and, to some extent, social facts.  When we come to analyse
    the arbitrariness, overbreadth and gross disproportionality claims, we will
    treat her findings on those issues as we do her findings relating to the
    security of the person argument.  We will not defer to those findings.

[132]

We begin our
    assessment of the application judges findings as they relate to the security
    of the person claim by examining the legal regime under which prostitutes
    operate in Canada.

[133]

As we have
    explained, prostitution is not criminal or in any way illegal.  However, many
    activities that would be lawful in any other context are criminal if done in
    relation to prostitution.  The application record is replete with testimony
    from individuals who have firsthand knowledge of how the present legal regime
    operates and the impact it has on prostitutes engaged in prostitution.  In our
    view, that experiential evidence, buttressed by observations in several
    government reports, makes a very strong case for the respondents claim that
    the legislation puts them at added risk of serious physical harm.

[134]

We also agree
    with counsel for the respondents submission that much of what the experiential
    witnesses said about the impact of the challenged
Criminal Code
provisions
    on their lives as prostitutes is self-evident and exactly what one would
    expect.  Everyone agrees that prostitution is a dangerous activity for
    prostitutes.  It seems obvious that it is more dangerous for a prostitute if
    she goes to some unknown destination controlled by the customer, rather than
    working at a venue under the prostitutes control at which she can take steps
    to enhance safety.  The advantages of home field are well understood by
    everyone.  The non-exploitative conduct criminalized by the living on the avails
    provision and the communicative conduct criminalized by the communicating
    provision contribute in an equally self-evident manner to potential risks to
    prostitutes.

[135]

In holding that
    the negative impact of the legislation on prostitutes is obvious, we do not
    mean to understate the complexities and difficulties of the social problems associated
    with prostitution.  However, those complexities and the many possible legislative
    responses to them are not germane to the question at hand.  Like the application
    judge, we are satisfied that the current legal regime, and specifically the
    challenged
Criminal Code
provisions, interferes with prostitutes
    security of the person.

[136]

We turn next to
    the alleged processing errors.  The appellants submit that the application
    judge made three errors in the way she approached or processed the evidence,
    particularly the expert evidence.  First, counsel for the Attorney General of
    Canada argues that the application judge did not properly exercise the role of
    gatekeeper in assessing the admissibility of some of the expert evidence
    offered by the respondents.  We disagree. The application judge was alive to
    the principles governing the admissibility of expert evidence and the risks
    associated with that kind of evidence: paras. 104-113.  With the agreement of
    all parties, she did not engage in a separate admissibility inquiry, but
    instead factored the considerations relevant to the exercise of her
    gatekeeper function into her ultimate assessment of the expert evidence:  para.
    352.  The application judge can hardly be criticized for following the approach
    agreed upon by counsel.  The appellants have failed to show that the approach
    taken by the application judge could possibly have prejudiced their case.

[137]

The second
    processing error alleged by the appellants also relates to the application
    judges treatment of the expert evidence.  They contend that the application
    judge failed to adequately explain why she accepted the evidence of certain
    experts and rejected the evidence of others.  Counsel submits that because the
    expert evidence was crucial to the findings underlying the s. 7 analysis, the
    application judges failure to adequately explain her evidentiary preferences
    prevents effective appellate review of her s. 7 analysis.

[138]

This submission
    proceeds from the erroneous premise that if more could have been said to
    explain why a decision was made, then what was said must be inadequate.  It is
    clear from our review of the entirety of the application judges reasons that
    she understood the thrust of the expert evidence and she carefully assessed it.
    The application judge was aware of the general limitations on all the expert
    evidence, as well as certain specific problems associated with the evidence
    given by particular experts.  As she repeatedly indicated, her findings were
    ultimately based on the entirety of the record.  Her detailed review of that
    record and her explicit findings of fact provide a full explanation of how she
    arrived at the conclusions she did.  Far from preventing appellate review, her
    reasons facilitate it.

[139]

The third
    processing error is advanced by counsel for the Attorney General of Ontario. 
    She submits that the application judge erred in making any definitive finding
    as to the effect of the challenged provisions on the physical safety of
    prostitutes.  Counsel argues that the evidence demonstrated that prostitution
    presents intractable social problems for which there is no single, clear, and
    effective solution.  She submits that the application judge should have
    declined to enter into this policy thicket and should have simply acknowledged
    that the conflicting evidence provided a reasonable basis for the policy
    choices reflected in the relevant
Criminal Code
provisions.

[140]

The approach
    urged by counsel for the Attorney General of Ontario is appropriate in division
    of power cases where a government is defending its authority to enact
    legislation, in some aspects of a government claim that legislation is
    justified under s. 1 of the
Charter
, and in cases where the government
    is answering a claim that its legislation is inconsistent with certain
    principles of fundamental justice under s. 7.  In those contexts, it may be
    enough, at least in respect of parts of the claims, that the government
    demonstrate a rational basis for its legislative choices:
Constitutional
    Law
of Canada
, at para. 60.2(f);
R. v. Sharpe
, 2001 SCC 2,
    [2001] 1 S.C.R. 45, at paras. 84-89;
Malmo-Levine
, at paras. 78 and 134.

[141]

The approach
    urged by the Attorney General of Ontario is, however, inappropriate at the
    first stage of the s. 7 inquiry.  The respondents have alleged that the
    legislation interferes with their security of the person.  They carried the
    burden of proving that interference on the balance of probabilities.  If they
    met that burden, the deprivation is established and the s. 7 inquiry moves to a
    consideration of the applicable principles of fundamental justice.  If the
    respondents failed to meet their burden, their s. 7 security of the person claim
    would fail.  The reasonableness of the policy choices animating the legislation
    and the reasonableness of the legislation itself are irrelevant to whether the
    respondents established that the legislation interfered with some component of
    their right to security of the person.  The application judge could not decline
    to enter upon the factual inquiry essential to a determination whether the
    respondents security of the person claim failed or succeeded.

[142]

We affirm the
    application judges finding that the challenged provisions, individually and in
    tandem, operate to limit the respondents security of the person.  We move now
    to whether that limit, and the limit on the liberty interest, accord with the
    principles of fundamental justice.

Issues 6, 7 and 8: Does the deprivation of the
    respondents liberty and security of the person accord with the principles of
    fundamental justice?
If not, are the provisions saved by s. 1 of the
Charter
? 
    If any of the three challenged provisions is unconstitutional, what is the
    appropriate remedy?

Overview of the principles of fundamental justice

[143]

As we have
    already explained, three principles of fundamental justice are implicated in
    this case: arbitrariness, overbreadth and gross disproportionality.  The
    application judge treated each of these principles as distinct concepts, as do
    we in the discussion that follows.  However, we acknowledge that there is
    significant overlap among them.  This has led to some confusion as to what
    level of deference the court should accord to legislative choice and what
    considerations govern at each step of the analysis.

[144]

For each
    principle of fundamental justice, the court must examine the relationship
    between the challenged provision and the legislative objective that the
    provision reflects.  It does so using a different filter for each concept.

[145]

When the court
    considers arbitrariness, it asks whether the challenged law bears no relation
    to, or is inconsistent with, its legislative objective.  Put another way,
    arbitrariness is established where a law deprives a person of his or her s. 7
    rights for no valid purpose:
Rodriguez
,

at pp. 594-595.

[146]

As the Supreme
    Court noted in
PHS
,

at para. 132, the jurisprudence on
    arbitrariness is not entirely settled.  The ambiguity arises from
Chaoulli
,
    in which the Court split 3-3 on the question of whether a more deferential
    standard of inconsistency, or a more exacting standard of necessity, should
    drive the arbitrariness inquiry.  In other words, must a law be inconsistent
    with, or bear no relation to, its purpose to be arbitrary, or is it sufficient
    to establish that the law is not necessary to achieve the purpose?

[147]

In this case,
    we adopt the more conservative test for arbitrariness from
Rodriguez
that requires proof of inconsistency, and not merely a lack of necessity. 
    Until a clear majority of the Supreme Court holds otherwise, we consider
    ourselves bound by the majority in
Rodriguez

on this point.

[148]

While the role
    of necessity in the arbitrariness inquiry remains uncertain, it is indisputably
    a key component of the overbreadth analysis. When the court considers
    overbreadth, it asks whether the challenged law deprives a person of his or her
    s. 7 rights more than is necessary to achieve the legislative objective:
Heywood
,

at p. 792.  In analysing whether a statutory provision offends the
    principle against overbreadth, the court must accord the legislature a measure
    of deference and should not interfere with legislation simply because it might
    have chosen a different means of accomplishing the objective:
Heywood
,

at p. 793.

[149]

When a court
    considers gross disproportionality, it asks whether the deprivation of a
    persons s. 7 rights is so extreme as to be
per se
disproportionate to
    any legitimate government interest:
PHS
,

at para. 133;
Malmo-Levine
,
    at para. 143.

[150]

The fluidity of
    these concepts, particularly as they were described by the Supreme Court in
Clay
,

has led some to question whether there is now only one principle of
    fundamental justice  gross disproportionality  or whether arbitrariness and
    overbreadth remain independent principles. Speaking for the court in
Clay
,

at paras. 37-38, Gonthier and Binnie JJ. said:

The analysis of overbreadth in relation to s. 7 was
    considered in
R. v. Heywood
, [1994] 3 S.C.R. 761, at p. 793,
    where Cory J. observed that:

The
    effect of overbreadth is that in some applications the law is arbitrary or
    disproportionate.

Overbreadth
    in that respect addresses the potential infringement of fundamental justice
    where the adverse effect of a legislative measure on the individuals subject to
    its strictures is
grossly
disproportionate to the state interest the
    legislation seeks to protect. Overbreadth in this aspect is, as Cory J. pointed
    out, related to arbitrariness.  [Emphasis in original.]

[151]

The commingling
    of these principles of fundamental justice is evident in four recent decisions
    of this court where gross disproportionality was used as the measure of
    overbreadth on a s. 7 challenge:
R. v. Dyck
,
2008 ONCA 309, 90
    O.R. (3d) 409;
Cochrane v. Ontario (Attorney General)
, 2008 ONCA 781,
    92 O.R. (3d) 321, leave to appeal to S.C.C. refused, [2009] S.C.C.A. No. 105;
R.
    v. Lindsay
, 2009 ONCA 532, 97 O.R. (3d) 567, leave to appeal to S.C.C.
    refused, [2009] S.C.C.A. No. 540; and
United States of America v. Nadarajah
,
    2010 ONCA 858, 266 C.C.C. (3d) 447, leave to appeal to S.C.C. granted, [2011]
    S.C.C.A. No. 64.

[152]

The appellants
    seize on this ambiguity and argue that the application judge applied the wrong
    test for overbreadth by asking whether the challenged provisions were
    necessary to achieve the legislative objectives.  Rather, they submit, the
    application judge should have asked whether the effects of the challenged
    provisions were grossly disproportionate to the legislative objectives.

[153]

While we
    acknowledge that the jurisprudence in this area has been less than clear in the
    past, we are satisfied that the application judge was correct to apply the
Heywood

test for overbreadth by asking whether the challenged laws were necessary to
    achieve the legislative objectives. We say this for two reasons.

[154]

First, as we
    explained above, gross disproportionality was recognized as a principle of
    fundamental justice a decade after
Heywood
, in the companion marijuana-related
    cases of
Malmo-Levine
,
Caine

and
Clay
.
But
    in
R. v. Demers
, 2004 SCC 46, [2004] 2 S.C.R. 489, which post-dated
    the marijuana trilogy by a year, the Supreme Court applied the
Heywood

test with no suggestion that the overbreadth inquiry had been subsumed by
    gross disproportionality.

[155]

Second, and more
    significantly, in the 2011 case of
PHS,
the Supreme Court considered
    the principles of arbitrariness, overbreadth and gross disproportionality
    separately.  The Supreme Court found that the exercise of the Ministers
    discretion was both arbitrary and grossly disproportionate, and so concluded,
    at para. 134, that it is was not necessary to consider whether it was also
    overbroad.  This is the clearest and most recent indication from the Supreme
    Court that these remain three distinct, if closely related, principles.

Do the challenged laws reflect an overarching legislative
    objective of eradicating or discouraging prostitution?


[156]

Before we assess
    each provision separately, we begin by addressing the appellants argument that
    the challenged provisions collectively reflect a broader legislative objective
    aimed at the problem of prostitution generally.

[157]

The appellants
    submit that the application judge erred in her analysis of the principles of
    fundamental justice, both by mischaracterizing the objectives of the challenged
    provisions, and by failing to consider those provisions as part of an overall
    legislative scheme aimed at eradicating, or at least discouraging,
    prostitution.
[6]
If this position is correct, the fact that prostitution itself is not illegal
    is of little constitutional significance. Indeed, it would be difficult for the
    respondents to establish that the provisions are arbitrary or overbroad and
    perhaps even disproportionate if, in some way, the laws advance the objective
    of reducing or abolishing prostitution.

[158]

The appellants frame
    their argument concerning the objectives in slightly different ways.  The
    Attorney General of Canada submits that the legislation is designed to denounce
    and deter the most harmful and public emanations of prostitution, to protect
    prostitutes, and to reduce the societal harms that accompany prostitution.

[159]

The Attorney
    General of Ontario adopts the objectives identified by the Attorney General of
    Canada in part, but relying upon
R. v. Mara

(1996), 27 O.R.
    (3d) 643 (C.A.), affirmed [1997] 2 S.C.R. 630, it goes further and argues that
    the objective of the prostitution provisions is to eradicate prostitution. 
    Counsel relies on the following passage from this courts decision in
Mara
,

at p. 651:

Although
    prostitution itself is not a crime in Canada, Parliament has chosen to attack
    prostitution indirectly by criminalizing prostitution-related activities. The
    purpose of doing so is to eliminate the harms that prostitution causes. In [the
Prostitution Reference
],
    Lamer J. explained that the bawdy-house provisions, procuring and pimping
    provisions, and disturbing the peace provisions are all aimed at the harms of
    prostitution.
Parliament wants to eradicate prostitution. The reason
    Parliament wants to eradicate prostitution is because it is harmful, a form of
    violence against women, related to men's historical dominance over women
.  [Emphasis added.]

[160]

The Attorney
    General of Ontario argues that the application judge erred by failing to refer
    to
Mara

and by failing to recognize that it was an
    authoritative statement from this court about the objectives of the challenged
    legislation.  Because of the emphasis counsel places on
Mara
, we will
    deal with it before turning more directly to the argument that there exists a
    broad legislative objective of eradicating or discouraging prostitution.

[161]

In our view,
    this courts decision in
Mara

is not determinative of the
    objectives of the prostitution legislation.  We say this for two reasons.

[162]

First,
Mara
did not deal with prostitution offences, but rather, with the indecent
    performance provision in s. 167 of the
Criminal Code
.  Section 167 is
    found in Part V, which is titled, Sexual Offences, Public Morals and
    Disorderly Conduct.  The prostitution provisions are found in Part VII, which
    is titled, Disorderly Houses, Gaming and Betting.  The court in
Mara
held
    that the kind of activity carried on in the tavern in that case, although
    falling within the terms of s. 167, was also a form of prostitution.  It
    therefore referred to the reasons of Lamer J. in the
Prostitution Reference
as an aid to interpreting s. 167.  It was not an authoritative comment on the
    objectives of the prostitution provisions.  While there was a constitutional
    challenge to s. 167 in this court, the challenge was on the basis of vagueness
    and the part of the reasons relied upon by the Attorney General of Ontario was
    not part of the constitutional analysis.

[163]

Second, when the
Mara
case reached the Supreme Court, the court found, at para. 37, that
    the harms associated with prostitution were only marginally relevant to a
    determination of what constituted indecency.  In the Supreme Courts view, the
    degradation and objectification of the female performers was sufficient to
    establish indecency without also considering that the performances were similar
    to prostitution.

[164]

There is nothing
    in Supreme Courts reasons in
Mara
to indicate that it adopted the
    views of this court about the purpose of the prostitution provisions.  This is
    not surprising, given that this court relied on the reasons of Lamer J. in the
Prostitution
    Reference
.
Justice Lamer was speaking only for himself in that
    case, and his opinion about the objectives of the prostitution provisions was
    rejected by the other members of the Supreme Court.

[165]

Having concluded
    that this courts decision in
Mara
is not controlling, we are left to
    assess whether the legislative history of the challenged provisions reflects a
    broad, overall objective of discouraging, and even eradicating, prostitution. 
    As we will explain, we are not persuaded that it does.  On the contrary, if
    anything can be gleaned from the history of the treatment of prostitution in
    Canada, it is that acts of prostitution associated with public nuisance and the
    exploitation of prostitutes by pimps are to be prohibited, but prostitution
    itself is tolerated.

[166]

The clearest
    expression of this approach is found in the dissenting reasons of Wilson J.
    (L'Heureux-Dubé J. concurring) in the
Prostitution Reference
, at
    pp. 1216-1217:

While
    it is an undeniable fact that many people find the idea of exchanging sex for
    money offensive and immoral, it is also a fact that many types of conduct which
    are subject to widespread disapproval and allegations of immorality have not
    been criminalized. Indeed, one can think of a number of reasons why selling sex
    has not been made a criminal offence.... Whatever the reasons may be, the
    persistent resistance to outright criminalization of the act of prostitution
    cannot be treated as inconsequential.



[T]he legality of prostitution must be
    recognized in any s. 7 analysis and must be respected regardless of one's
    personal views on the subject. As long as the act of selling sex is lawful it
    seems to me that this Court cannot impute to it the collective disapprobation
    reserved for criminal offences. We cannot treat as a crime that which the
    legislature has deliberately refrained from making a crime
.  [Emphasis added.]

[167]

One can see a
    similar, although less direct, approach in the majority reasons of Dickson C.J.
    (La Forest and Sopinka JJ. concurring), at pp. 1137-1138 of the
Prostitution
    Reference
:

In
    making a choice to enact s. 195.1(1)(c) [now s. 213(1)(c)] as it now
    reads,
Parliament had to try to balance its decision to criminalize
    the nuisance aspects of street soliciting and its desire to take into account
    the policy arguments regarding the effects of criminalization of any aspect of
    prostitution
.

[Emphasis added.]

[168]

As we explained
    above, Lamer J. writing for himself in the
Prostitution Reference

stated,
    at p. 1191, that, although prostitution itself is not a crime in Canada, the
    laws that Parliament has passed to target prostitution indirectly are a clear
    indication that our legislators are indeed aiming at eradicating the
    practice.  No other member of the Supreme Court endorsed this view.

[169]

To conclude on
    this point, we are satisfied that the challenged provisions are not aimed at
    eradicating prostitution, but only some of the consequences associated with it,
    such as disruption of neighbourhoods and the exploitation of vulnerable women
    by pimps.

[170]

Having determined
    that there is no single, overarching legislative objective that animates the
    three provisions at issue in this case, we now turn to consider each provision
    individually, to assess whether it accords with the principles of fundamental
    justice.

[171]

Our method is as
    follows.  We open our discussion of each provision with a short preview of our
    ultimate conclusion on its constitutionality.  The analysis that follows begins
    with an interpretation of the challenged provision, drawn from its legislative
    history and the existing jurisprudence.  Next, we identify the legislative
    objectives of the challenged provision.  We then evaluate whether the challenged
    provision runs afoul of any of the three principles of fundamental justice at
    issue: arbitrariness, overbreadth, and gross disproportionality.  If it does,
    we turn to its justification under s. 1, and finally, to any necessary
    remedies.

Do the bawdy-house provisions violate the principles of
    fundamental justice?

[172]

As we explain
    below, the bawdy-house provisions aim to combat neighbourhood disruption or
    disorder and to safeguard public health and safety.  We agree with the
    application judge that the prohibition is not arbitrary, because it targets
    many of the social harms associated with bawdy-houses.  However, like the
    application judge, we conclude that the bawdy-house prohibition is overbroad
    because it captures conduct that is unlikely to lead to the problems Parliament
    seeks to curtail.  In particular, the provisions prohibit a single prostitute
    operating discreetly by herself, in her own premises.  We also agree with the
    application judge that the impact of the bawdy-house prohibition is grossly
    disproportionate to the legislative objective, because the record is clear that
    the safest way to sell sex is for a prostitute to work indoors, in a location
    under her control.  It follows that the prohibition cannot be justified as a
    reasonable limit under s. 1.

[173]

While we further
    agree with the application judge that the current bawdy-house prohibition is
    unconstitutional and must be struck down, we suspend the declaration of
    invalidity for 12 months to provide Parliament an opportunity to draft a
Charter
-compliant
    provision, should it elect to do so.

(1)

Legislative history and judicial interpretation

[174]

The legislative
    history of the bawdy-house provisions at issue on this appeal (i.e. the
    definition of common bawdy-house in s. 197(1) and the prohibition in s. 210)
    reveals a gradual broadening of the reach of the legislation: see
R. v.
    Corbeil
,
[1991] 1 S.C.R. 830,
per
L'Heureux-Dubé J.
    (dissenting), at p. 846.

[175]

Bawdy-houses
    were initially dealt with as forms of vagrancy and nuisance.  With the 1953-1954
    revision of the
Criminal Code
, the bawdy-house provisions were
    relocated to Part V (now Part VII), which deals with Disorderly Houses, Gaming
    and Betting; they are no longer associated with vagrancy. The Supreme Court
    subsequently held in
R. v. Patterson
,
[1968] S.C.R. 157, that
    proof that premises were a bawdy-house required evidence that the premises were
    resorted to on a habitual and frequent basis.

[176]

The bawdy-house
    provisions in the
Criminal Code

are rooted in ancient English
    criminal law.  However, the Canadian approach differs from the English approach
    in at least one significant respect:  in England, a place is not a common
    bawdy-house when it is used by only one prostitute.  By contrast, in Canada, by
    reason of a 1907 amendment to what is now s. 197(1) of the
Criminal Code
,

a common bawdy-house is defined as a place that is kept or occupied or
    resorted to 
by one or more persons
 (emphasis added).

[177]

The result is
    that a person who wishes to engage in prostitution in her own home runs afoul
    of s. 210: see
R. v. Worthington
(1972), 10 C.C.C. (2d) 311
    (Ont. C.A.);
R. v. Cohen
, [1939] S.C.R. 212.  Obviously, a group
    of prostitutes working together for reasons of safety, or otherwise, in a
    single place, would also violate the bawdy-house provisions as keepers or
    inmates.

[178]

None of the
    parties, and in particular neither of the appellants, suggests that the
    bawdy-house provisions can be interpreted to permit prostitutes to use their
    own residences without attracting criminal liability.  Given the legislative
    history, such an interpretation would be impossible.

(2)

Objectives of the bawdy-house provisions

[179]

As we have
    indicated, the application judge identified the objectives of the bawdy-house
    provisions as combating neighbourhood disruption or disorder, and safeguarding
    public health and safety.  The appellants agree that these are some of the
    objectives, but argue that the legislation also works in conjunction with the
    procuring offences in s. 212 of the
Criminal Code

to control
    the institutionalization and commercialization of prostitution.

[180]

The only support
    for the broader objective of controlling the institutionalization and
    commercialization of prostitution is a single line from the
Report of the
    Special Committee on Pornography and Prostitution

(Ottawa: Minister
    of Supply and Services Canada, 1985), at p. 404 (Fraser Report).  Drawing on
    this phrase, the Attorney General of Canada submits that these offences are
    also aimed at discouraging and deterring prostitution generally, and thereby
    preventing the harm experienced by vulnerable people lured into, and involved
    in, prostitution that takes place hidden from the public view.

[181]

The phrase
    relied upon by the Attorney General of Canada, so far as we can tell, is simply
    a description in the Fraser Report and was not intended as an explanation of
    the objectives of the legislation.  There is nothing in the discussion of the
    bawdy-house provisions in the Fraser Report following this description that
    supports the broader objective urged by the appellants.

[182]

The Attorney
    General of Ontario, consistent with its generally broader view of the
    objectives of the challenged legislation, reads the bawdy-house provisions as
    promoting values of dignity and equality by criminalizing a practice that
    reflects and reinforces anti-egalitarian attitudes.

[183]

We agree that a
    modern, comprehensive legislative scheme dealing with prostitution could
    reflect the values of dignity and equality, but that is not the legislative
    scheme currently in place.  As the respondents point out, the Fraser Report
    made a number of recommendations aimed at modernizing and harmonizing the
    existing patchwork of prostitution laws.  Parliament responded soon after by
    introducing what is now s. 213(1)(c), the communicating provision.

[184]

When the bill
    containing the new communicating provision was introduced in the House of
    Commons in late 1985, the Justice Minister explained that it was only intended
    to address the problem of street prostitution, and not the whole social
    problem of prostitution.  Rather, he declared that the complicated, social
    problem of prostitution and pornography, these issues are going to be dealt
    with in the new year.
[7]


[185]

No comprehensive
    legislative scheme was introduced in the following year, nor has it been
    since.

[186]

As the application
    judge pointed out, the Supreme Court considered the objectives of the
    bawdy-house provisions in the pre-
Charter
case of
Rockert
,
    where Estey J. wrote, at p. 712:

The
    authorities leave little, if any, doubt that the mischief to which these offences
    were directed was not the betting, gaming and prostitution
per se
, but
    rather the harm to the interests of the community in which such activities were
    carried on in a notorious and habitual manner.

[187]

In other words,
    the provisions are aimed at the harm to the interests of the community. There
    is no evidence of a broader objective of controlling the institutionalization
    or commercialization of prostitution, with the ultimate aim of eradicating or
    discouraging prostitution.

[188]

In
Rockert
,
    Estey J. also referred with approval to the historical analysis of the
    provisions by Schroeder J.A., dissenting, in
R. v. Patterson
, [1967] 1
    O.R. 429 (C.A.), at p. 435:
[8]

Viewed
    in historical perspective the keeping of a brothel or a common bawdy-house was
    a common nuisance and, as such, was indictable as a misdemeanour at common law.
    It was treated as a public nuisance not only in respect of its endangering the
    public peace by drawing together dissolute and debauched persons but also in
    respect of its apparent tendency to corrupt the manners of both sexes, by such
    an open profession of lewdness:
Russell on Crime
, 12th ed., vol. 2, p. 1440. It
    consisted of maintaining a place to the disturbance of the neighbourhood or for
    purposes which were injurious to the public morals, health, convenience or
    safety.

[189]

This excerpt
    from
Patterson
identifies the objectives of the bawdy-house provisions
    as safeguarding the public peace
and
protecting against corruption of
    morals.  As the application judge properly recognized, a legislative purpose
    grounded in imposing certain standards of public and sexual morality is no
    longer a legitimate objective for purposes of
Charter
analysis:
R.
    v. Butler
, [1992] 1 S.C.R. 452, at p. 492.

[190]

Of course, Parliament
    could legislate, in the words of Sopinka J. in
Butler
, at p. 493, for
    the purposes of safeguarding the values which are integral to a free and
    democratic society.  But these are not the objectives of the current bawdy-house
    provisions, which are rooted in English common law and relate to nuisance and
    affront to public decency, not modern objectives of dignity and equality.

[191]

In these
    circumstances, we agree with the application judge that to recast the
    objectives of these provisions as argued by the Attorneys General would violate
    the principle against shifting purpose: see
R. v. Zundel
, [1992] 2
    S.C.R. 731, at p. 761.  Just as it is not open to the courts to invent new
    objectives for the purpose of s. 1, so it is the case for s. 7.  The
    appellants submission is not a mere shift in emphasis but a wholesale
    re-evaluation of ancient legislation to accord with modern values. It must,
    therefore, be rejected.

[192]

Accordingly, we
    agree with the application judge that the objectives of the bawdy-house
    provisions are combating neighbourhood disruption or disorder and safeguarding
    public health and safety.

[193]

We emphasize
    that these are not necessarily narrow objectives. The concept of public health
    and safety is a broad one, capable of evolving without violating the prohibition
    against shifting purpose:
Butler
, at p. 496. In our view, legislative
    concern for public health and safety is wide enough to encompass measures that
    target human trafficking and child exploitation, both of which may tragically
    arise through the operation of bawdy-houses.  The fact that there are specific
    provisions that also deal with these alarming social problems does not mean
    that Parliament cannot rely on more general measures such as the bawdy-house
    provisions to combat them: see
Malmo-Levine
,
at para. 137.

(3)

Are the bawdy-house provisions arbitrary?

[194]

The application
    judge was satisfied that there was some evidence that bawdy-houses can cause
    nuisance to the community and, thus, there is some real connection to the
    objective of combating neighbourhood disruption or disorder.  That is an
    accurate assessment of the evidence.

[195]

In addition, there
    was evidence before the application judge that bawdy-houses can be used to
    conceal under-aged or trafficked prostitutes. Frequently, police investigating
    residential bawdy-houses have found vulnerable women brought in from abroad or
    under-aged girls working as prostitutes. The appellants witnesses gave
    evidence that bawdy-houses are often an integral part of human trafficking
    syndicates where victims are trained and housed, and then transported elsewhere
    for the purpose of sexual exploitation.  Massage parlours or strip clubs, which
    can in some circumstances constitute bawdy-houses, can also harm the community
    through noise and harassment. This evidence brings the bawdy-house provisions
    within the scope of the objectives of combating neighbourhood disruption or disorder
    and risks to public health and safety.

[196]

We therefore
    agree with the application judge that the bawdy-house provisions do not
    infringe the arbitrariness principle of fundamental justice. We note that the
    fact that the bawdy-house provisions are rarely enforced is not a measure of
    arbitrariness.  In any event, the evidence shows that lack of enforcement may
    be related to the difficulty of investigating these crimes.

[197]

The application
    judge also concluded that, while the bawdy-house provisions are not arbitrary
    in and of themselves, they are arbitrary when considered in concert with the
    other challenged provisions.  We find it unnecessary to address this conclusion
    given our disposition of the overbreadth and gross disproportionality issues,
    to which we now turn.

(4)

Are the bawdy-house provisions overbroad?

[198]

As we explained above,
    the application judge concluded that the bawdy-house provisions are overbroad
    because they catch conduct that does not contribute to the social harm sought
    to be curtailed.

[199]

We have already
    rejected the appellants submissions that the application judge mischaracterized
    the objectives of the legislation and adopted the wrong test for overbreadth. 
    This leaves the difficult question of whether a blanket prohibition on all
    bawdy-houses is necessary to achieve Parliaments objectives.

[200]

The wide definition
    of common bawdy-house under s. 197(1) of the
Criminal Code

includes
    not only large establishments, which are likely to contribute to neighbourhood disruption
    and disorder, but also single prostitutes working alone from their own homes. 
    If the legislative objectives of the bawdy-house provisions included the
    eradication of prostitution and the deterrence of the sex industry, it may be
    that a blanket prohibition would not be overbroad.  However, we have concluded
    that these are not the objectives of the bawdy-house provisions. The blanket
    prohibition cannot be upheld on that basis.

[201]

We return to the
    test from
Heywood
and ask whether the blanket prohibition is necessary
    to achieve the state objectives we have identified.  In doing so, we accept
    that it is open to Parliament to opt for a blanket prohibition because a
    narrower prohibition would not be effective in meeting the legislative
    objectives: see
Rodriguez
,

at p. 607.

[202]

Moreover, as we
    explained above, we also take a somewhat more expansive view of the public health
    and safety objectives of the legislation than did the application judge. 
    Health and safety of the public is a broad objective, which can encompass laws
    that target problems such as human trafficking and child exploitation.  These
    objectives would have been within the contemplation of Parliament as the scope
    of the bawdy-house provisions was gradually extended in the late 19th

and
    early 20th centuries in response to the pressing social problem of so-called
    white slavery.  This history is detailed in the Fraser Report and discussed
    at para. 227 of the application judges reasons.

[203]

Nevertheless,
    even taking into account this broader understanding of public health and
    safety, it is our view that the application judge properly found that the
    provisions are overly broad.  The legislation is not reasonably tailored to
    protect the public and in that context arbitrarily and disproportionately
    limits the liberty and security interests of the respondents.

[204]

We find the
    legislation is most significantly overbroad in its extension to the
    prostitutes own home for her own use, a result of the 1907 amendment to the
    bawdy-house provisions that we described earlier.  This geographic overbreadth
    is similar to the problem found by the Supreme Court in
Heywood
. 
    There, the Supreme Court found the challenged loitering provisions overly broad
    in their geographical ambit because they applied to some public places where
    children were not likely to be present, even though the purpose of the
    provision was to protect children.  Here, as the application judge found, 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.  Further, there was no suggestion that the broader public
    safety problems we identified are associated with a single person, operating by
    herself, in her own premises.

(5)

Are the bawdy-house provisions grossly disproportionate?


[205]

In light of our
    holding that the bawdy-house provisions offend the overbreadth principle, it is
    not strictly necessary to deal with gross disproportionality as it applies to
    those provisions. However, because the case may proceed further, we will
    briefly address this issue.

[206]

Given the
    importance of the legislative objectives that animate the bawdy-house
    provisions, the impact on prostitutes would have to be extreme to warrant a
    finding of gross disproportionality.  In our view, on the facts found by the
    application judge, the impact on prostitutes is extreme.  While empirical evidence
    is difficult to gather, as we have said earlier, there is a body of evidence to
    support the application judges findings.

[207]

In particular, the
    evidence in this case suggests that there is a very high homicide rate among
    prostitutes and the overwhelming majority of victims are street prostitutes.  As
    well, while indoor prostitutes are subjected to violence, the rate of violence
    is much higher, and the nature of the violence is more extreme, against street
    prostitutes than those working indoors. The bawdy-house provisions prevent
    prostitutes from taking the basic safety precaution of moving indoors to
    locations under their control, which the application judge held is the safest
    way to sell sex.  In this way, as the application judge found, the provisions dramatically
    impact on prostitutes security of the person.
[9]

[208]

Before the
    application judge, two police officers testified that the bawdy-house
    provisions are important in human trafficking investigations.  We accept that human
    trafficking in the bawdy-house context is a terrible scourge on society. However,
    the advantage of investigating these cases through the indirect method of
    bawdy-house investigations has to be measured against the harm faced by
    prostitutes because they cannot work in a safer environment.

[209]

The common sense
    of that proposition was emphasized in the testimony of a police witness
    appearing before the Legislative Committee of the House of Commons in 1985 when
    the enactment of (now) s. 213(1)(c) was under consideration.  The officer
    stated:
[10]

If
    anything causes street solicitation, at least in the short run, it is the
    criminalization of bawdy houses.  Lacking a legal place to sell their legal
    services, prostitutes move out to the uncertain safety of the streets, where
    the problems complained of tend to gather. The decriminalization of bawdy
    houses is not synonymous with approving them in any moral sense: it merely is a
    more practical approach to the problems of pimping and street soliciting.
If
    women were free to operate discreetly out of their own homes, it would provide
    them with more safety and mutual support and allow a less public exit from the
    profession when the opportunity arises.
[Emphasis added.]

[210]

Because
    empirical evidence is so difficult to come by in this area, the appellants and
    the respondents resorted to anecdotal evidence to support their positions. The
    appellants most compelling argument is that, because of their many
    vulnerabilities, street prostitutes would not and could not work in
    bawdy-houses run by others.  Yet, the bawdy-house provisions also deny
    prostitutes the ability to operate from indoor locations where they live.

[211]

The respondents
    point to evidence that shows street prostitutes will move indoors where that
    option is legal, as it is in England, where the prostitute works alone from her
    own home with only a maid. The evidence from one of the respondents experts,
    Professor John Lowman, is informative:

But
    here again you see the key role of the law in facilitating the move off-street
    because a woman can work in a single premise in Birmingham without running
    afoul of the law. If we were to do a similar change of law in Canada, one would
    be able to predict that you would see a greater movement off-street of certain
    kind[s] of prostitutes, those who can afford the infrastructure, with a
    possibility that others would organize that infrastructure for those desperate
    and marginalized women on the Downtown Eastside who cannot pay for it.
[11]

[212]

To conclude, the
    impact on those put at risk by the legislation is extreme. We have no
    hesitation endorsing the application judges holding that the impact of the
    bawdy-house prohibition on prostitutes, and particularly street prostitutes, is
    grossly disproportionate to its legislative objective.

(6)

Are the bawdy-house provisions a reasonable limit under s. 1 of the
Charter
?

[213]

The Attorney
    General of Canada only briefly addressed the issue of whether a violation of s.
    7 could be saved by s. 1 of the
Charter
. The Attorney General of
    Ontario made no submissions on this issue. The Supreme Court has held that it
    would be a rare occasion when s. 1 could cure a breach of fundamental justice,
    and these rare occasions would tend to involve emergency situations:
Re B.C.
    Motor Vehicle Act
, at p. 518;
Malmo-Levine
,
at para. 271. In
    this case, s. 1 cannot cure the overbreadth and gross disproportionality defects
    in the bawdy-house provisions since such a law could not meet the minimal
    impairment part of the s. 1 test:
Demers
, at para. 46.

(7)

What is the appropriate remedy to address the s. 7 breach?


[214]

As we have said,
    to cure the constitutional deficiencies in the bawdy- house provisions that she
    identified, the application judge struck the word prostitution from the
    definition of common bawdy-house in s. 197(1) as it applies to s. 210.  The
    effect is to invalidate the prohibition on bawdy-houses for the purpose of
    prostitution, but not for acts of indecency.  It also has no impact on other
    sections of the
Criminal Code

that reference bawdy-houses, such
    as the procuring and concealing provisions in s. 212(1)(b),(c),(e) and (f).

[215]

The application
    judges discussion of remedy for the constitutional violations centred on
    whether there should be an immediate or a suspended declaration of invalidity
    of the challenged sections. To answer this question, she surveyed the other,
    unchallenged,
Criminal Code
provisions that offer protection to
    communities and to prostitutes. She concluded that there were sufficient
    safeguards in the other provisions to ensure that striking down the challenged
    provisions would not leave a dangerous vacuum. However, the application judge
    recognized that a consequence of her declaration would be that unlicensed
    brothels may be operated in a way that was not in the public interest.  She
    therefore stayed her decision for 30 days to permit counsel to make submissions
    on how that problem might be addressed.  As we have indicated, that stay was
    extended in subsequent orders.

[216]

We have
    considered whether some lesser remedy, short of a declaration of invalidity, is
    appropriate to cure the s. 7 breach caused by the bawdy-house provisions. In
    our view, no lesser remedy than that chosen by the application judge is
    appropriate. A
Charter
-
compliant solution requires a full
    reconsideration of the purpose and effect of the criminalization of
    bawdy-houses.  This is a task for Parliament.

[217]

We should not be
    taken as holding that any bawdy-house prohibition would be unconstitutional. It
    would be open to Parliament to draft a bawdy-house provision that is consistent
    with the modern values of human dignity and equality and is directed at specific
    pressing social problems, while also complying with the
Charter
. We
    note that striking down the current bawdy-house prohibition leaves intact other
Criminal Code

provisions that deal directly with the critical
    issue of human trafficking.
[12]

[218]

Because we
    believe that it is possible to draft
Charter
-compliant legislation
    directed at bawdy-houses, we suspend the declaration of invalidity as it
    relates to the definition of common bawdy-house for 12 months from the date
    of the release of these reasons.

Does the prohibition against
    living on the avails of prostitution violate the principles of fundamental
    justice?

[219]

Of the three
    provisions at issue in this appeal, the prohibition against living on the
    avails stands apart as the one that is specifically directed at the protection
    of prostitutes.

[220]

Like the
    bawdy-house provisions, the living on the avails provision traces its roots to
    early English criminal law, and has undergone a gradual evolution over the past
    century. As we elaborate below, we agree with the application judge that the
    objective of the modern living on the avails provision is to prevent the
    exploitation of prostitutes by pimps.  We also agree with her synthesis of the case
    law that has interpreted this provision to apply generally to people who
    provide goods or services to prostitutes, because they are prostitutes.  This
    interpretation includes, but is not restricted to, pimps.

[221]

We do not share
    the application judges view that the living on the avails provision is arbitrary,
    since it targets the legislative objective of preventing the exploitation of
    prostitutes by pimps.  However, we agree with the application judge that the
    provision is overbroad because it captures conduct that is in no way
    exploitative.  On this point, we reject the appellants submission that nothing
    short of the blanket prohibition will suffice to protect prostitutes from
    exploitation.  We further agree with the application judge that the provision
    is grossly disproportionate to the extent that it criminalizes non-exploitative
    commercial relationships between prostitutes and others, and particularly with those
    who may enhance prostitutes safety.

[222]

The application
    judge held that the s. 7 breach could only be cured by striking down the living
    on the avails provision.  We disagree.  Instead, we read words of limitation
    into the text of s. 212(1)(j) so that the prohibition is against living on the
    avails of prostitution
in circumstances of exploitation
.  This aligns
    the language of the provision with the vital legislative goal that animates it,
    and cures the constitutional defect.

(1)     Legislative history and judicial interpretation

[223]

As the
    application judge noted, the crime of living on the avails of prostitution was historically
    dealt with in two ways: first as an element of the vagrancy offence, and then
    in 1913 as one of the procuring offences.  Living on the avails was removed
    from the vagrancy provisions in the 1953-1954 revision to the
Criminal Code
and is now only dealt with as part of the procuring provisions in s. 212.

[224]

To repeat, the
    provision reads: Everyone who  lives wholly or in part on the avails of
    prostitution of another person is guilty of an indictable offence.  This
    language has posed an interpretive challenge because of the wide breadth of
    conduct that it can include.  Anyone who derives any benefit from a
    prostitutes earnings, who supplies goods or services to, or who simply lives
    with, a prostitute could potentially find themselves caught up in the
    prohibition.

(a) The traditional interpretation:
Shaw v. Director
    of Public Prosecutions

[225]

The House of Lords
    confronted this problem in the seminal case of
Shaw
, where the court
    was called on to consider the scope of a statutory prohibition on living wholly
    or in part on the earnings of prostitution.
[13]
Recognizing, at p. 263, the very wide meaning that could be ascribed to these
    words, the court adopted two interpretive devices to narrow the reach of the
    provision.

[226]

The first device
    was to limit the prohibition to those who provide goods or services to
    prostitutes, because they are prostitutes.  This assumes that the legislation is
    not intended to deprive prostitutes of the necessities, or even the luxuries,
    of life.  It is not meant to cover every person whose livelihood depends in
    some way upon payment by prostitutes  e.g
.
the grocer, the doctor and
    the shopkeeper  but only those whose net reward is the direct and intended
    result of prostitution  the tout, the bully or protector:
Shaw
, at
    pp. 263-264,
per
Viscount Simonds.

[227]

The second
    interpretive device was to equate living on the avails of prostitution with living
    parasitically on the avails of prostitution.  Lord Reid, writing separately in
Shaw
,
    explained at p. 270: Living on normally, I think, connotes living
    parasitically.  In other words, the prohibition applies to those whose occupation
    would not exist if the women were not prostitutes.

(b) The
Grilo
refinement

[228]

In
R. v. Grilo

(1991), 2 O.R. (3d) 514, this court accepted the traditional
Shaw

interpretation of the living on the avails offence.  But
Grilo

raised
    a different problem: does the offence apply when the accused lives with a
    prostitute, and is supported wholly or in part by her earnings?

[229]

This question is
    complicated by s. 212(3) of the
Criminal Code
, which establishes a
    rebuttable presumption that a person who lives with, or is habitually in the
    company of, a prostitute lives on the avails of prostitution:

Evidence that a person lives with or is habitually in the
    company of a prostitute or lives in a common bawdy-house is, in the absence of
    evidence to the contrary, proof that the person lives on the avails of
    prostitution, for the purposes of paragraph (1)(j).

[230]

This
    presumption is intended to facilitate the prosecution of pimps without the need
    for the affected prostitute to testify. This is important because prostitutes
    are notoriously, and understandably, reluctant to testify against the people
    who control them:
Downey
, at pp. 34-35.  The problem, Arbour J.A.
    explained in
Grilo
, lies in distinguishing between parasitic domestic
    relationships, which are clearly caught by the prohibition, and legitimate ones,
    which are not.

[231]

Justice Arbour solved
    the problem by holding that, in situations where the accused lives with the
    prostitute, the court should ask whether the relationship is an exploitative
    one.  She stated, at p. 522:

The
    parasitic aspect of the relationship contains, in my view, an element of
    exploitation which is essential to the concept of living on the avails of
    prostitution. The true parasite whom s. 212(1)(j) seeks to punish is someone
    the prostitute is not otherwise legally or morally obliged to support.

(c)

The
Barrow

restriction

[232]

In
R. v.
    Barrow
(2001), 54 O.R. (3d) 417, this court held that the
Grilo

concept of exploitation is only a required element of the offence of living
    on the avails when the accused lives with a prostitute, by virtue of the
    presumption in s. 212(3).  For cases where the accused does not live with
    or is not habitually in the company of a prostitute, the
Shaw
principle
    of parasitism is sufficient to convict.  The facts of
Barrow
illustrate
    this.

[233]

The accused
    ran an escort agency and received one third of the fee from the women who
    worked for her.  The evidence established that the accused knew the women would
    provide prostitution services.  However, the evidence also showed that the
    accused was supportive of the women, offered them advice about how to deal with
    difficult issues, and did not coerce them into performing sexual acts.  The
    accused argued that, as a result, she was not living parasitically off the
    earnings of the women because she was not exploiting them.

[234]

This court held
    that there was parasitism, but not exploitation, explaining at para. 29:

Her
    conduct falls squarely within the
Shaw
test  as applied to a person supplying services to a
    prostitute. The test as modified by Arbour J.A. in
Grilo
has no application to this case since
    the appellant was supplying services to the escorts. She was not merely living
    with them, nor were the escorts in a relationship in which they were legally or
    morally obliged to support the appellant.
The element of parasitism
    is found in the fact that she is in the business of rendering services to the
    escorts because they are prostitutes
.
    [Emphasis added.]

[235]

The court went
    on to make it clear that the living on the avails offence was made out despite
    the lack of exploitation, and even in the face of evidence that the accused was
    offering a valuable service to prostitutes. The court noted, at para. 31, the
    policy argument that if women could not form these kinds of commercial
    relationships they would be driven onto the streets where they would be much
    more vulnerable, isolated and subject to violence.  Nevertheless, the court in
Barrow
held that, absent a constitutional challenge, the section as interpreted by
    the courts had to be applied.

(d) Putting it all together: the current interpretation of
    the living on the avails offence

[236]

The result of
Shaw
,
Grilo
and
Barrow
is that people who supply services to
    prostitutes, because they are prostitutes, commit the living on the avails
    offence.  Thus, a bodyguard, driver, receptionist, bookkeeper, manager or
    anyone else providing services to a prostitute, for the purpose of her
    prostitution, comes within the offence.  The offence does not require proof of exploitation
    unless the accused lives with the prostitute, nor is it confined to the classic
    notion of a pimp as described by Cory J. in
Downey
, at p. 36,
    as the personification of abusive and exploitative malevolence.

(2)     Objective of the living on the avails provision

[237]

In
Downey
,
    Cory J. explained that the living on the avails offence is specifically aimed
    at those who have an economic stake in the earnings of a prostitute.  He indicated,
    at p. 32: It has been held correctly I believe that the target of [s.
    212(1)(j)] is the person who lives parasitically off a prostitute's earnings.
That
    person is commonly and aptly termed a pimp
 (emphasis added).

[238]

While
Downey
concerned the constitutionality of the presumption in s. 212(3),
[14]
we see no basis for departing from the objective identified by Cory J. in that
    case for the living on the avails offence.  We also accept that, situated as it
    is in s. 212 (which deals more generally with procuring), this offence
    aims to protect vulnerable persons from being coerced, pressured or emotionally
    manipulated into prostitution.  As we have already said, we do not accept the
    broader submission of the Attorney General of Ontario that this offence reflects
    a Parliamentary objective to eradicate prostitution.

[239]

In short, we
    agree with the application judge that the objective of the living on the avails
    provision is to
prevent pimps from exploiting prostitutes and
    from profiting from the prostitution of others.

(3)     Is the living on the avails provision arbitrary?


[240]

The application
    judge found that the prohibition against living on the avails of prostitution
    infringes the principle against arbitrariness.  As we just explained, she
    identified the objective of the legislation as preventing the exploitation of
    prostitutes and profiting by pimps from prostitution.  The legislation as
    drafted and interpreted, however, prevents a prostitute from hiring a security
    guard, a personal driver, or an assistant who could work to reduce the risk of
    violence.  The application judge therefore reasoned that the effect of the
    legislation could not be said to be connected to, or consistent with,
    Parliaments objective.  As she said, at para. 379, it may actually serve
    to increase the vulnerability and exploitation of the very group it intends to
    protect.

[241]

We do not agree
    with this analysis.  To return to the test enunciated in
Rodriguez
, a
    provision is arbitrary only where it bears no relation to, or is inconsistent
    with, the objective that lies behind the legislation.  In prohibiting persons
    from living on the earnings of prostitutes, the legislation prevents the
    exploitation of prostitutes and, in particular, prevents pimps from profiting
    from prostitution.  The legislation may be overbroad, a matter to which we will
    turn shortly, because it captures activity that is not exploitative, but that
    is not the same as arbitrariness.

[242]

The fact that
    the effects may go beyond preventing exploitation and capture conduct by third
    persons that may benefit prostitutes and make their work safer does not render
    the legislation inconsistent with Parliaments objectives.  The victimization
    of prostitutes by pimps is related to the economics of prostitution.  Addressing
    that victimization by attempting to cut off the economic incentive is
    rationally connected to a reasonable apprehension of harm, to use the test from
Malmo-Levine
.  It cannot be said that the provision does little or
    nothing to enhance the state interest in attempting to curb exploitation of
    prostitutes by pimps.  This is true even if other provisions, such as the
    exercising control provision in s. 212(1)(h), are aimed directly at pimping.
[15]

(4)     Is the living on the avails provision overbroad?

[243]

The application
    judge also found that the living on the avails provision is overbroad. She
    reasoned that the means chosen are broader than the objectives of preventing
    the exploitation of prostitutes and profiting from prostitution by pimps.  She
    particularly focused on the fact that, as interpreted by this court in
Barrow
,
    the offence does not require proof of exploitation where the accused provides
    services to the prostitute but does not live with her.

[244]

The appellants
    submit that the application judge erred in concluding that the living on the
    avails provision is overbroad.  They argue that a blanket prohibition is
    required because even the most benign conduct in relation to the prostitute can
    evolve into the kind of exploitative and abusive conduct associated with the
    worst aspects of pimping.  This phenomenon arises from the nature of prostitution
    itself.  Prostitutes live on the fringes of society. They are isolated and
    therefore uniquely vulnerable to potential exploitation by others.

[245]

The Supreme
    Court has identified two circumstances in which a blanket prohibition can
    escape a charge of unconstitutional overbreadth.  The first is if a narrower
    prohibition will be ineffective because the class of affected persons cannot be
    identified in advance:
Clay
, at para. 40.  The second is if there is a
    significant risk to public safety in the event of misuse or misconduct:
Clay
,
    at para. 40;
Cochrane
, at para. 34.  In our view, neither circumstance
    is present here.

[246]

No case has been
    made out for a blanket prohibition on the second basis, danger to the public at
    large. The objectives of the living on the avails provision have not been cast
    in terms of public protection; rather the legislation is more narrowly focused
    on protecting prostitutes from exploitation. As we have said, this is a group
    that is uniquely vulnerable because of the nature of prostitution itself and
    the legislative framework that surrounds most prostitution-related activities.
    The risk of harm from pimping accrues principally to the prostitute, not the
    general public.

[247]

The case for a blanket
    prohibition on the first basis  the difficulty of identifying the vulnerable
    group in advance  is superficially more compelling. We are, however, satisfied
    that the application judge was right to find that the living on the avails
    provision violates the overbreadth principle.

[248]

The overbreadth analysis
    requires an examination of the means used to accomplish the valid state
    objective. If those means are broader than necessary, s. 7 is violated. Even a
    law that has been found not to violate the principle of fundamental justice
    against arbitrariness, as with the living on the avails provision, can be held
    to be overbroad because in some applications the law goes further than
    necessary and is thus too sweeping in relation to its objective.

[249]

This is the case
    with living on the avails. The problem lies in the broad language of the
    provision itself: living wholly or in part on the avails of prostitution of
    another person. As we have said, the courts have always recognized the
    potential scope of the legislation, and accordingly narrowed its reach to
    persons who supply goods and services to prostitutes in furtherance of the
    prostitutes occupation.  In this way, the shopkeeper who sells a prostitute
    groceries or the doctor who provides her health care are exempt from the
    prohibition.  But even this narrowing of the ambit of the legislation reaches
    everyone else who is involved in some way with the business of the prostitute,
    and who not only does not exploit the prostitute, but may actually be
    protecting her.

[250]

As it stands,
    the blanket prohibition on living on the avails catches not just the driver or
    the bodyguard (who may be a pimp by another name), but also the accountant who
    keeps the prostitutes records and the receptionist who books appointments and
    checks credit card numbers.

[251]

As the
    application judge pointed out, the facts in
Barrow

are the obvious
    example of overbreadth. While the accused took a percentage of the prostitutes
    earnings, she also performed precisely the sorts of simple, common sense tasks
     screening customers, booking hotel rooms, and acting as the prostitutes
    safe call  that the application judge found could dramatically improve
    prostitutes safety.
Barrow
affords a striking example of a valid
    objective that, as implemented through the legislation, is in some applications
    overbroad.

[252]

The argument
    that the blanket prohibition is necessary because members of the vulnerable
    group cannot be identified in advance, founders on the experience with people
    who live with prostitutes. One would have thought that this is a group that is
    very likely to take advantage of vulnerable prostitutes. However, in
Grilo
,
this court was satisfied that it was possible to distinguish between those who
    were the legitimate target of the legislation and those who should not be
    caught by it, using the concept of exploitation as a filter.

(5)     Is the living on the avails provision grossly
    disproportionate?

[253]

The application
    judge found that s. 212(1)(j) is grossly disproportionate because it prevents
    prostitutes from hiring bodyguards, drivers, or others who could keep them
    safe, and may actually increase the likelihood that prostitutes will be
    exploited by forcing them to seek protection from those who are willing to risk
    a charge under this provision.

[254]

We agree with
    this analysis.  If the living on the avails provision were narrowly tailored to
    target pimps or others who exploit prostitutes, it could pass constitutional
    muster.  But the section does not simply target pimps, and its effects reach
    the safety and security of prostitutes. The state response is out of all proportion
    to the state objectives. While the provision is ostensibly aimed at protecting
    prostitutes from harm, it prevents them from taking measures that could reduce
    harm and at worst drives them into the hands of the very predators that the law
    intends to guard against.

[255]

The living on
    the avails provision is the sole section under consideration in this appeal
    that has the protection of prostitutes as its objective. That part of its effect
    may be to increase the risk of harm to prostitutes falls comfortably within the
    concept of
per se
disproportionality.

(6)     Is the living on the avails provision a reasonable
    limit under s. 1 of the
Charter
?

[256]

As with the
    bawdy-house provisions, we conclude that s. 212(1)(j) cannot be justified as a
    reasonable limit under s. 1 of the
Charter
because it is overbroad,
    and its effects are grossly disproportionate to its objectives.

(7)     What is the appropriate remedy to address the s. 7
    breach?

[257]

The living on
    the avails provision presents a more complex problem of remedy than do the
    bawdy-house provisions. Unlike those provisions, the purpose of s. 212(1)(j) is
    to offer some protection to prostitutes. While it criminalizes conduct, it does
    so to protect persons engaged in prostitution. If the provision is struck down,
    this protection will be lost. While other provisions in s. 212 cover much
    of the pernicious conduct involving the exploitation of prostitutes, those
    provisions do not cover all conduct that puts the prostitutes well-being at
    risk and that fairly come within the avails provisions objective: see, for
    example:
R. v. Foster
(1984), 54 A.R. 372 (C.A.);
R. v. Boston
,
    [1988] B.C.J. No. 1185 (C.A.);
R. v. Vance
, 2004 SKCA 77, [2004]
    S.J. No. 341 (C.A.).

[258]

Further,
    striking down the living on the avails provision would neutralize the
    presumption in s. 212(3), since that presumption only applies to the
    living on the avails offence. It must be remembered that in
Downey
,

at p. 37,

the Supreme Court found that the presumption played an
    important role in the successful prosecution of pimps:

From
    a review of Committee Reports and the current literature pertaining to the
    problem it is obvious that the section is attempting to deal with a cruel and
    pervasive social evil. The pimp personifies abusive and exploitative
    malevolence.

[259]

As worded,
    however, the living on the avails offence targets anyone with an economic stake
    in the earnings of the prostitute, even persons who offer no threat to the
    prostitutes economic or physical well-being. We have already discussed the
    interpretive exercise in which courts have engaged, outside the
Charter
,
    in order to narrow the scope of the provision, and we have explained why, in
    our view, the interpretive exercise is exhausted.

[260]

The question
    then becomes what is the appropriate remedy and, in particular, whether a
    remedy short of striking down the provision is appropriate.

[261]

As is well
    known, s. 52 of the
Constitution Act, 1982
, instructs the court to
    declare a provision of no force to the extent of the inconsistency. The
    Supreme Court has held that s. 52 authorizes a court to adopt remedies of
    reading in and severance rather than striking down challenged legislation. The
    courts have used reading in and severance where, as here, striking down would
    deprive vulnerable groups of the protection offered by the legislation.

[262]

As explained in
Schachter
,
    the purpose of reading in and severance is to avoid undue intrusion into the
    legislative sphere, while also respecting the purposes of the
Charter
.


[263]

In
Schachter
,
    Lamer C.J. set out the test for whether severance or reading in, as opposed to
    striking down, is the appropriate remedy. The first consideration is remedial
    precision. Reading in will not be appropriate if the question of how the
    statute ought to be extended in order to comply with the Constitution cannot be
    answered with a sufficient degree of precision on the basis of constitutional
    analysis:
Schachter
, at p. 705.  This point was made in the
    context of extending benefits of legislation to groups that had been improperly
    excluded from the legislative scheme, in violation of the equality provisions
    of s. 15.  A similar consideration would arise in this case if the court were
    unable to read in words of limitation that would be sufficiently precise to avoid
    infringing the void for vagueness principle of fundamental justice.

[264]

The second
    consideration is interference with the legislative objective. The Supreme Court
    explained in
Schachter
, at p. 707: The degree to which a particular
    remedy intrudes into the legislative sphere can only be determined by giving
    careful attention to the objective embodied in the legislation in question.

[265]

The third and
    fourth considerations are of more importance in a severance case than a
    reading-in case and require the court to consider the impact of severance on the
    remainder of the legislation:
Schachter
, at pp. 710-713.

[266]

Overall, where a
    court is considering reading in as a remedy, it must bear in mind the limits of
    its role as explained in the following passage by Professor Carol Rogerson in
    "The Judicial Search for Appropriate Remedies Under the Charter: The
    Examples of Overbreadth and Vagueness", in R. J. Sharpe, ed.,
Charter
    Litigation
(Toronto: Butterworths, 1987), at p. 288:

Courts
    should certainly go as far as required to protect rights, but no further.
    Interference with legitimate legislative purposes should be minimized and laws
    serving such purposes should be allowed to remain operative to the extent that
    rights are not violated. Legislation which serves desirable social purposes may
    give rise to entitlements which themselves deserve some protection.

This passage was referred to with approval in both
Schachter
and
Vriend v. Canada
, [1998] 1 S.C.R. 493.

[267]

We conclude that
    reading in is an appropriate remedy to cure the constitutional infirmity of s.
    212(1)(j). Specifically, we would recast the provision by reading in the
    underlined words:

Everyone
    who lives wholly or in part on the avails of prostitution of another person
in
    circumstances of exploitation
is guilty of an indictable offence

[268]

In our view,
    reading in the phrase in circumstances of exploitation remedies the
    constitutional problem. That phrase provides a sufficient degree of precision.
    It introduces the requirement that the accused has unfairly taken advantage of
    a prostitute in his dealings with her.  Thus, where the accused is providing
    services to the prostitute for the purpose of her prostitution, absent proof of
    exploitation, no offence would be committed, unlike under the
Shaw
test.

[269]

We are satisfied
    that the concept of exploitation is not unconstitutionally vague. In
Canadian
    Foundation for Children
,
at para. 15, McLachlin C.J. described the
    void for vagueness principle in these terms:

A
    law is unconstitutionally vague if it does not provide an adequate basis for
    legal debate and analysis; does not sufficiently delineate any area of risk;
    or is not intelligible. The law must offer a grasp to the judiciary:
R.
    v. Nova Scotia Pharmaceutical Society
,
    [1992] 2 S.C.R. 606, at pp. 639-40. Certainty is not required.

[270]

Exploitation is
    already an element of the offence where the accused and the prostitute are
    living together, as a result of
Grilo
.  It is a concept that courts
    have used in other contexts and is often found where the victim is in a state
    of dependency. There will be hallmarks of exploitation that will assist in
    delineating the area of risk, as where the prostitute is dependent on the
    accused for drugs or because of youth, where the accused has no legal or moral
    claim to the prostitutes earnings, or where the accused takes a portion of the
    prostitutes earnings that is out of all proportion to the services provided.
    On the other hand, where there is no exploitation in this sense, as in a case
    like
Barrow,
the person would not be committing the offence of living on
    the avails of prostitution.

[271]

We are also satisfied
    that reading in furthers Parliaments objectives. In
Downey
, Cory J.
    stated the objective of s. 212(1)(j) in broad terms to apply to those who have
    an economic stake in the prostitutes earnings. However, he indicated that the
    real target of the provision was the pimp. Preserving             s.
    212(1)(j) by reading in the proposed limitation also preserves the presumption
    in s. 212(3), which the Supreme Court in
Downey

held was an
    important tool to facilitate the prosecution of pimps.

[272]

Seen in this
    light, reading in is not a substantial intrusion into the legislative sphere
    and in no way changes the nature of the legislative scheme. On the contrary, reading
    in the element of exploitation preserves the essential core of the offence and
    more closely identifies the real target of the legislation.

[273]

We are persuaded
    that we can employ this remedy despite the fact that the Attorney General of
    Canada did not seek it. The reason is that, by reading in words of limitation,
    we propose to clarify the intent of the provision, rather than to amend

it. 
    That distinguishes this case from a case like
Baron v. Canada
, [1993]
    1 S.C.R. 416, where the Supreme Court declined to read words into a statute to
    remedy a constitutional defect in the absence of submissions from counsel.

[274]

At issue in
Baron
was the constitutionality of a provision in the
Income Tax Act
, S.C.
    1970-72, c. 63, that required a judge to issue a warrant if certain prescribed
    conditions were met.  The Supreme Court held that this was an unjustified
    infringement of the right against unreasonable search and seizure in s. 8
    of the
Charter
, because the provision foreclosed the possibility of
    judicial discretion in the issuance of the warrant.  The problem could
    presumably have been remedied by replacing the mandatory instruction shall
    with the permissive direction may.  But the Supreme Court declined to do so,
    because the legislative history of the provision made it clear that Parliament
    had intended to remove judicial discretion from this part of the Act.

[275]

In holding that
    the provision should be struck down, rather than read down, Sopinka J.
    explained:

Reading down
by amending the clear intent of a statutory
    provision may be appropriate in some cases
.
The decision to do so
    requires a determination that this remedy will constitute the lesser intrusion
    into the role of the legislature consistent with upholding the values and
    objectives of the
Charter
.
This is a determination that I am not
    prepared to make in the absence of submissions by the Attorney General of
    Canada  that reading down will constitute a lesser intrusion
.
[Emphasis added; citations omitted.]

[276]

In contrast, in
    this case, reading in is consistent with the intent of the statute.  The living
    on the avails provision is not recent post-
Charter
legislation, as in
Baron
.
    The objective of the provision is to protect prostitutes from exploitation.  Far
    from being inconsistent with Parliaments intent, our proposed remedy aligns
    the wording of the provision with its objective, consistent with
Charter

values.

[277]

We are also
    persuaded that reading in is a far lesser intrusion than striking down the
    living on the avails provision in light of the presumption in s. 212(3).  As we
    explained above, s. 213(3) assists in prosecuting pimps by creating a
    rebuttable presumption that someone who lives with, or is habitually in the
    company of, a prostitute is guilty of living on the avails of prostitution contrary
    to s. 212(1)(j).  If the living on the avails provision is struck down,
    the presumption that is intended to facilitate the prosecution of exploitative
    pimps would also fall.  The reason is that the presumption applies
only
to
    s. 212(1)(j), and not any of the other provisions in s. 212(1) that touch on
    other exploitative conduct.

[278]

For these
    reasons, we conclude that the constitutional defect found in s. 212(1)(j) is
    remedied by reading in the words, in circumstances of exploitation.

Does the prohibition against communicating for the purpose
    of prostitution violate the principles of fundamental justice?

[279]

The application
    judge held that the purpose of the communicating provision is to target the
    social nuisance associated with street prostitution, including noise, street
    congestion, and interference with innocent bystanders.  She held that the
    provision is neither arbitrary, because it is directed toward this goal, nor
    overbroad, because a narrower prohibition would not be effective.  However, the
    application judge concluded that the impact of the communicating provision is
    grossly disproportionate to the legislative objective because it deprives
    street prostitutes of the opportunity to screen customers, which she found to
    be an essential tool to enhance their safety.

[280]

We disagree with
    this analysis.  As we will explain, the application judge erred by simultaneously
    under-emphasizing the importance of the legislative objective and
    over-emphasizing the impact of the communicating provision on the respondents
    security of the person.  We conclude that the communicating provision does not
    violate the principles of fundamental justice, and must be upheld.

(1)     Legislative history and judicial interpretation

[281]

The offence of
    communicating for the purpose of prostitution in s. 213(1)(c) was enacted in
    1985 in the wake of the apparent failure of the predecessor provision to
    address problems associated with street prostitution.  The former offence of
    soliciting for the purpose of prostitution had been interpreted by the Supreme
    Court in
Hutt v. The Queen
, [1978] 2 S.C.R. 476, as requiring proof of
    pressing or persistent behaviour.  The current provision avoids the use of the
    term solicit and is broadly worded to capture all manner of communication or
    even attempted communication in a public place for the purpose of engaging in
    prostitution or obtaining the sexual services of a prostitute.  The section
    also includes conduct short of communication by prohibiting stopping, or
    attempting to stop, any person for the prohibited purpose: see
R. v. Head
(1987), 36 C.C.C. (3d) 562 (B.C.C.A.).  Section 213(2) also broadly defines
    public place to include any place to which the public have access as of
    right or by invitation, express or implied, and any motor vehicle located in a
    public place or in any place open to public view.

[282]

At para. 277 of
    her reasons, the application judge reviewed the case law that has interpreted
    s. 213(1)(c), most notably the
Prostitution Reference
.
In that
    case, Lamer J. described the provision as broad and far reaching, which
    clearly indicates to individuals that they must not by any means communicate
    for the purpose of prostitution or engaging the services of a prostitute. 
    There is no requirement that the parties actually reach an agreement or that
    they even expressly specify the type or cost of the sexual services to be
    performed, provided that the court can infer the prohibited purpose from the
    context.

[283]

In light of this
    broad interpretation, communication that might, for example, allow the
    prostitute to evaluate the risk of getting into the customers vehicle would be
    caught by the provision, provided the court could infer that the purpose of the
    communication was to engage in prostitution.

(2)      Objectives of
    the communicating provision

[284]

The application
    judge adopted the objectives of the communicating offence in s. 213(1)(c)
    identified by Dickson C.J. in the
Prostitution Reference
at pp. 1134-35:

Like
    Wilson J., I would characterize the legislative objective of s. 195.1(1)(c) in
    the following manner: the provision is meant to address solicitation in public
    places and, to that end, seeks to eradicate the various forms of social
    nuisance arising from the public display of the sale of sex.

Public solicitation for the purposes of
    prostitution is closely associated with street congestion and noise, oral
    harassment of non-participants and general detrimental effects on passers-by or
    bystanders, especially children. In my opinion, the eradication of the
    nuisance-related problems caused by street solicitation is a pressing and
    substantial concern. I find, therefore, that sending the message that street
    solicitation for the purposes of prostitution is not to be tolerated
    constitutes a valid legislative aim
. 
    [Emphasis added.]

[285]

The appellants
    submit that while the application judge accepted these as the objectives of the
    legislation, she adopted narrower objectives when she came to the overbreadth
    and disproportionality analyses.  In the overbreadth analysis, the application
    judge focused, at para. 409, only on street congestion and noise, oral
    harassment of non-participants and general detrimental effects on passers-by or
    bystanders, especially children. In the disproportionality analysis, she
    referred, at para. 432, to noise, street congestion, and the possibility that
    the practice of prostitution will interfere with those nearby.  The Attorney
    General of Canada argues that the application judge failed to take account of
    the seriousness of the nuisance presented by street prostitution, which is attended
    by drug use and other crimes.  We will return to this issue when we consider
    gross disproportionality.

[286]

The Attorney
    General of Ontario again argues for an even broader objective, submitting that
    s. 213(1)(c) targets the normalizing effect exposure to prostitution can have
    on children and promotes the proper functioning of society and core societal
    values, such as human dignity and equality.  Given that Dickson C.J. and Wilson
    J., who in combination were speaking for a majority of the Supreme Court on
    this issue in the
Prostitution Reference
, expressly rejected this
    broader objective, we cannot agree with the position of the Attorney General of
    Ontario.

(3)               Is the communicating provision
    arbitrary?

[287]

The application
    judge found that the prohibition on communicating for the purpose of
    prostitution in s. 213(1)(c) does not infringe the arbitrariness principle.  In
    her view, the evidence showed that the provision was largely ineffective at
    eradicating the various forms of social nuisance arising from the public
    display of the sale of sex, the objective identified in the
Prostitution
    Reference
for the communicating offence.  The application judge relied upon
    evidence showing that enforcement of the provision did not reduce the number of
    street prostitutes: various reports demonstrated that the numbers of street
    prostitutes were not reduced; they were simply displaced to new areas. The
    application judge correctly recognized, however, that just because a law is
    largely ineffective does not necessarily mean that it is arbitrary or
    irrational.  We agree with her conclusion that the communicating provision is
    not arbitrary.

[288]

It is important
    to look back at the situation facing Parliament when s. 213(1)(c) was
    enacted.  Because of the restrictive interpretation given to the predecessor
    provision in
Hutt
, it had become impossible to mitigate the harm to
    neighbourhoods caused by street prostitution.  The impact on neighbourhoods was
    reviewed at length in the Fraser Report and was described by Dickson C.J. in
    the
Prostitution Reference
,

at p. 1136:

Much
    street soliciting occurs in specified areas where the congregation of
    prostitutes and their customers amounts to a nuisance. In effect, the
    legislation discourages prostitutes and customers from concentrating their
    activities in any particular location. While it is the cumulative impact of
    individual transactions concentrated in a public area that effectively produces
    the social nuisance at which the legislation in part aims, Parliament can only
    act by focusing on individual transactions. The notion of nuisance in
    connection with street soliciting extends beyond interference with the
    individual citizen to interference with the public at large, that is with the
    environment represented by streets, public places and neighbouring premises.

[289]

We do not accept
    the application judges view of the evidence that the provision has not been
    effective in reducing social nuisance and harms to neighbourhoods.  There was
    evidence in this case, not rejected by the application judge, that enforcement
    of the communicating prohibition has been effective in protecting residential
    neighbourhoods from the harms associated with street prostitution.  Residents
    of vulnerable neighbourhoods provided dramatic evidence of the harms associated
    with street prostitution including noise, impeding traffic, children witnessing
    acts of prostitution, harassment of residents, problems associated with drug
    use by prostitutes, unsanitary acts, violence, unwelcome solicitation of women
    and children by customers, and unwelcome solicitation of male residents by
    prostitutes.  Police sweeps through the affected neighbourhoods using the
    communicating provision help reduce these harms.  In our view, while far from a
    permanent solution, the provision is rationally related to a reasonable
    apprehension of harm.  Accordingly, it cannot be said to be arbitrary.

(4)               Is the communicating provision
    overbroad?


[290]

The application
    judge found that the communicating provision in s. 213(1)(c) is not overly
    broad.  She explained that in the
Prostitution Reference
, Dickson C.J.
    found that the violation of freedom of expression was a reasonable limit under
    s. 1 of the
Charter
.  In making this determination, he necessarily had
    to consider whether the provision was too broad in accordance with the s. 1
    proportionality test.  As the application judge noted, the analysis of
    overbreadth is similar to the analysis undertaken in considering the part of
    the proportionality test that asks whether the legislation impairs the
    protected right as little as possible.  She recognized the different context,
    in that overbreadth is a principle of fundamental justice, whereas the issue
    considered by Dickson C.J. was the application of the proportionality test to a
    violation of freedom of expression.  The application judge was concerned that a
    more narrowly tailored law might actually increase the danger to prostitutes by
    moving their activities to isolated areas.

[291]

We agree with
    the application judge that the communicating provision is not overbroad.

(5)

Is the communicating provision grossly disproportionate?

[292]

The application
    judge concluded that the communicating provision offends the principle against
    gross disproportionality.  Applying the framework from
Malmo-Levine
,
    she considered, first, whether the provision pursues a legitimate state
    interest, and second, whether the effects of the law are so extreme that they
    are
per se

disproportionate to that interest.

[293]

On the first
    point, the application judge accepted, at para. 418, that the provision
    reflects the legitimate state interest of curbing the social nuisance
    associated with public solicitation for the purpose of prostitution.  In
    particular, the law seeks to target problems including traffic congestion,
    noise, harassment of persons in the area, and the harmful effect of the open
    display of prostitution on bystanders, including children.

[294]

On the second
    point, the application judge reiterated her earlier findings that prostitutes 
    particularly street prostitutes  face a high risk of physical violence, that
    taking the time to screen customers for intoxication and propensity for
    violence can increase safety, and that the communicating provision can increase
    the vulnerability of street prostitutes by forcing them to forego screening customers
    at an early and crucial stage of the transaction.

[295]

Weighing these
    factors together, the application judge held, at para. 433:

The
    nuisance targeted by the communicating provision includes noise, street
    congestion, and the possibility that the practice of prostitution will
    interfere with those nearby. These objectives are to be balanced against the
    fact that the provision forces prostitutes to forego screening clients which I
    found to be an essential tool to enhance their safety.

[296]

The application
    judge proceeded to analogize the impact of the communicating provision on
    street prostitutes to the impact of the denial of the ministerial exemption on
    drug addicts in
PHS
.  She held, at para. 434:

In [
PHS
], Rowles J.A. for the majority, held
    that:

The
    effect of the application of the [
CDSA
] provisions on Insite would deny persons with a very
    serious and chronic illness access to necessary health care and would come without
    any ameliorating benefit to those persons or to society at large.  Indeed,
    application of those provisions to Insite would have the effect of putting the
    larger society at risk on matters of public health with its attendant human and
    economic cost.

Similarly,
    in this case, one effect of the communicating provision (as well as the
    bawdy-house provisions) is to endanger prostitutes while providing little
    benefit to communities. In fact, by putting prostitutes at greater risk of
    violence, these sections have the effect of putting the larger society at risk
    on matters of public health and safety. The harm suffered by prostitutes
    carries with it a great cost to families, law enforcement, and communities and
    impacts upon the well-being of the larger society. In my view, the effects of
    the communicating provision are grossly disproportionate to the goal of
    combating social nuisance.

[297]

In our view, the
    application judge made several errors in coming to this conclusion.

[298]

As we explained
    above, gross disproportionality describes state actions or legislative
    responses to a problem that are so extreme as to be disproportionate to any
    legitimate government interest:
PHS
, at para. 133.  As the Supreme
    Court emphasized in
Malmo-Levine,
at para. 143, the applicable standard
    is one of 
gross
disproportionality, the proof of which rests on the
    claimant (emphasis in original).

[299]

Clearly, the
    gross disproportionality analysis entails a weighing exercise.  On one side of
    the scale is the objective of the challenged law.  On the other side of the
    scale is the impact of that law on the claimants s. 7 rights.  Gross
    disproportionality is not established when the scale is balanced, or even when
    it tips in favour of the claimant, but rather where there is a marked and
    serious imbalance in the two sides.

[300]

The onerous
    standard that must be met to make out gross disproportionality is illustrated
    in the related context of cruel and unusual punishment under s. 12 of the
Charter
.
    In that context, the Supreme Court has also imposed a standard of gross
    disproportionality and used terms such as abhorrent or intolerable: see
R.
    v. Morrisey
, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 26. While we do not
    say that the same test can be applied in the s. 7 context, those expressions
    assist in understanding the need for the claimants to show that the balance
    tips significantly in their favour.

[301]

Extending the
    metaphor, at the first step of the s. 7 analysis  i.e. determining whether the
    claimant has established an infringement of her right to life, liberty and
    security of the person  the courts task is simply to decide if there is
    anything to put on the scale in the first place.  As long as the claimant can
    show that the law interferes in some meaningful way with her s. 7 rights, this
    is sufficient to move to an assessment of whether that interference offends the
    principle against gross disproportionality.

[302]

At the next
    step, it is not sufficient for the court to mechanically place these factors on
    either side of the scale and see what happens.  Rather, the courts task is to
    decide how much weight to attribute to each factor based on the record before
    it, and then to place those factors on the scale for comparison.

[303]

When assessing
    the weight of the legislative objective factor, the court must take full
    account of the value to society of the objective underlying the challenged law. 
    That assessment demands an accurate description of that objective.

[304]

When assessing
    the weight of the impact factor, the court must determine the nature and
    extent of the infringement.  This requires an attempt to quantify in some way
    the harm to the s. 7 rights of the claimant properly attributable on the
    evidence to the challenged provision.  In other words, the court must evaluate
    the evidence and identify the degree to which the legislation creates or
    contributes to the infringement of the claimants s. 7 rights. The evidence
    will dictate the precision with which a connection can be drawn between the
    harm and the challenged legislation.  In some cases, the evidence will show
    that the legislation is the sole or the principal cause of that harm.  In other
    cases, the evidence will demonstrate that the legislation is but one of several
    causes of the harm, and that the degree to which the legislation is responsible
    for the harm cannot be determined.

[305]

In this case,
    the application judge erred by placing too little weight on the legislative
    objective factor, and too much weight on the impact factor.  This resulted
    in a skewed gross disproportionality analysis.  We will discuss each error in
    turn.

(a) The application judge under-emphasized the importance
    of the legislative objective of the communicating provision

[306]

In our view, the
    application judge substantially understated the objective of the communicating
    provision when she described its object as targeting noise, street congestion,
    and the possibility that the practice of prostitution will interfere with those
    nearby.  This appears to locate street prostitution towards the low end of the
    social nuisance spectrum.  That is not an accurate reflection of the evidence.

[307]

While street
    prostitution poses real and grave dangers to the prostitutes themselves, it
    also has a profound impact on members of the surrounding community. It is not
    simply that men are subject to unwanted solicitation by prostitutes, or that
    women are subject to unwanted solicitation by would-be customers. Street
    prostitution is associated with serious criminal conduct including drug
    possession, drug trafficking, public intoxication, and organized crime.
[16]

[308]

Further, it
    appears that the application judge discounted the importance of the legislative
    objective in part because she found, at para. 434, that the communicating
    provision [provides] little benefit to communities.  We do not agree with
    that approach. As we explained above, we do not accept the application judges
    finding that the communicating provision has been ineffective in reducing the
    social harms associated with prostitution. However, to the extent that the law
    may have been ineffective to some degree in achieving its purpose, the role of
    that ineffectiveness in the gross disproportionality analysis is limited
    because deference is to be accorded to Parliaments choice of means to achieve
    its objective:
Malmo-Levine
, at paras. 176-78.

[309]

In
Malmo-Levine
,
    the Court also discounted the significance of any alleged ineffectiveness of
    the law where it was the result of deliberate non-compliance.  In this case, it
    is the unconstitutional aspects of the bawdy-house and living on the avails
    provisions that could account in large measure for the inability of prostitutes
    to move indoors and off the street.  As those provisions will no longer be in
    force, no weight should be given to the ineffectiveness of the communicating
    provision in the gross disproportionality analysis because it remains to be
    seen whether the law will be effective in the future in achieving Parliaments
    objective.


(b)The application judge over-emphasized the impact of the
    communicating provision on the respondents security of the person

[310]

On the other
    side of the scale, the application judge found that the communicating provision
    endangers prostitutes by denying them the essential tool of customer
    screening.  In so holding, the application judge made no attempt to quantify
    the harm street prostitutes face by virtue of the communicating law, as
    distinct from the harm that they face due to other social and economic factors.
    She also failed to point to evidence in the record that would support her
    finding that face-to-face communication with a prospective customer is
    essential to enhancing prostitutes safety.  On our reading of the record, such
    a finding was not available.

[311]

There was
    anecdotal evidence from prostitutes that they often felt rushed in their
    negotiations with potential customers, and would quickly get into the customers
    cars to avoid detection by the police. To the extent that the application judge
    relied on that evidence, informed by her own common sense, to find that
    screening customers is essential to enhancing the safety of street prostitutes,
    we think her conclusion reaches well beyond the limits of the evidence.

[312]

While it is fair
    to say that a street prostitute might be able to avoid a bad date by
    negotiating details such as payment, services to be performed, and condom use
    up front, it is equally likely that the customer could pass muster at an early
    stage, only to turn violent once the transaction is underway.  It is also
    possible that the prostitute may proceed even in the face of perceived danger,
    either because her judgment is impaired by drugs or alcohol, or because she is
    so desperate for money that she feels compelled to take the risk.

[313]

The evidence
    before the application judge also indicated that, while face-to-face
    communication is an important aspect of customer screening, it is not the only
    method prostitutes use to assess the risk of harm.  One of the respondents
    experts who has done extensive research on street prostitution testified that
    most of the prostitutes she interviewed also relied on their intuition to
    decide whether or not to accept a job.  Street prostitutes also employ
    techniques such as assessing the prospective customers appearance, checking
    the backseat of his car, and checking for the presence or absence of door
    handles and lock release buttons.  Many street prostitutes also reported that
    they work with friends who take down the licence plate numbers of the cars they
    get into.  This evidence suggests that actual face-to-face communication is not
    the sole tool that street prostitutes rely on to assess the risk of harm.

[314]

It follows that
    the application judge also erred by equating this case with
PHS
.  In
PHS
,
the record was clear and undisputed that the risk of serious injury or
    death from intravenous drug use is all but eliminated when the drugs are
    injected with clean needles, in the presence of qualified health professionals:
PHS Community Services Society v. Canada (Attorney General)
, 2010 BCCA
    15, 100 B.C.L.R. (4
th
) 269, at para. 25. Chief Justice McLachlin
    summarized the trial judges findings succinctly, at para. 133, of the Supreme
    Courts reasons: Insite saves lives.  Its benefits have been proven. The
    Ministers decision effectively to shut down Insite was the sole and direct
    cause of the s. 7 infringement, and thus its impact weighed very heavily in the
    gross disproportionality analysis.

[315]

As we explained
    earlier in these reasons, we accept that the communicating provision has some
    material impact on the respondents security of the person because it denies
    them the opportunity to have face-to-face contact with prospective customers. 
    This is sufficient to engage the right to security of the person.  But when
    weighing the impact of the communicating provision, the most that can be said
    is that it is one factor, among many, that together contribute to the risk
    faced by street prostitutes.  The impact of the communicating provision on the
    dangers posed to street prostitutes is simply not comparable to the impact of
    the Ministers decision on the health and safety of the drug users in
PHS
.

[316]

There is also a
    striking disparity between the robustness of the record on the safety benefits
    of screening customers encountered on the streets, and the safety benefits of
    moving indoors and paying support staff (i.e. activities currently prohibited
    by ss. 210 and 212(1)(j)).  As we discussed above, the evidence before the
    application judge overwhelmingly indicated that indoor prostitution is safer
    than street prostitution.  The evidence also showed that prostitutes working
    indoors can significantly enhance their safety by establishing non-exploitative
    commercial relationships with people such as receptionists and security guards. 
    It was for these reasons that we concluded that the bawdy-house and living on
    the avails provisions were grossly disproportionate. By contrast, there was
    limited evidence to establish the extent to which face-to-face communication
    with customers will improve the safety of street prostitutes.

[317]

In fairness, it
    must be noted that the application judge considered the impact of the
    communicating law in concert with the impact of the other challenged
    provisions.  Though her analysis of the grossly disproportionate impact of the
    communicating provision focused on screening customers, it is apparent that her
    conclusion was driven in large part by the fact that, under the current regime,
    street prostitutes have no option to work indoors, even though the record
    clearly demonstrated that, under the right conditions, indoor prostitution is
    much safer than street prostitution.  In light of this prohibition, it seemed
    particularly egregious to deny prostitutes the opportunity to take potentially
    safety-enhancing measures when out on the street.  But the ground has now
    shifted.  This court has concluded that the bawdy-house prohibition is
    unconstitutional, which gives prostitutes the ability to move indoors.

[318]

We acknowledge
    that not all street prostitutes can, or will, avail themselves of this option. 
    The evidence before the application judge suggested that approximately 10-20%
    of prostitution occurs on the street, with the remainder taking place indoors
    either legally, through out-call work, or illegally, through in-call work.  The
    evidence further suggests that, while some street prostitutes would move indoors
    if the option were legally open to them, others would remain on the streets
    either by choice or by necessity.  The interveners PACE, PIVOT, and SWAUV explain
    that those who remain on the street by necessity would do so because they lack
    the resources to work indoors, either alone or with others. These survival sex
    workers are likely to be the most vulnerable and most marginalized of all
    prostitutes.

[319]

We accept that
    the court should take a claimants vulnerability into account in the gross
    disproportionality analysis. The challenge lies in determining how much weight
    to give it.  In our view, the controlling factor remains the extent of the
    impact of the law on the claimants s. 7 rights.  If the law is the sole, or
    dominant, cause of the s. 7 deprivation, and that deprivation serves to
    exacerbate the claimants already vulnerable position (as in
PHS
),
    then the impact would likely be found to be extreme.  On the other hand, if the
    law is only one of a number of factors that contributes to the s. 7 deprivation,
    it does not necessarily follow that the impact is extreme, even where the
    claimant is highly vulnerable.

[320]

So it is with
    the communicating provision.  It is clear that street prostitutes, and
    particularly survival sex workers, face tremendous disadvantage.  It is also
    clear that the communicating provision prevents street prostitutes from
    speaking to prospective customers before deciding whether or not to take a
    job.  What is less clear, however, is the degree to which this prohibition
    actually causes or contributes to the harm this group experiences.

[321]

The evidence
    suggests  and the submissions of many of the interveners reinforce  that
    poverty, addiction, gender, race and age are the primary sources of survival
    sex workers marginalization.  With that marginalization comes much of the risk
    associated with street prostitution.  For the reasons we have given, we are not
    persuaded that the communicating provision is a dominant, or even a
    significant, factor among the many social, economic, personal and cultural
    factors that combine to place survival sex workers at significant risk on the
    street.

[322]

This is not to
    say that the communicating provision does not contribute to some degree of
    harm.  As we have explained, we are satisfied that it has enough of an impact
    on prostitutes to engage their s. 7 rights to liberty and security of the person. 
    We are also satisfied that the vulnerability of street prostitutes, and
    especially survival sex workers who may be unable to move indoors regardless of
    the fate of the bawdy-house provisions, increases the negative impact of the
    communicating provision on their s. 7 rights.   However, when the weight of the
    legislative objective is balanced against the weight of the impact properly
    attributed to the legislation and not to a myriad of other factors, we cannot say
    that the scale drops into the range of gross

disproportionality.

[323]

We also conclude
    that the application judge erred in considering the harm to the wider community
    in weighing the impact factor of the communicating provision.  To repeat, the
    application judge held, at para. 434, that the harm suffered by prostitutes as
    a result of the challenged provisions, including the communicating provision,
    impacts upon the well-being of the larger society.  In our view, such
    considerations are irrelevant at this stage of the gross disproportionality
    analysis, where the courts sole focus is on the impact on the
claimants
s. 7 rights.

[324]

In sum, we are
    satisfied that the communicating provision does not violate any of the three principles
    of fundamental justice in issue.  It therefore does not infringe s. 7 of the
Charter
.

CONCLUSION

[325]

For the reasons
    set out above, we declare that ss. 210 and 212(1)(j) of the
Criminal Code
are unconstitutional.

[326]

To remedy the
    constitutional problem posed by s. 210, we strike the word prostitution from
    the definition of common bawdy-house in s. 197(1) as it applies to s. 210. 
    We suspend this declaration of invalidity for 12 months to give Parliament an
    opportunity to draft a
Charter
-compliant bawdy-house provision, should
    it elect to do so.

[327]

To remedy the
    constitutional problem posed by s. 212(1)(j), we read in words of limitation to
    clarify that the prohibition on living on the avails of prostitution applies
    only to those who do so in circumstances of exploitation.

[328]

We conclude that
    the communicating provision in s. 213(1)(c) does not offend the principles of
    fundamental justice. Accordingly, it does not infringe the respondents s. 7
Charter

rights.  We further conclude that the application judge was bound by the
Prostitution
    Reference

to hold that s. 213(1)(c) is a reasonable limit on the
    right to freedom of expression under s. 2(b) of the
Charter
.
We
    allow the appeal on these issues.

[329]

The stay of the
    application judges decision is extended for 30 days from the date of the
    release of these reasons so that all parties can consider their positions.  The
    practical effect is:

·

The declaration of invalidity in respect of the bawdy-house provisions
    is suspended for one year from the date of the release of these reasons.

·

The amended living on the avails provision takes effect 30 days
    from the date of the release of these reasons.

·

The communicating provision remains in full force.

[330]

We thank all
    counsel, including counsel for the interveners, for their thorough and
    thoughtful submissions.  This is not a case for costs.

Signed:        Doherty J.A.

M. Rosenberg J.A.

K. Feldman J.A.

MacPherson
    J.A. (Dissenting in part):

[331]

I have read the
    draft reasons prepared by my colleagues. I agree with their analysis and
    conclusions on all issues but one.

[332]

My colleagues would uphold the validity of s. 213(1)(c) of the
Criminal

Code
(communicating for the purpose of prostitution). They say
    that the provision is not arbitrary, overbroad or grossly disproportionate.
    They conclude that it is, therefore, in accordance with the principles of
    fundamental justice and s. 7 of the
Charter
.

[333]

I agree that the communicating provision is neither arbitrary nor
    overbroad.  However, in my view the application judge was correct to find that
    the effects of the communicating provision are grossly disproportionate to the
    goal of combating social nuisance and that the provision therefore violates s.
    7 of the
Charter
.


[334]

The basic test for gross disproportionality is well known and was
    recently restated by McLachlin C.J. in
PHS
, at para. 133,

citing
Malmo-Levine
:
    Gross disproportionality describes state actions or legislative responses to a
    problem that are so extreme as to be disproportionate to any legitimate
    government interest.

[335]

The application judge expressly applied this test to the communicating
    provision.  Relying on the
Prostitution Reference
, the application
    judge described the legislative objective of the communication provision as
    [the curtailment of] street solicitation and the
social
nuisance which
    it creates (emphasis in original). There is no doubt that this is a legitimate
    and important objective.

[336]

However, the application judge, after weighing all of the evidence
    presented, found that prostitutes, particularly those who work on the street,
    are at high risk of being the victims of physical violence and that the
    communicating provision places street prostitutes at greater risk of
    experiencing violence. She concluded that the danger posed to street
    prostitutes by the communicating provision greatly outweighed the goal of
    combating social nuisance.

[337]

I can see no error in the application judges determination that the
    communicating provision is grossly disproportionate. My colleagues would
    interfere with her analysis and uphold the provision. Respectfully, I disagree
    with their reasoning and conclusion on this issue. I do so for seven reasons.

[338]

First, and most importantly, there is a striking disconnect between my colleagues
    analysis and application of the principle of gross disproportionality to the
    bawdy-house and living on the avails provisions on the one hand, and their
    refusal to apply the same principle to the communicating provision on the
    other. With respect, my colleagues description of the three provisions and
    their effects on prostitutes does not support the conclusion that the
    communicating provision is not grossly disproportionate while the bawdy-house
    and living on the avails provisions are. To illustrate this point, I can do no
    better than quote some of the passages from my colleagues reasons.

[339]

In their discussion of the test for gross disproportionality in the
    section of their reasons relating to the communicating provision, my colleagues
    say this:

The
    onerous standard that must be met to make out gross disproportionality is
    illustrated in the related context of cruel and unusual punishment under s. 12
    of the
Charter
.
    In that context, the Supreme Court has also imposed a standard of gross
    disproportionality and used terms such as abhorrent or intolerable. While we do
    not say that the same test can be applied in the s. 7 context, these
    expressions assist in understanding the need for the claimants to show that the
    balance tips significantly in their favour. [Citations omitted.]

[340]

In my view, this analogy is far removed from the way my colleagues frame
    the test for gross disproportionality in the bawdy-house and living on the
    avails sections of their reasons. In the final section of their reasons, my
    colleagues inject notions of cruel and unusual punishment and abhorrent or
    intolerable as touchstones for the analysis of gross disproportionality. This
    injection lays a foundation for an improper approach to gross
    disproportionality that is sharply at odds with the analysis in the previous
    sections of their reasons.

[341]

In addition, referring to the effects of the three provisions, my
    colleagues say:

On
    the facts as found by the application judge,
each of the provisions
criminalizes conduct that would
    mitigate, to some degree, the risk posed to prostitutes.  On those findings,
    the relevant
Criminal Code
provisions,
individually and in tandem
, increase the risk of physical harm to persons engaged
    in prostitution, a lawful activity. They increase the harm by criminalizing
    obvious, and what on their face would appear to be potentially somewhat
    effective, safety measures.  The connection between the existence of the
    criminal prohibitions and the added risk to those engaged in prostitution is,
    on the facts as found by the application judge, not obscure or tangential. An
    added risk of physical harm compromises personal integrity and autonomy and
    strikes at the core of the right to security of the person.  On the facts as
    found, the added risk to prostitutes takes the form of an increased risk of
    serious physical harm or perhaps even worse. [Emphasis added.]

[342]

In a similar vein, my colleagues later state that [t]he
    non-exploitative conduct criminalized by the living on the avails provision and
    the communicative conduct criminalized by the communicating provision
    contribute in an
equally self-evident manner
to potential risks to
    prostitutes (emphasis added).

[343]

In the passages above, my colleagues equate the three impugned
    provisions and their effects on all prostitutes. However, in other places, my
    colleagues actually recognize the special vulnerability of street prostitutes. 
    The following passage vividly illustrates this point:

[T]he
    evidence in this case suggests that there is a very high homicide rate among
    prostitutes and the overwhelming majority of victims are street prostitutes. 
    As well, while indoor prostitutes are subjected to violence, the rate of
    violence is much higher, and the nature of the violence is more extreme,
    against street prostitutes than those working indoors.

[344]

The point I draw from these passages is a simple one.  If, as my
    colleagues conclude, the bawdy-house and living on the avails provisions cannot
    survive the balancing exercise required by the gross disproportionality
    principle, then the communicating provision, with its equally serious 
and
    perhaps worse
 effects on prostitutes rights to life and security of the
    person, should not survive it either.

[345]

Second, I disagree with my colleagues view that the trial judge
    substantially understated the objective of the communicating provision. My
    colleagues imply that the application judge erred in failing to recognize that
    [s]treet prostitution is associated with serious criminal conduct including
    drug possession, drug trafficking, public intoxication, and organized crime.

[346]

It is not clear to me how street prostitutions
association

with
    these other social ills increases the weight that ought to be assigned to the
    legislative objective. Indeed, in my view, the majoritys focus on this factor
    runs contrary to the
Prostitution Reference
, where the majority of the
    Supreme Court of Canada did not accept Lamer J.s position, at p. 1193, that
    the curbing of related criminal activity such as the possession and
    trafficking of drugs, violence and pimping was among the objectives of the
    communicating provision: see p. 1134, Dickson C.J.; p. 1211, Wilson J.

[347]

Drug possession, drug trafficking, public intoxication and organized
    crime are grave social nuisances that will persist regardless of whether the
    communicating provision is upheld or struck down. The objective of the
    communicating provision, as accepted by the majority of the Supreme Court of
    Canada in the
Prostitution Reference
, at p. 1134, is to eradicate the
    social nuisance that flows directly from street prostitution, namely, street
    congestion and noise, oral harassment of non-participants and general
    detrimental effects on passers-by or bystanders, especially children. My
    colleagues inclusion of this other criminal behaviour therefore seriously
    skews their analysis.

[348]

Third, turning to the other side of the scale, I am not persuaded by my
    colleagues suggestion that because screening is fallible, the security of the
    person infringement caused by the communicating provision should be assigned
    little weight. Screening may be imperfect, but the record demonstrates that it
    is nevertheless an essential tool for safety.

[349]

In particular, all the prostitutes who testified in the 2006
    parliamentary hearings on the solicitation laws agreed that working out the
    details of a transaction before getting into a vehicle, or going to a private
    location, was important for personal safety: Standing Committee on Justice and
    Human Rights, Subcommittee on Solicitation Laws,
The Challenge of Change: A
    Study of Canadas Criminal Prostitution Laws
(Ottawa: House of Commons,
    December 2006) (2006

Subcommittee Report
), at p. 65.
    Summarizing the statements of 91 street prostitutes from Vancouver, Katrina
    Pacey told the subcommittee that the communicating provision results in rushed
    negotiations, and does not allow for prostitutes to take the time required to
    adequately assess a client and to follow their own instincts, or to maybe note
    if that client has appeared on a bad date list. The expert evidence of Dr.
    MacDonald, Dr. Maticka-Tyndale, Dr. Benoit and Dr. Shaver supports this
    position as well.

[350]

In my view, the affidavit evidence in this case provides critical
    insight into the experience and knowledge of people who have worked on the
    streets, and who have been exposed to the risk of violence first-hand. This
    type of evidence should not be set aside lightly. The trial judge had a firm
    basis on which to find that the communicating provision endangers prostitutes
    by denying them the opportunity to screen clients.

[351]

Fourth, my colleagues further underestimate the magnitude of the
    security of the person infringement by focusing exclusively on screening and
    ignoring other ways in which the communicating provision adversely affects
    prostitutes safety.

[352]

My colleagues overlook evidence that, instead of reducing street
    prostitution, the communicating provision forces prostitutes into isolated and
    dangerous areas. As the application judge pointed out, at para. 331 of her
    reasons:

The 2006
Subcommittee Report
stated as follows at pp. 62-65:

In
    many of the cities we visited, a number of witnesses indicated that the
    enforcement of section 213 forced street prostitution activities into isolated
    areas, where they asserted that the risk of abuse and violence is very high.
    These witnesses told us that by forcing people to work in secrecy, far from
    protection services, and by allowing clients complete anonymity, section 213
    endangers those who are already very vulnerable selling sexual service on the
    street.

During
    our hearings, a number of witnesses maintained that the introduction of the
    communicating law (section 213) also led to the scattering of prostitutes,
    making them more vulnerable to violence and exploitation. Whereas in the past
    street prostitutes frequently worked in teams in an effort to reduce the risk
    of violence (for example by helping take down information such as clients'
    licence plate numbers and descriptions), they now tend to work in isolation
    from one another.  While this practice has the advantage of attracting
    less attention from police,  it also minimizes information-sharing, making
    prostitutes more vulnerable to meeting violent clients since they are not as
    well informed and are often less aware of the resources available to assist
    them.

The majority of the Subcommittee
    concluded at p. 89 that Canadas quasi-legal approach to adult prostitution
    causes more harm than good and marginalizes prostitutes, often leaving them
    isolated and afraid to report abuse and violence to law enforcement
    authorities.

[353]

By displacing prostitutes into isolated areas and discouraging them from
    working together, the communicating provision increases the risks faced by
    prostitutes. My colleagues disregard this displacement and assign no weight to
    its effects.

[354]

Fifth, my colleagues fail to properly consider the vulnerability of the
    persons most affected by the communicating provision, and the ways in which
    their vulnerability magnifies the adverse impact of the law.

[355]

The communicating provision most affects street prostitutes, a
    population the application judge found are largely the most vulnerable [and]
    face an alarming amount of violence. Street prostitutes comprise the vast
    majority of survival sex workers for whom, as the Canadian Civil Liberties
    Association (CCLA) points out, prostitution is a means to secure basic human
    necessities.

[356]

The equality values underlying s. 15 of the
Charter
require
    careful consideration of the adverse effects of the provision on disadvantaged
    groups. As the interveners POWER, Maggies and the CCLA point out in compelling
    fashion, persons engaged in prostitution are overwhelmingly women. Many are
    aboriginal women. Some are members of lesbian and gay communities. Some are
    addicted to drugs and/or alcohol, both of which are forms of disability. Since
    gender, race, sexual orientation and disability are all enumerated or analogous
    grounds under s. 15 of the
Charter
, the s. 7 analysis must take into
    account that prostitutes often hail from these very groups. In
New
    Brunswick (Minister of Health and Community Services) v. G.(J.)
,

[1999]
    3 S.C.R. 46, at para. 115, LHeureux-Dubé J. (joined by Gonthier and McLachlin
    JJ.), concurring in the result, stated:

[I]n considering
    the s. 7 rights at issue, and the principles of fundamental justice that apply
    in this situation, it is important to ensure that the analysis takes into
    account the principles and purposes of the equality guarantee in promoting the
    equal benefit of the law and ensuring that the law responds to the needs of
    those disadvantaged individuals and groups whose protection is at the heart of
    s. 15. The rights in s. 7 must be interpreted through the lens of ss. 15 and
    28, to recognize the importance of ensuring that our interpretation of the
    Constitution responds to the realities and needs of all members of society.

[357]

Instead, my colleagues have turned the question of pre-existing
    disadvantage on its head. They reason that because prostitutes marginalization
    contributes to their insecurity, the adverse effects of the law are diluted and
    should be given
less
weight.

[358]

To the contrary, prostitutes pre-existing vulnerability exacerbates the
    security of the person infringement caused by the communicating provision. It
    is precisely those street prostitutes who are unable to go inside or to work
    with service providers who are most harmed when screening is forbidden.

[359]

The communicating provision chokes off self-protection options for
    prostitutes who are already at enormous risk. The evidence in the record about
    the violence faced by street prostitutes across Canada is, in a word,
    overwhelming. One does not need to conjure up the face of Robert Pickton to
    know that this is true.

[360]

Any measure that denies an already vulnerable person the opportunity to
    protect herself from serious physical violence, including assault, rape and
    murder, involves a grave infringement of that individuals security of the
    person. The infringement caused by the communicating provision is especially
    significant in light of the reality that many prostitutes have few alternative
    means of protecting themselves. Putting aside the fiction that all prostitutes
    can easily leave prostitution by choice or practise their occupation indoors,
    the communicating provision closes off valuable options that street prostitutes
    do have to try to protect themselves.

[361]

Sixth, I do not accept my colleagues conclusion that the application
    judge also erred by equating this case with
PHS
. After a brief
    discussion, my colleagues state the rationale for their conclusion in this
    fashion: The impact of the communicating provision on the dangers posed to
    street prostitutes is simply not comparable to the impact of the Ministers decision
    on the health and safety of the drug users in
PHS
.

[362]

With respect, this conclusion and rationale are precisely the opposite
    of the comparison of this case and
PHS

earlier in my
    colleagues reasons, where they say:

We
    see a parallel between the circumstances of drug addicts who, because of a
    criminal prohibition, cannot access a venue where they can safely self-inject
    and therefore, must resort to dangerous venues, and prostitutes who, because of
    criminal prohibitions, cannot work at venues using methods that maximize their
    personal safety, but must instead resort to venues and methods where the
    physical risks associated with prostitution are much greater. In both
    situations, the criminal prohibitions, as interpreted by the courts, operate on
    those claiming the s. 7 breach in a way that interferes with their ability to
    take steps to protect themselves while engaged in a dangerous activity. In one
    sense, the prostitutes claim is even stronger in that prostitution, unlike the
    illicit possession and use of narcotics, is not an unlawful activity.

[363]

I prefer this analysis and reach this conclusion: the analysis of s. 7
    of the
Charter

in
PHS

supports the conclusion
    that the communicating provision in this case, like the Ministerial decision in
PHS
, violates s. 7.

[364]

Seventh, the deprivation caused by the communicating provision is
    particularly serious in light of the legal framework that applies to
    prostitutes and the circumstances in which they work. It must be recalled that,
    of the three challenged provisions, the communicating provision is by far the
    most recent in origin. The provision was enacted in 1985 at a time when both
    the bawdy-house and living on the avails provisions were already in force. The
    cumulative effect of these provisions was startling.  The bawdy-house provision
    forbade prostitutes  practitioners of a legal occupation  from engaging in
    their occupation in relatively safe indoor locations, forcing them to work on
    the streets. Then, the communicating provision prohibited prostitutes from communicating
    with prospective clients, usually in idling cars, to assess clients potential
    drunkenness, weirdness or violence. The 1985 addition of the communicating
    provision to the existing bawdy-house and living on the avails provisions
    created an almost perfect storm of danger for prostitutes. Prostitutes were
    first driven to the streets, and then denied the one defence, communication,
    that allowed them to evaluate prospective clients in real time.

[365]

This problem is not cured by the majoritys treatment of the first two
    impugned provisions. The communicating provision will remain deeply problematic
    even if the bawdy-house provision is struck down and the living on the avails
    provision is altered by reading in narrowing words, as proposed.

[366]

The interveners PACE Society, Downtown Eastside Sex Workers United
    Against Violence Society, and Pivot Legal Society jointly submit that many
    street prostitutes will be unable to take advantage of the safety benefits
    offered by moving indoors or hiring bodyguards. Many prostitutes will stay on
    the streets because of coercion, insufficient resources, or lack of support
    networks. For many prostitutes, safe working spaces are hard or impossible to
    come by.  I agree with this submission.

[367]

With the prohibition on bawdy-houses still in effect, it is impossible
    to obtain empirical evidence as to whether street prostitutes will indeed move
    indoors if they are legally able to do so. This is where the international
    experience is instructive. Although the Netherlands has completely legalized
    prostitution and given prostitutes the option to move indoors
, up to 10% of prostitution continues to occur on the
    street. Street prostitutes in the Netherlands are often addicted to drugs or
    suffer from mental illness, are unwanted in brothels, and are unable to pay to
    rent a window.

[368]

Even efforts by charities to help street prostitutes move indoors may
    not succeed while the communicating provision remains in force. Grandmas
    House, a charitable society that provided indoor space for street prostitutes
    in Vancouver, was established at a time when there were fears of a serial
    killer preying on prostitutes. (Those fears were, of course, borne out by the
    conviction of Robert Pickton.) The prostitutes using Grandmas House still
    relied on outdoor solicitation to find clients. It is not at all clear that
    this model could operate while public solicitation remains forbidden.

[369]

My colleagues concede that there is no evidence in the record to suggest
    that eliminating the bawdy-house provision will shift the ground to the extent
    that all street prostitutes will move inside. Accordingly, as the interveners
    put it, street prostitution will continue to exist. In that context, the
    communicating provision will continue to impair street prostitutes efforts to
    protect themselves. It will inhibit their efforts to work collectively. It will
    prevent them from communicating with their clients to assess potential danger.
    It will continue to drive street prostitutes to isolated, and potentially very

dangerous,

locations. All this implicates street prostitutes
    personal safety and, in far too many cases, the fragile line between life and
    death.

[370]

I conclude by recalling this passage from my colleagues reasons:

When
    a court is required to decide whether there is a sufficient connection between
    crime-creating legislation and an alleged interference with an individuals
    right to security of the person,
the court must examine the effect
    of that legislation in the world in which it actually operates
. This assessment is a practical and
    pragmatic one. [Emphasis added.]

[371]

The world in which street prostitutes actually operate is the streets,
    on their own.  It is not a world of hotels, homes or condos.  It is not a world
    of receptionists, drivers and bodyguards.

[372]

The world in which street prostitutes actually operate is a world of
    dark streets and barren, isolated, silent places.  It is a dangerous world,
    with always the risk of violence and even death.

[373]

My colleagues recognize, correctly, that the effects of two
Criminal
    Code

provisions that prevent indoor prostitutes safety measures
    are grossly disproportionate to their valid legislative objectives.  I regret
    that they do not reach the same conclusion with respect to a third provision
    that has a devastating impact on the right to life and security of the person
    of the most vulnerable affected group, street prostitutes.

[374]

For these reasons, I conclude that the application judge was right to
    determine that s. 213(1)(c) of the
Criminal Code
violated s. 7 of the
Charter
and is, therefore, unconstitutional.

Signed:        J. C. MacPherson J.A.

I agree E. A. Cronk
    J.A.

RELEASED:  DD March 26, 2012





[1]
As the application judge noted at endnote 4 of her reasons, we acknowledge that
    some prefer the term sex worker to prostitute, which they consider to be
    pejorative.  Others take the opposite view and argue that the term sex worker
    ignores the plight of women who are forced into prostitution.  In these
    reasons, as in the court below, we use the term prostitute to track the
    language of the
Criminal Code
, and should not be seen to be adjudicating
    on this issue.



[2]
That rule provides: A proceeding may be brought by application where these
    rules authorize the commencement of a proceeding by application or where the
    relief claimed is for a remedy under the
Canadian Charter of Rights and
    Freedoms
.



[3]
Throughout these reasons, we use feminine pronouns when referring to
    prostitutes because the evidence establishes that the majority of prostitutes
    are women.  However, we recognize that, as some of the interveners point out,
    there are also a significant number of men, and transgendered and transsexual
    persons working as prostitutes.



[4]
The Attorney General of Ontario was an intervener in the Superior Court of
    Justice.  It is an appellant on the appeal.



[5]
The appellants conceded that the liberty interest of all three respondents is
    engaged in respect of all the challenged provisions.  We accept that
    concession, although we observe that Ms. Lebovitch and Ms. Scott could not be
    prosecuted under the living on the avails provision based on the information in
    their affidavits.



[6]
The intervener Womens Coalition also argues that the broad purpose of all
    prostitution-related offences in the
Criminal Code
is to discourage
    prostitution.  It advocates the Swedish model of asymmetric criminalization,
    which prohibits the purchase, but not the sale, of sex.  The interveners POWER
    and Maggies dispute the wisdom of this model, arguing that it does nothing to
    enhance prostitutes safety and that it undermines, rather than enhances, the
Charter
value of equality.



[7]
Minutes of Proceedings and Evidence of Legislative Committee on Bill C-49 (November
    7, 1985), p. 8.10.



[8]
On appeal, the Supreme Court reversed this courts decision, agreeing with the
    reasons of Schroeder J.A. that the premises were not shown to be a common
    bawdy-house: [1968] S.C.R. 157.



[9]
While we do not place a great deal of weight on the international experience,
    we note that this evidence supports the respondents position.  This evidence
    shows that legalization and regulation of prostitution has increased the safety
    of prostitutes with minimal increase in the harm a bawdy-house prohibition is
    meant to address. The appellants read the evidence from other jurisdictions
    differently; they suggest that the evidence shows that the demand for
    prostitution increases with decriminalization, that organized crime continues
    to be involved, and that decriminalization does nothing to address the problems
    of child prostitution. The evidence relied upon by the appellants is
    unpersuasive and does not meet the evidence relied upon by the respondents. The
    appellants evidence rests upon the proposition that prostitution can and
    should be eliminated, an objective that is not supported by the legislative
    history of the challenged provisions.



[10]
House of Commons, Minutes of Proceedings and Evidence of the Legislative
    Committee on Bill C-49 (October 31, 1985), p. 7:10.



[11]
Some of the interveners submit that not all street prostitutes would move
    indoors if that option were legally available to them.  We address this issue
    later in these reasons.



[12]

Those sections include: s. 211: transporting persons to a
    bawdy-house; s. 212(1)(b): enticing a person who is not a prostitute to a
    common bawdy-house; s. 212(1)(c): concealing a person in a bawdy-house; s.
    212(1)(d): procuring a person to become a prostitute; s. 212(1)(e): procuring a
    person to become an inmate of a bawdy-house; s. 212(1)(f): directing a person
    on arrival in Canada to a bawdy-house; s. 212(1)(g): procuring a person to
    enter or leave Canada for the purpose of prostitution; s. 279.01: trafficking
    in persons; s. 279.011: trafficking in persons under age of 18 years; s.
    279.02: profiting from human trafficking.



[13]

Sexual Offences Act, 1956
, 4 & 5 Eliz. 2 c. 69, s. 30(1): It is an
    offence for a man knowingly to live wholly or in part on the earnings of
    prostitution.



[14]
A majority of the Supreme Court in
Downey
upheld s. 213(3) as a
    reasonable limit on the presumption of innocence in s. 11(d) of the
Charter
.



[15]
In
Grilo
, at p. 522, Arbour J.A. referred to s. 212(1)(h) as the
    classic pimping section.



[16]
The interveners POWER and Maggies dispute the legitimacy of the governments
    stated objectives of the communicating law as pandering to the moral
    sensibilities of some members of society.  We reject this submission for the
    reasons discussed above.


