



WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in
    this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1)
    or (2) of the
Criminal Code
shall continue.  These sections of
the
    Criminal Code
provide:

486.4(1)       Subject to
    subsection (2), the presiding judge or justice may make an order directing that
    any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the following
    offences;

(i)      an offence under
    section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172,
    172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this
    Act, as it read at any time before the day on which this subparagraph comes
    into force, if the conduct alleged involves a violation of the complainants
    sexual integrity and that conduct would be an offence referred to in
    subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014,
    c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or
    more offences being dealt with in the same proceeding, at least one of which is
    an offence referred to in paragraph (a).

(2)     In proceedings in respect
    of the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by
    the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection
    (2.2), in proceedings in respect of an offence other than an offence referred
    to in subsection (1), if the victim is under the age of 18 years, the presiding
    judge or justice may make an order directing that any information that could
    identify the victim shall not be published in any document or broadcast or
    transmitted in any way.

(2.2) In proceedings in respect
    of an offence other than an offence referred to in subsection (1), if the
    victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform
    the victim of their right to make an application for the order; and

(b) on application of the victim
    or the prosecutor, make the order.

(3)     In proceedings in respect
    of an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c.
    3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1)       Every person who
    fails to comply with an order made under subsection 486.4(1), (2) or (3) or
    486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.




WARNING

An order restricting publication in this proceeding was made under s. 517
    of the
Criminal Code
and continues to be in effect.  This section of the
Criminal Code
provides:

517(1)         If the prosecutor or the
    accused intends to show cause under section 515, he or she shall so state to
    the justice and the justice may, and shall on application by the accused,
    before or at any time during the course of the proceedings under that section,
    make an order directing that the evidence taken, the information given or the representations
    made and the reasons, if any, given or to be given by the justice shall not be
    published in any document, or broadcast or transmitted in any way before such
    time as

(a)     if a preliminary inquiry is
    held, the accused in respect of whom the proceedings are held is discharged; or

(b)     if the accused
    in respect of whom the proceedings are held is tried or ordered to stand trial,
    the trial is ended.

Failure to comply

(2)     Everyone who fails without
    lawful excuse, the proof of which lies on him, to comply with an order made
    under subsection (1) is guilty of an offence punishable on summary conviction.

(3)     [Repealed, 2005, c. 32, s. 17]

R.S., 1985, c. C-46, s. 517; R.S., 1985,
    c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17.




COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    N.S., 2022 ONCA 160

DATE: 20220224

DOCKET: C69437

Hoy, Coroza and Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

N.S.

Respondent

Deborah Krick, Michael Dunn and Jeremy Tatum, for the appellant

Marianne Salih and Carlos Rippell, for the respondent

Michael Rosenberg, Alana Robert and Holly Kallmeyer, for
    the interveners The Canadian Alliance for Sex Work Law Reform, Monica
    Forrester, Valerie Scott, Lanna Moon Perrin, Jane X and Alessa Mason

Tara Santini, for the intervener The Canadian Alliance
    for Sex Work Law Reform

James Lockyer, for the intervener Tiffany Anwar

Matthew Gourlay and Brandon Chung, for the intervener
    Deshon Boodhoo

Heard: November 19, 2021

On appeal from the acquittals entered by Justice Phillip
    Sutherland of the Superior Court of Justice, on May 17, 2021.

Hoy J.A.:


I.

INTRODUCTION

[1]

In 2014, Parliament enacted Bill C-36,
An Act to amend the Criminal
    Code in response to the Supreme Court of Canada decision in Attorney General of
    Canada v. Bedford and to make consequential amendments to other Acts
, 2nd
    Sess., 41st Parl., 2014 (assented to 6 November 2014), S.C. 2014, c. 25, in
    response to the Supreme Courts decision in
Canada (Attorney General) v.
    Bedford
, 2013 SCC 72, [2013] 3 S.C.R. 1101, declaring three
Criminal
    Code
[1]
offences addressing prostitution-related conduct unconstitutional.

[2]

The respondent was charged with several offences relating to his sale of
    the complainants sexual services. He successfully challenged the
    constitutionality of three of the new provisions of the
Criminal Code
enacted by Bill C-36  s. 286.2 (material benefit), s. 286.3 (procuring), and
    s. 286.4 (advertising)  on the basis that they infringe the rights of a
    hypothetical person to security of the person and, in some cases, to liberty under
    s. 7 of the
Canadian Charter of Rights and Freedoms
:
R. v. N.S.
,
    2021 ONSC 1628. The application judge found that the infringements were not a
    justifiable limit under s. 1 and struck down the impugned provisions.

[3]

The Crown appeals.

[4]

For the following reasons, I would allow the appeal, set aside the
    respondents acquittals, and order a new trial.

[5]

The Supreme Courts decision in
Bedford
provides important
    context for the issues on this appeal. Below, I first review
Bedford
.
    Next, I outline the scheme of Bill C-36 and set out the provisions relevant on
    this appeal, and then provide a brief overview of the reasons of the judge
    below. I then consider the purposes of Bill C-36 before addressing, in turn, each
    of the impugned provisions. I consider the reasons of the application judge in
    more detail in my analysis. Finally, I address the respondents arguments 
    renewed on appeal  that the impugned provisions infringe the right to freedom
    of expression under s. 2(b) and the right to freedom of association under s.
    2(d) of the
Charter
and are not justifiable limits under s. 1.


II.

BEDFORD

[6]

In
Bedford
, the Supreme Court agreed with the application judge
    that three provisions of the
Criminal Code
violated the security of
    the person interests under s. 7 of the
Charter
and were
    unconstitutional: to be an inmate of or found without lawful excuse in, or to
    be the owner, landlord, lessor, tenant or occupier of a bawdy-house (s. 210);
    living on the avails of anothers prostitution (s. 212(1)(j)); and
    communicating in public with respect to a proposed act of prostitution (s. 213(1)(c)).

[7]

The applicants in
Bedford
were all current or former
    prostitutes.
[2]
They filed an extensive record as part of a civil application. They did not
    rely on hypotheticals. The application judge made extensive findings of fact,
    including with respect to social and legislative facts, which the court held were
    entitled to deference:
Bedford
, at para. 49.

[8]

The court explained that the first question is whether the impugned laws
    negatively impact or limit the applicants security of the person, thus
    bringing them within the ambit of, or engaging, s. 7 of the
Charter
. It
    concluded that they did: they imposed dangerous conditions on prostitution:
    they prevent people engaged in a risky  but legal  activity from taking steps
    to protect themselves from the risks: at para. 60.

[9]

The practical effect of the bawdy-house provision was to confine lawful
    prostitution to two categories: street prostitution and out-calls. The
    application judge found that the safest form of prostitution was working
    independently from a fixed indoor location. The bawdy-house prohibition
    prevented prostitutes from doing so. Working from a fixed indoor location would
    permit prostitutes to have a regular clientele and set up safeguards.

[10]

As
    interpreted by the courts, the living on the avails provision prevented prostitutes
    from hiring bodyguards, drivers and receptionists  safeguards that could
    increase the prostitutes safety.

[11]

The
    prohibition on communicating in public prevented prostitutes from screening
    clients and setting terms on the use of condoms or safe houses, thereby
    significantly increasing the risks they faced.

[12]

The
    court then considered whether the impugned provisions respected the principles
    of fundamental justice: in particular, the basic values against arbitrariness,
    overbreadth and gross disproportionality. I provide more detail later in these
    reasons about what the court said about these principles and how compliance
    with them is to be assessed.

[13]

It
    found that the objective of the bawdy-house provision, which had been
    essentially unchanged since the 1953-54 revision to the
Criminal Code
,
    had long been identified as preventing community harms in the nature of
    nuisance and that the harms identified by the application judge were grossly
    disproportionate to that object.

[14]

The
    court had previously determined that the purpose of the living on the avails
    provision was to target pimps and the parasitic, exploitative conduct in which
    they engage. It agreed with the courts below that the provision was overbroad,
    at para. 142:

The law punishes everyone who lives on the avails of
    prostitution without distinguishing between those who exploit prostitutes (for
    example, controlling and abusive pimps) and those who could increase the safety
    and security of prostitutes (for example, legitimate drivers, managers, or
    bodyguards). It also includes anyone involved in business with a prostitute,
    such as accountants or receptionists. In these ways, the law includes some
    conduct that bears no relation to its purpose of preventing the exploitation of
    prostitutes. The living on the avails provision is therefore overbroad.

[15]

The
    object of the communicating provision had been explained in the
Reference
    re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.)
, [1990] 1 S.C.R. 1123
    (the 
Prostitution Reference
), at pp. 146-7: to take prostitution off
    the streets and out of public view in order to prevent the associated nuisances.
    The court agreed with the application judge that the negative impact on the
    safety and lives of street prostitutes was grossly disproportionate to the
    possibility of nuisance caused by street prostitution.

[16]

The
    court noted that the Attorney General had not seriously argued that the laws,
    if found to infringe s. 7, could be justified under s. 1 of the
Charter
.
    Therefore, the court found that the impugned laws were not saved by s. 1.

[17]

While
    it declared the impugned provisions unconstitutional, the court carefully added
    this, at para. 165:

That does not mean that Parliament is precluded from imposing
    limits on where and how prostitution may be conducted The regulation of
    prostitution is a complex and delicate matter. It will be for Parliament,
    should it choose to do so, to devise a new approach, reflecting different
    elements of the existing regime.

[18]

The
    court suspended its declaration of invalidity for one year.


III.

THE PCEPA

[19]

Before
    the one-year suspension elapsed, Parliament enacted Bill C-36
.
The
    Acts short tile is the
Protection of Communities and Exploited Persons Act
(the PCEPA).

[20]

The
    PCEPA amended or repealed the provisions which the Supreme Court had declared
    unconstitutional in
Bedford
and enacted four new offences in Part VIII
    of the
Criminal Code
 Offences Against the Person and Reputation 
    under a new heading: Commodification of Sexual Activity.

[21]

At
    the time of
Bedford
, it was not illegal to exchange sex for money. The
    PCEPA changed that. While some advocated for the decriminalization and
    regulation of the sex trade, Parliament adopted a variant of the so-called
    Nordic Model, which had been adopted in several other countries. The Nordic
    Model views the sex trade as a form of sexual exploitation. It targets those
    who create the demand for prostitution and those who capitalize on it.
    Parliament did not accept that persons who provide sexual services for consideration
    should be viewed as workers and that prostitution should be legal sex work:
    see the comments of Minister of Justice and Attorney General of Canada Peter
    MacKay in House of Commons, Standing Committee on Justice and Human Rights,
Evidence
,
    41st Parl., 2nd Sess., No. 32 (7 July 2014), at pp. 9-10. It was concerned that
    prostitution was linked to human trafficking. As the Minister of Justice put it
    in debate at second reading, [D]ecriminalization and legalization [of
    prostitution] lead to increased human trafficking for the purpose of sexual
    exploitation; see also comments of Mr. Royal Galipeau (Ottawa-Orléans), House
    of Commons,
Debates (Hansard)
, 41st Parl., 2nd Sess., Vol. 147, No.
    117 (26 September 2014), at p. 7885.

[22]

Section
    286.1(1) now provides that everyone who obtains for consideration, or
    communicates with anyone for the purpose of obtaining for consideration, the
    sexual services of a person is guilty of an offence.
[3]
While buying sex is now a
    criminal offence, the PCEPA does not criminalize the sale of sexual services. Further,
    under s. 286.5, set out later in this part of these reasons, the PCEPA provides
    immunity from prosecution to persons who aid or abet an offence under s. 286.1
    in relation to the provision of their own sexual services. The PCEPA views
    those who provide sexual services for consideration as exploited persons.
    Whether Parliament could or should have criminalized obtaining sexual services
    for consideration is not before this court. Section 286.1 is not challenged in
    this case.
[4]


[23]

This
    appeal concerns the other three offences created by Parliament.

[24]

The
    PCEPA created a new material benefit offence in s. 286.2(1).
[5]
This provision modernizes the living on the avails of prostitution offence
    which was found unconstitutional in
Bedford
. It provides that every
    person who receives a financial or other material benefit, knowing that it is
    obtained by or derived directly or indirectly from the commission of an offence
    under s. 286.1(1), is guilty of an offence.

[25]

Section
    286.2(4) creates exceptions to the general prohibition in s. 286.2(1). Two of those
    exceptions permit a person who provides sexual services for consideration, on
    certain terms, to hire bodyguards, drivers and receptionists. The provisions
    found unconstitutional in
Bedford
did not permit such safeguards.
    Section 286.2(5), meanwhile, provides exceptions to those exceptions.

Material benefit from sexual services

286.2 (1)
Every person who
    receives a financial or other material benefit, knowing that it is obtained by
    or derived directly or indirectly from the commission of an offence under
    subsection 286.1(1), is guilty of

(a)
an indictable offence
    and liable to imprisonment for a term of not more than 10 years; or

(b)
an offence punishable on
    summary conviction.

Exception

(4)
Subject to subsection (5),
    subsections (1) and (2) do not apply to a person who receives the benefit

(a)
in the context of a legitimate
    living arrangement with the person from whose sexual services the benefit is
    derived;

(b)
as a result of a legal
    or moral obligation of the person from whose sexual services the benefit is
    derived;

(c)
in consideration for a
    service or good that they offer, on the same terms and conditions, to the
    general public; or

(d)
in consideration for a
    service or good that they do not offer to the general public but that they
    offered or provided to the person from whose sexual services the benefit is
    derived, if they did not counsel or encourage that person to provide sexual
    services and the benefit is proportionate to the value of the service or good.

No exception

(5)
Subsection (4) does not
    apply to a person who commits an offence under subsection (1) or (2) if that
    person

(a)
used, threatened to use
    or attempted to use violence, intimidation or coercion in relation to the
    person from whose sexual services the benefit is derived;

(b)
abused a position of
    trust, power or authority in relation to the person from whose sexual services
    the benefit is derived;

(c)
provided a drug, alcohol
    or any other intoxicating substance to the person from whose sexual services
    the benefit is derived for the purpose of aiding or abetting that person to
    offer or provide sexual services for consideration;

(d)
engaged in conduct, in
    relation to any person, that would constitute an offence under
    section 286.3; or

(e)
received the benefit in
    the context of a commercial enterprise that offers sexual services for
    consideration.

[26]

The
    PCEPA also modernized and reformulated the prior procuring offence in s. 212(1)
    by enacting s. 286.3(1)
[6]
:

Procuring

286.3

(1)
Everyone
    who procures a person to offer or provide sexual services for consideration or,
    for the purpose of facilitating an offence under subsection 286.1(1),
    recruits, holds, conceals or harbours a person who offers or provides sexual
    services for consideration, or exercises control, direction or influence over
    the movements of that person, is guilty of an indictable offence and liable to
    imprisonment for a term of not more than 14 years.

[27]

And,
    in s. 286.4, Parliament created an entirely new offence prohibiting the
    advertising of an offer to provide sexual services:

Advertising sexual services

286.4
Everyone who knowingly
    advertises an offer to provide sexual services for consideration is guilty of

(a)
an indictable offence
    and liable to imprisonment for a term of not more than five years; or

(b)
an offence punishable on
    summary conviction.

[28]

In
    addition to creating the four new offences, the PCEPA provides immunity from
    prosecution for persons who provide their own sexual services for consideration
    in s. 286.5:

Immunity  material benefit and advertising

286.5

(1)
No
    person shall be prosecuted for

(a)
an offence under
    section 286.2 if the benefit is derived from the provision of their own sexual
    services; or

(b)
an offence under
    section 286.4 in relation to the advertisement of their own sexual
    services.

Immunity  aiding, abetting, etc.

(2)
No person shall be
    prosecuted for aiding, abetting, conspiring or attempting to commit an offence
    under any of sections 286.1 to 286.4 or being an accessory after the
    fact or counselling a person to be a party to such an offence, if the offence
    relates to the offering or provision of their own sexual services.

[29]

For
    ease of reference, a copy of these provisions is set out in Appendix A to
    these reasons.

[30]

In
    response to
Bedford
, Parliament also replaced the communicating
    offence in s. 213(1)(c) of the
Criminal Code
. Now, except for
    communications in public places that impede traffic or take place in or next to
    school grounds, playgrounds or day care centres, communications by a person
    selling their own sexual services for consideration are no longer criminalized.
    Section 213 is not at issue on this appeal.

[31]

With
    this framework, I turn to the reasons of the application judge.


IV.

AN OVERVIEW OF THE REASONS OF THE APPLICATION JUDGE

[32]

The
    respondent was charged with offences under ss. 286.1(1), 286.2(1),
    286.3(1) and 286.4. He did not assert that s. 7 was engaged on the facts of his
    case. Rather, he challenged the constitutionality of ss. 286.2(1), 286.3(1) and
    286.4 based on four reasonable hypotheticals. The application judge found
    that two of them would engage the impugned provisions in a manner that infringed
    s. 7:

Hypothetical 2: Students Deciding to Do Sex Work

Two or more 21-year old students at the University of Western
    Ontario are unable to afford their tuition and living expenses at university.
    They decide to become sex workers, a profession with which they are entirely
    unfamiliar.

They approach a known sex worker for assistance and advice. She
    facilitates their plan by helping them set up, including helping them find
    rental premises out of which to operate, helping them hire security and a
    receptionist, and arranging for a professional photographer and website
    designer to facilitate their advertising on the internet. The two or more
    students then lease premises, hire security, a receptionist and a bookkeeper,
    and commence to sell sexual services.

Hypothetical 4: Male Sex Worker in Rented Residence

The sex worker is male. He is a student is his final year. He
    decides to lease premises, a room with the same students in hypothetical two.
    He uses the premises to conduct his commercial sex work. He makes his own
    money. He pays rent for the use of the premises for his living residence and
    where he conducts his commercial sex work.

[33]

The
    application judge directed himself that the first issue to be considered was
    the purpose of the PCEPA and the impugned provisions.

[34]

He
    found that the purpose of the PCEPA is to immunise from prosecution any
    individual sex worker who performs sex work, and to allow the assistance of
    third parties in limited circumstances, while making all other aspects of
    commercial sex work illegal: at para. 52.

[35]

Next,
    the application judge determined that the sex workers in the hypotheticals
    would be caught by the material benefit and procuring provisions, triggering
    their s. 7 right to liberty. The students, in working cooperatively, would
    constitute a commercial enterprise and therefore could not benefit from the
    exception to s. 286.2(1). Nor would they benefit from the immunity in s. 286.5.
    By assisting each other in conducting commercial sex and advertising and in
    providing accommodation, they would also be guilty of procuring, harbouring or
    concealing for the purpose of facilitating commercial sex work and directing,
    controlling, or influencing the movements of someone for the purpose of
    facilitating commercial sex work. The experienced sex worker who gives the
    students advice would also be guilty of procuring.

[36]

The
    sex workers right to security of the person would also be engaged. Because
    they would be caught by the material benefit and procuring provisions, they
    would not be able to hire security or take other steps to protect themselves.
    They could also not receive advice from the experienced sex worker, because she
    would be guilty of procuring. Finally, the application judge concluded that
    while the students would not be caught by the advertising prohibition because
    of the immunity in s. 286.5, their security of the person was engaged because
    they could not communicate frankly with their customers.

[37]

Assessed
    against the objectives of the legislation, the application judge found all
    three provisions to be overbroad. Parliament had indicated that one of the
    objectives is to protect sex workers from violence, abuse and exploitation to
    protect the health and safety of sex workers. The impugned provisions limit or
    prevent some means of protection and safety for some, if not all, sex workers.

[38]

Further,
    their impact is grossly disproportionate. The application judge held that [t]he
    objective of eliminating or lessening commercial sex work through the banning
    of advertising cannot be made at the safety and security of commercial sex
    workers: at para. 177. Parliament cannot allow sex work to continue and then
    grossly limit or prevent sex workers ability to protect their safety.

[39]

He
    concluded that the infringements of s. 7 were not saved by s. 1. As in
Bedford
,
    the Crown had not seriously addressed the s. 1 issue in its factum. In any
    event, it would be very difficult to justify an infringement of s. 7 under s.
    1.

[40]

Having
    found that s. 7 had been infringed and was not a justifiable limit under s. 1,
    the application judge declined to address the alleged infringement under s. 2(d)
    of the
Charter
. He also found that he was bound by this courts
    decision in
Bedford
[7]
with respect to the advertising provision (s. 286.4), and therefore was
    compelled to find that it was not an unjustified infringement of s. 2(b) of the
Charter
.

[41]

He
    declared the impugned provisions of no force and effect, with immediate effect:
R. v. N.S.
, 2021 ONSC 2920. This court granted the Crowns application
    to stay the declaration, pending this appeal:
R. v. N.S.
, 2021 ONCA
    694. With the consent of the parties, at the hearing of this appeal, the court
    extended the stay pending the release of these reasons.


V.

SECTION 7 AND THE PURPOSE OF THE PCEPA

[42]

Section
    7 provides:

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.

[43]

As
    explained in
Bedford
, a laws compliance with s. 7 of the
Charter
turns
    on a proper assessment of the laws objective. When an impugned provision
    engages s. 7, its purpose must be identified to determine whether the
    impairment of the s. 7 right is in accordance with the principles of
    fundamental justice. Does it respect the basic values against arbitrariness,
    overbreadth and gross disproportionality?

[44]

The
    Supreme Court explained in
Bedford
that the basic values against
    arbitrariness and overbreadth target the absence of connection between the
    impugned laws purpose and the s. 7 deprivation. A law is arbitrary if there is
    no connection between the effect and object of the law. A provision suffers
    from overbreadth when it is so broad in scope that it includes some conduct
    that bears no connection to its objective: i.e., the law is rational in some
    cases, but overreaches in its effect in others. The overbreadth analysis does
    not evaluate the appropriateness of the objective:
R. v. Moriarity
,
    2015 SCC 55, [2015] 3 S.C.R. 485, at paras. 30-31.

[45]

A
    law offends the value against gross disproportionality when it deprives a
    person of life, liberty or security of the person in a manner that is grossly
    disproportionate to the laws objective. The rule against gross
    disproportionality only applies in extreme cases, where the seriousness of the
    deprivation is totally out of sync with the objective of the measure: e.g., a
    law intended to keep streets clean that imposes life imprisonment for spitting
    on the sidewalk; see
Bedford
, at para. 120.

[46]

It
    is clear from
Bedford
that the s. 7 analysis turns on the purpose of
    the
particular provision
that is impugned. In
Bedford
,
    the purpose of each provision had previously been determined and the court
    assessed overbreadth and gross disproportionality against those purposes. Here,
    in the absence of binding authority, the application judge had to assess the
    purpose of each provision.

[47]

The
    purposes of the PCEPA are relevant in determining the purpose and scope of the
    impugned provisions. I therefore address the purposes of the PCEPA as a whole before
    turning to each of the impugned provisions.

[48]

A
    laws purpose can be inferred from explicit legislative statements, the text of
    the law read in its context, extrinsic evidence such as legislative history and
    evolution, as well as prior judicial interpretations:
R. v. Safarzadeh-Markhali
, 2016 SCC 14, [2016] 1 S.C.R. 180, at para. 31; see also Hamish
    Stewart,
Fundamental Justice: Section 7 of the Charter of Rights and
    Freedoms
, 2nd ed. (Toronto: Irwin Law, 2019), at p. 157,
    citing
R. v. Downey
, [1992] 2 S.C.R. 10, at
    paras. 30-35. Although legislative debates cannot override specific text in
    legislation, they may still inform the interpretation process:
MediaQMI
    v. Kamel
, 2021 SCC 23, at para. 37.

[49]

The
    then Minister of Justice, Peter MacKay, described the PCEPA as making prostitution
    itself illegal and a fundamental paradigm shift in approach. He stated before
    the House of Commons Standing Committee on Justice and Human Rights that the
    goal of the PCEPA is to reduce the demand for prostitution with a view to discouraging
    entry into it, deterring participation in it, and ultimately abolishing it to
    the extent possible. He reiterated this, almost word for word, before the Standing
    Senate Committee on Legal and Constitutional Affairs, describing prostitution
    as an inherently degrading and dangerous activity:
Proceedings of the
    Standing Senate Committee on Legal and Constitutional Affairs
, 41st Parl.,
    2nd Sess., No. 15 (9 September 2014) at p. 12. At the Senate Committee, he explained
    that the PCEPA would not only help reduce prostitution itself, but will create
    the climate in which prostitutes can take
certain
    specific measures
, steps to further protect themselves or insulate
    themselves from violence (emphasis added): at p. 22. At the debates at
    the second reading of the PCEPA, Minister MacKay stated that prostitution
    disproportionately impacts on societys most marginalized and vulnerable and
    that [a]n additional objective is to reduce the likelihood of third parties
    facilitating exploitation through prostitution for their gain, and the key and
    operative word here is exploitation: at p. 6653.

[50]

Typically, legislative history comes from parliamentary speeches and
    debates or statements by ministers or members of Parliament. Other acceptable
    documentary sources of legislative history include government policy papers
    such as a white paper, green paper, budget paper and even reports or studies
    produced outside government which existed at the time of the enactment and were
    relied on by the government that introduced the legislation: P.W. Hogg and Wade
    Wright,
Constitutional Law of Canada
,
    loose-leaf (2021-Rel. 1) 5th ed. (Toronto: Carswell, 2007), at s. 60:1; see
    also Ruth Sullivan,
Sullivan on the Construction of Statutes
, 6th ed. (Markham: LexisNexis, 2014), at
para.
9.48. For example, the Supreme Court referred to the Technical Paper
    on the Federal Carbon Pricing Backstop in its review of legislative history to
    discern the pith and substance of the
Greenhouse Gas Pollution Act
in
Reference re Greenhouse Gas Pollution Act
, 2021 SCC 11, 455 D.L.R. (4th) 1,
per
Wagner C.J.

[51]

In
    this case, the legislative history includes the Technical Paper produced by the
    Department of Justice on the new prostitution-related offences, which was
    tabled before and adverted to at the parliamentary committees tasked with
    reviewing the legislation. The Technical Paper describes the purpose of the
    PCEPA as follows:

[The PCEPA] seeks to denounce and prohibit the demand for
    prostitution and to continue to denounce and prohibit the exploitation of the
    prostitution of others by third parties, the development of economic interests
    in the exploitation of the prostitution of others and the institutionalization
    of prostitution through commercial enterprises, such as strip clubs, massage
    parlours and escort agencies in which prostitution takes place. It also seeks
    to encourage those who sell their own sexual services to report incidents of
    violence and leave prostitution.

[52]

The
    Technical Paper goes on to describe the PCEPAs overall objective as reducing
    the demand for prostitution with a view to discouraging entry into it,
    deterring participation in it and ultimately abolishing it to the greatest
    extent possible: Technical Paper, at p. 3.

[53]

The
    Technical Paper, at p. 7, describes the PCEPA as seeking to ensure the safety
    of
all
by reducing the demand for prostitution,
    with a view to deterring it and ultimately abolishing it to the greatest extent
    possible (emphasis added). It adds that the PCEPA recognizes that this
    paradigm shift will take time and therefore does not prohibit individuals from
    taking
certain
measures to protect themselves when
    selling their own sexual services (emphasis added). It describes Parliament as
    balancing the need to protect those subjected to prostitution from violence and
    exploitation with the need to protect communities from prostitutions harmful
    effects, including exposure of children; and, the need to protect society
    itself from the normalization of a gendered and exploitative practice.

[54]

Available
    intrinsic evidence of parliamentary intent includes the lengthy preamble to the
    PCEPA:

Whereas the Parliament of Canada has grave concerns
    about the exploitation that is inherent in prostitution and the risks of
    violence posed to those who engage in it;

Whereas the Parliament of Canada recognizes the
    social harm caused by the objectification of the human body and the
    commodification of sexual activity;

Whereas it is important to protect human dignity and
    the equality of all Canadians by discouraging prostitution, which has a
    disproportionate impact on women and children;

Whereas it is important to denounce and prohibit the
    purchase of sexual services because it creates a demand for prostitution;

Whereas it is important to continue to denounce and
    prohibit the procurement of persons for the purpose of prostitution and the
    development of economic interests in the exploitation of the prostitution of
    others as well as the commercialization and institutionalization of
    prostitution;

Whereas the Parliament of Canada wishes to encourage
    those who engage in prostitution to report incidents of violence and to leave
    prostitution;

And whereas the Parliament of Canada is committed to
    protecting communities from the harms associated with prostitution;

[55]

The
    preamble reflects that Parliament has fundamentally changed the lens through
    which it views prostitution. Rather than viewing prostitution as a nuisance, it
    views prostitution as inherently exploitative and something that must be
    denounced and discouraged.

[56]

Available
    intrinsic evidence also includes the short title of the PCEPA (the
Protection
    of Communities and Exploited Persons Act)
, which indicates that, as stated
    in the Technical Paper, Parliament considered the safety of all in enacting
    the legislation. It also includes the heading which prefaces all these
    offences: Commodification of Sexual Activity. The preamble describes the
    commodification of sexual activity as causing social harm.

[57]

There
    is some prior appellate judicial interpretation of the purpose of the PCEPA. In
R. v. Gallone
, 2019 ONCA 663, 147 O.R. (3d) 225, this court accepted
    the statement in the Technical Paper that the overall objective of the PCEPA is
    to reduce the demand for prostitution with a view to discouraging entry into
    it, deterring participation in it and ultimately abolishing it to the greatest
    extent possible:
Gallone
, at para. 92. And in the context of a Crown
    appeal from a sentence for purchasing the sexual services of a child, the
    Manitoba Court of Appeal described the purpose of the PCEPA as to discourage,
    denounce and prohibit the demand for prostitution in order to protect
    communities, human dignity and equality, and to encourage victims to report
    violence and leave prostitution:
R. v. Alcorn
, 2021 MBCA 101, at
    para. 14.

[58]

As
    noted above, the application judge found that the purpose of the PCEPA is to
    immunise from prosecution any individual sex worker who performs sex work, and
    to allow the assistance of third parties in limited circumstances, while making
    all other aspects of commercial sex work illegal: at para. 52. He found that a
    second purpose was to protect sex workers from violence, abuse and exploitation
    to protect the health and safety [of] sex workers, namely women and girls: at para. 165.

[59]

I
    would describe the purposes of the PCEPA differently from the application
    judge. In my view, the PCEPA has three purposes: first, to reduce the demand
    for prostitution with a view to discouraging entry into it, deterring
    participation in it and ultimately abolishing it to the greatest extent
    possible, in order to protect communities, human dignity and equality; second, to
    prohibit the promotion of the prostitution of others, the development of
    economic interests in the exploitation of the prostitution of others, and the
    institutionalization of prostitution through commercial enterprises in order to
    protect communities, human dignity and equality; and, third, to mitigate some of
    the dangers associated with the continued, unlawful provision of sexual
    services for consideration. In particular, Parliaments latter objective is to
    ensure that, as much as possible, persons who continue to provide their sexual
    services for consideration, contrary to law, can avail themselves of the
    safety-enhancing measures identified in
Bedford
and report incidents
    of violence, without fear of prosecution.

[60]

The
    main difference between the parties is how they would describe the PCEPAs
    purpose in relation to protection or safety. The Crown argues that the PCEPA
    permits
some
measures to enhance safety as an
    ancillary objective. The respondent and the interveners argue that the
    application judge correctly described one of the purposes of the PCEPA as to protect
    sex workers from violence, abuse and exploitation to protect the health and
    safety of sex workers. As is apparent from my articulation of the purposes of
    the PCEPA, I disagree with that latter characterization.

[61]

There
    is no doubt that Parliament was concerned about the safety of those who engage
    in the provision of sexual services for consideration. There was express
    discussion about this issue during the parliamentary debates. The short title
    of the PCEPA (the
Protection of Communities and Exploited Persons Act
),
    the recognition in the preamble of the risks of violence posed to those who
    engage in [prostitution], the statements in the Technical Paper and the fact
    that the PCEPA permits those who provide their sexual services for
    consideration to employ the safety measures identified in
Bedford
further
    indicate that the safety of those who provide sexual services for consideration
    was a concern of Parliament.

[62]

The
    PCEPA, however, was an explicit response to
Bedford
. While Parliament addressed
    the specific safety issues which were the focus in
Bedford
 working
    from a fixed indoor location, hiring persons who may enhance safety, and the
    ability to negotiate conditions for the sale of sexual services in a public
    place  it also chose to criminalize prostitution by prohibiting the demand and
    reinforcing the prohibition on the exploitation of others by third parties. As
    noted above, Minister MacKay was clear that Parliament sought to create the
    climate in which prostitutes can take
certain specific
    measures
, steps to further protect themselves or insulate themselves
    from violence. He was also clear, however, that the best way to protect them
    was to reduce prostitution itself. This is reflected in the scheme of the PCEPA
    as a whole.

[63]

It
    is for these reasons that I characterize the safety-related purpose of the
    PCEPA (beyond the protection of communities, human dignity and equality, through
    its first and second purposes) as being limited to ensuring that persons who
    continue to provide their sexual services for consideration, contrary to law,
    can avail themselves of the safety-enhancing measures identified in
Bedford
and report incidents of violence.

[64]

With
    these purposes in mind, I turn to the first of the impugned provisions.


VI.

SECTION 286.2 (MATERIAL BENEFIT)

The application judges reasons

[65]

The
    application judge found that the goal of s. 286.2 is to denounce and prohibit
    economic interests and the commercialization of sexual services for
    consideration: at para. 82. He then considered whether a sex worker who shares
    space or expenses with other sex workers would be subject to prosecution under
    s. 286.2.

[66]

Neither
    benefit nor commercial enterprise is defined in the
Code
. He
    concluded that, in the context of commodification of sexual activity, benefit
    has an ordinary meaning of any profit, advantage or acquired right or privilege
    and commercial enterprise means any enterprise or business entered into for
    profit: at para. 105. He in turn concluded that, by sharing expenses, the
    students in the two hypotheticals received a financial benefit from each other
    which increases their respective profits, and that their respective sex work
    enterprises were commercial enterprises and thus within the exception to the
    exception in s. 286.2(5)(e). Further, each sex worker did not qualify for
    immunity under s. 285.5(1)(a) and (2) because each sex worker would be
    receiving a benefit which is not derived from the provisions of their own
    sexual services: at para. 110. Because they do not qualify for immunity, their
    respective rights to liberty are infringed.

[67]

Their
    respective security of the person is also infringed because they would not be
    able to hire third parties in a cooperative or cost sharing arrangement to
    assist with their security. The application judge continued, at para. 113,

as the evidence indicated, not all sex workers make on their
    own the amounts of money required to fund solely the expenses of third parties
    to provide goods and services for their protection and health or accommodation
    where they are not subject to being discharged. For these sex workers who
    require benefits from a cooperative cost sharing arrangement, the legislative
    schemes prevent them from doing so.

Analysis

[68]

The
    application judges finding that s. 286.2 engages s. 7 is rooted in his
    interpretation of commercial enterprise in s. 286.2(5)(e) and his conclusion
    that the hypothetical sex workers would not enjoy immunity under s. 286.5(1).

[69]

The
    governing modern principle of statutory interpretation is that the words of an
    Act are to be read in their entire context and in their grammatical and
    ordinary sense harmoniously with the scheme of the Act, the object of the Act,
    and the intention of Parliament:
Rizzo & Rizzo Shoes Ltd. (Re)
,
    [1998] 1 S.C.R. 27, at para. 21;
R. v. Hutchinson
, 2014 SCC 19, [2014]
    1 S.C.R. 346, at para. 16.

[70]

Applying
    those principles, I do not agree with the application judge that the
    cooperative arrangement in the hypotheticals constitutes a commercial
    enterprise within the meaning of s. 286.2(5).
[8]

[71]

In
    the hypothetical cooperative arrangement, each person who provides sexual
    services for consideration derives a benefit: she receives security services
    that she may not have been able to afford on her own. Although the hypothetical
    also describes the sharing of other services, I will focus on the sharing of
    security both as most relevant to the security of the person interest in s. 7
    and because this was the aspect that the application judge focused on.

[72]

Section
    286.2(4) provides that, subject to s. 286.2(5), s. 286.2(1) does not apply to
    certain persons who receive a benefit. The parties agree, and I accept, that
    subject to s. 286.2(5), s. 286.2(4)(d) is applicable. The sex workers in the
    hypothetical cooperative arrangement receive the benefit of the cooperative
    arrangement in consideration for a service or good that they do not offer to
    the general public but that they offered or provided to the person from whose
    sexual services the benefit is derived and they did not counsel or encourage
    that person to provide the sexual services and the benefit is proportionate to
    the value of the service or good.

[73]

The
    application judge turned to the
Oxford Canadian Dictionary
for
    assistance, noting that it defines commercial as engaged in or concerned with
    profit and enterprise as a business or businesses collectively. That is a
    useful starting point, but it is not determinative.

[74]

The
    hypothetical describes a cooperative: an arrangement where sex workers
    cooperate to obtain premises and services related to their respective sales of
    sexual services. The cost of the premises and services is shared; each sex
    worker pays their share out of their earnings from the sale of their sexual
    services. The cooperative is not engaged in or concerned with profit. It
    operates on a shared cost basis. It is the opposite of an enterprise concerned
    with profit. Each individual sex worker, not the cooperative, is concerned with
    profit.

[75]

As
    the application judge noted, the term commercial enterprise is not defined
    in, or for the purposes of, s. 286.2: at paras. 102-3. As he also noted, the
    Technical Paper comments on the meaning of commercial enterprise. It says
    this, at p. 5:

Although commercial enterprise is not defined, the phrase has
    been interpreted in sentencing cases under the
Controlled Drugs and
    Substances Act
. Courts apply a contextual analysis to determine whether a
    particular enterprise is commercial in nature which provides flexibility to the
    courts to find different types of enterprises, including informal ones, to be
    commercial.
In the context of [the PCEPA], a
    commercial enterprise necessarily involves third party profiteering.
Courts would likely take into account considerations such as the number of
    persons involved, the duration of the activities and the level of organization
    surrounding the activities.
The only type of enterprise
    that this phrase cannot capture is one involving individuals who sell their own
    sexual services, whether independently or cooperatively
, from a
    particular location or from different locations. [The PCEPA] does not allow for
    prosecution in these circumstances [Emphasis added.]

[76]

The
    word profiteering used in the Technical Paper does not simply mean profits
    from. It has a pejorative sense. The
Oxford Canadian Dictionary
, 2nd
    ed. (Toronto: Oxford University Press, 2006)

defines profiteering as
    make or seek to make excessive profits, esp. illegally or in black market
    conditions. In this context, the word correctly captures that a commercial
    enterprise in s. 286.2(5)(e) necessarily involves the making of a profit
    derived from third party exploitation of the sex worker. In other words, it
    involves the making of a profit from the commodification of sexual activity by
    a third party.

[77]

This
    interpretation finds support when the words commercial enterprise are
    considered in the context of s. 286.2 as a whole. In enacting the PCEPA, Parliament
    carefully crafted exceptions to the offences in ss. 286.2(1) and (2) to ensure
    that criminal liability would not result where there was not an exploitative
    relationship. As Minister MacKay said, Legislated exceptions clarify that the
    [material benefit] offence does not apply to non-exploitative relationships: House
    of Commons,
Debates (Hansard)
, 41st Parl., 2nd Sess., Vol. 147, No.
    101 (11 June 2014), at p. 6654. The Technical Paper explains that the
    exceptions in ss. 286.2(5)(a) through (d) remove the availability of the
    exceptions in s. 286.2(4) if any exploitative circumstance develops. Section
    286.2(5)(e) shares that purpose. It removes the availability of the exceptions
    if a third party commodifies and commercializes anothers sexual activity,
    e.g., as Minister MacKay explained at p. 6654, when the person received the
    benefit in the context of a brothel. Similarly, Parliamentary Secretary Bob
    Dechert said this in reference to s. 286.2(5)(e) in the course of the
    parliamentary debates:

The bill would also criminalize where a person procures another
    persons prostitution or if the benefit is received
in
    the context of a commercial enterprise that offers sexual services for sale,
    such as a strip club, a massage parlour, or an escort agency in which
    prostitution takes place.

We know those types of
    businesses are often run by criminal organizations, such as gangs and the
    Mafia. That is the kind of behaviour we want to criminalize.
It is not
    what the women who are exploited are doing, but the people who are actually
    exploiting them. [Emphasis added.] (House of Commons,
Debates (Hansard)
,
    41st Parl., 2nd Sess., Vol. 147, No. 102 (12 June 2014), at p. 6756).

[78]

This
    interpretation is also consistent with the scheme of the PCEPA, the objects of
    the PCEPA and the intention of Parliament.

[79]

The
    cooperative sharing of security in the hypothetical does not involve third
    party exploitation of the sex workers by the commodification of their sexual
    services. The sex worker controls the sale of her own sexual services. The
    third parties who receive a financial benefit from providing the security
    services do not exploit the sex workers (assuming that they provide the
    services in compliance with ss. 286.2(4)(c) or (d) and the exceptions in s.
    286.2(5)(a) through (d) do not remove the availability of those exceptions.)
    And, in the hypothetical, the sex workers do not exploit each other.

[80]

My
    interpretation of commercial enterprise is dispositive of the respondents
    constitutional challenge to s. 286.2. I conclude that the hypothetical sex
    workers right to security of the person under s. 7 is not engaged because 
    contrary to the application judges conclusion  she can obtain security
    services on a shared, cooperative basis. The sex workers liberty interest is
    not engaged because she has not committed an offence under s. 286.2.

[81]

I
    will add this regarding the application judges interpretation of the immunity
    provision in s. 286.5(1). Section 286.5(1) provides immunity if the benefit is
    derived from the provision of a persons own sexual services. The application
    judge concluded that each sex worker did not qualify for immunity under s.
    285.5(1)(a) and (2) because each sex worker would be receiving a benefit which
    is not derived from the provisions of their own sexual services: at para. 110.

[82]

I
    do not agree. If the cooperative arrangement were a commercial enterprise
    (and in my view it is not), properly construed, s. 286.5(1) would provide
    immunity to the sex worker who receives security services through a cooperative
    arrangement. To receive the benefit  the shared security service  the sex
    worker must pay her share of the cost. Presumably, the funds to pay for the
    shared security service are derived from the provision of the sex workers own
    sexual services. Thus, the benefit is derived from the provision of the sex
    workers own sexual services.

[83]

This
    interpretation is consistent with the purpose of s. 286.5. As Minister MacKay
    stated, the PCEPA recognizes the vulnerability of those who sell their own
    sexual services by immunizing them from prosecution for any part they may play
    in the purchasing, material benefit, procuring, or advertising offences
    vis-à-vis their own sexual services: House of Commons,
Debates (Hansard)
,
    41st Parl., 2nd Sess., Vol. 147, No. 101 (11 June 2014), at p. 6654. And as the
    Technical Paper notes, the immunities provided for in s. 286.5 mean that
    individuals cannot be prosecuted for selling their own sexual services, whether
    independently
or cooperatively
, from fixed indoor
    or other locations, as long as the only benefit received is derived from the
    sale of their own sexual services (emphasis added).

[84]

Ms.
    Nathalie Levman, Counsel in the Criminal Law Policy Section at the Department
    of Justice, echoed this intention. Answering questions from opposition MPs at
    the House Standing Committee on Justice and Human Rights, Ms. Levman responded
    as follows:

You're talking about working cooperatively together whereby the
    only benefit received results from the sale of one's own sexual services. The
    answer is that Bill C-36 does not criminalize that scenario.



I think we have to be careful to read the bill with all of its
    component parts. We have a legislative exception that would apply to a person
    who offers, let's say, protective services. If people were working
    cooperatively together and they all contributed a portion towards the
    protective services that were provided, at a fair value, and that person wasn't
    at all involved in the prostitution other than acting as a body guard, Bill
    C-36 would not apply to that scenario.

(House of Commons, Standing Committee on Justice and Human
    Rights,
Evidence
, 41st Parl., 2nd Sess., No. 32 (7 July 2014), at p.
    16.)

[85]

I
    turn next to the challenge under s. 7 to the procuring provision.


VII.

SECTION
    286.3 (PROCURING)

The application judges reasons

[86]

The
    application judge described the goal of s. 286.3
[9]
as to prohibit third parties who make money from commercial sex work from
    being involved: at para. 159.

[87]

He
    concluded that both the students and the experienced sex worker who provides
    advice on how to set up, advertise and conduct oneself could be prosecuted
    under s. 286.3(1). While the hypotheticals do not clearly indicate the
    requisite
mens rea
, the application judge inferred that it had been
    met. The liberty of the students was therefore infringed because they are
    subject to prosecution for procuring. Their respective security of the person had
    also been infringed for two reasons: first, because the inability to receive
    advice from an experienced sex worker who is not acting in an exploitative
    manner compromises their ability to protect themselves from danger, and;
    second, because the joint use of an accommodation by multiple sex workers for
    their own protection and safety is prohibited.

[88]

Further,
    the provision infringed s. 7: it is overbroad and its impact grossly
    disproportionate. It was overbroad because one of the objectives is to protect
    sex workers from violence, abuse and exploitation and it limits or prevents
    some means of protection and safety for some, if not all, sex workers. The
    application judge concluded that this and the other impugned provisions were
    disproportionate to the provisions objective because their effect of
    preventing sex workers from taking measures that would increase their safety,
    and possibly save their lives, outweigh[ed] the laws positive effect of
    protecting sex workers from exploitative relationships and the objective of
    Parliament to decrease or eliminate commercial sex work: at para. 71.

Mr. Boodhoos hypotheticals

[89]

Deshon Boodhoo was granted leave to intervene on
    this appeal:
R. v. N.S.
(5 November 2021),
    M52912. He was convicted under ss. 286.2(2) and 286.3(2). These are largely the
    same as ss. 286.2(1) and 286.3(1), except that they pertain to persons under
    the age of 18 years. He was also convicted under s. 286.4. Because of the
    overlap in the constitutional issues raised, his appeal was to be heard
    together with this appeal. This appeal was ordered expedited after a stay was
    entered, however, and Mr. Boodhoos appeal could not be argued on that
    expedited timetable.

[90]

One of the hypotheticals Mr. Boodhoo proposed involves
    a person already providing sexual services for consideration reaching out to
    a young friend who is homeless and surviving by panhandling and pick pocketing.
    She proposes that her young, homeless friend engage in the provision of sexual
    services for consideration, and that they rent an apartment, share expenses and
    work together. She is having difficulty paying for her apartment on her own. If
    she loses it, she will be forced to return to riskier forms of prostitution.
    The hypothetical also posits that providing sexual services for consideration,
    living in an apartment and working in a cooperative fashion, is a safer option
    for the young, homeless friend. The young homeless friend accepts the offer and
    begins selling her sexual services for consideration.

Whether s. 7 is engaged

[91]

I
    agree with the Crown that the application judge interpreted the scope of the
    procuring provision too broadly. As I will explain below, properly interpreted,
    s. 286.3 does not prohibit the students from working cooperatively in the
    manner described in Hypothetical 2 or leasing a room to the third student in Hypothetical
    4. Nor does it prohibit the hypothetical sex worker who was sought out to
    provide advice from providing advice, without compensation, to students who had
    already decided to engage in the provision of sexual services for consideration
    on how best to do so. Thus, the students liberty and security interests would
    not be engaged.

[92]

I
    do agree with counsel for Mr. Boodhoo, however, that the conduct in his
    hypothetical would offend the procuring provision. The liberty interest of the
    person who proposed that her young homeless friend engage in prostitution is
    engaged: she is liable to imprisonment, if convicted of procuring.

[93]

On
    this hypothetical, it is not clear that her security of the person interest is
    also engaged. She cannot afford her apartment because she does not earn enough
    income. It is not clear that the link between her inability to pay rent and the
    impugned law prohibiting procuring constitutes a sufficient causal connection,
    as required by
Bedford
, at para. 75. Nor is it clear how the provision
    engages the security of the person interest of the young vulnerable person. As
    noted above and as further explored below, there is nothing in the PCEPA that
    prevents her from joining cooperatively with others selling their own sexual
    services, or from approaching someone more experienced for advice. I doubt
    whether the assertion in the hypothetical that she did not believe she had any
    other options can meet the threshold set out in
Bedford
.

[94]

Assuming,
    however, without determining, that their security of the person is engaged, I
    reject Mr. Boodhoos argument, and the application judges conclusion, that the
    procuring provision is contrary to the principles of fundamental justice
    because it is overbroad and its impact grossly disproportionate.

[95]

Below,
    I first address the scope of s. 286.3. Then I explain why the procuring
    provision does not violate s. 7.

The scope of s. 286.3

[96]

As
    this court explained in
Gallone
, at para. 59, there are two modes of
    committing the
actus reus
of the procuring offence:

1.

The accused person procures a person to offer or provide sexual
    services for consideration; or

2.

The accused recruits, holds, conceals or harbours a person who offers
    or provides sexual services for consideration, or exercises control, direction
    or influence over the movements of that person.

[97]

Procuring
    means to cause, or to induce, or to have a persuasive effect on the conduct
    that is alleged:
Gallone
, at para. 61.

[98]

To
    prove
mens rea
for the first mode, the Crown must prove that the
    accused intended to procure a person to offer or provide sexual services for
    consideration.

[99]

For
    the second mode, the Crown must prove that the accused intended to do anything
    that satisfies the
actus reus
for this mode in relation to the person
    who offers or provides sexual services for consideration,
and
that the accused acted with
the
    purpose
of facilitating an offence under s. 286.1(1):
Gallone
,
    at para. 63.

[100]

A purpose
    requirement imposes a high specific intent
mens rea
:
R. v.
    Khawaja
, 2012 SCC 69, [2012] 3 S.C.R. 555, at paras. 45-47;
R. v.
    Legare
, 2009 SCC 56, [2009] 3 S.C.R. 551, at paras. 32-33;
R. v.
    Joseph
, 2020 ONCA 733, 153 O.R. (3d) 145, at para. 88. More than knowing
    facilitation is required: the accused must specifically intend his actions to
    have the effect of facilitating the offence:
Khawaja
, at para. 46;
R.
    v. Briscoe
, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 16-18;
Joseph
,
    at para. 88. The intention of the accused must be determined subjectively:
Legare
,
    at paras. 32, 35.

[101]

Turning first to the
    students in the hypotheticals before the application judge, the application
    judge found that they committed the second mode of the
actus reus
of
    the procuring offence: by assisting each other in conducting commercial sex, in
    assisting in advertising, in obtaining clients and in providing accommodation
    to conduct commercial sex work, each concealed, harboured and exercised
    control, direction and influence. Further, each did so for the purpose of
    facilitating commercial sex work.

[102]

The application judge
    did not explain how the students conduct constituted concealing, harbouring or
    exercising control, direction or influence, within the meaning of those terms
    in s. 286.3. I do not understand how, on the hypotheticals before him, the students
    concealed one another. On my reading of the hypotheticals, the students did
    not hide one another.

[103]

Nor is it clear that
    the students harboured each other, within the meaning of that term in s. 286.3.
    In
R. v. Joseph
, at para. 86, this court clarified that harbour
    includes the provision of shelter, whether secretly or not. In
Joseph
,
    the accused arranged for the complainants to sell sexual services from his
    apartment. The court did not consider whether two persons leasing premises
    together that both will use to sell their sexual services (Hypothetical 2) or
    leasing a room to a person who provides sexual services for consideration (Hypothetical
    4) constitutes harbouring. Arguably, in Hypothetical 2, each student secured
    her own shelter by joining in the lease for the apartment. And when, in Hypothetical
    4, the third student leased a room in the apartment from them, he similarly
    secured his own shelter. I note that in
R. v. Y.S.
, 2021 ONSC 4010, at
    para. 188, LeMay J. held that the accused did not harbour the complainant when
    he shared a hotel room with her for which she paid with her earnings from
    selling her sexual services. Further, given that legitimate rental arrangements
    are exempted from the material benefits offence, it would make little sense to
    find that they violated the procuring offence, which provides for a longer maximum
    term of imprisonment. This, however, is an issue for another day, with the
    benefit of full argument.

[104]

Exercising influence
    over a persons movements has been broadly defined and is less coercive than
    exercising control or direction. For that reason, I will focus on it. Exercising
    influence over a persons movements means doing anything to affect the
    persons movements. It includes anything done to induce, alter, sway or affect
    the will of the person. It is like proposing an idea and persuading the person
    to adopt it:
Gallone
, at para. 47.

[105]

In determining whether
    what each student did amounted to exercising influence over the movements of
    another student or students, the application judge was required to consider the
    nature of the relationship between them and the impact of the alleged
    influencing students conduct on the allegedly influenced student:
R. v.
    Ochrym
, 2021 ONCA 48, 69 C.R. (7th) 285, leave to appeal refd, [2021]
    S.C.C.A. No. 106. He did not do so, and, on these hypotheticals, it is not
    clear that what each student did amounted to exercising influence over the
    movements of another student.

[106]

Further, as noted
    above in para. 99, exercising influence is only an offence if the accused
    intended to exercise influence over the movements of the person who offers or
    provides sexual services for consideration. The hypotheticals are bereft of
    facts that support the inference that each of the students intended to exercise
    influence over the movements of the others.

[107]

The scope of all the
    conduct captured in the second mode of the
actus reus
of the procuring
    offence is significantly narrowed by their purpose requirement. As discussed
    above, the conduct captured in the second mode is only an offence if it is done
    for the purpose of facilitating an offence under s. 286.1. While earlier in his
    reasons, the application judge correctly identified this as the relevant
mens
    rea
, he later equated the purpose of facilitating commercial sex work
    with that of facilitating an offence under s. 286.1. Even if the students
    conduct constituted concealing, harbouring or exercising influence, and
    the students intended that conduct, the application judge erred by equating the
    purpose of facilitating commercial sex work with the purpose of facilitating
    an offence under s. 286.1. Facilitating an offence under s. 286.1 is narrower
    than facilitating commercial sex work.

[108]

The offence in s.
    286.1 is
obtaining
for consideration or
    communicating with anyone for the purpose of obtaining for consideration the
    sexual services of a person. The offence is not
providing
sexual services for consideration. The purpose requirement in s. 286.3 is
    therefore tied directly to the asymmetrical scheme of the PCEPA. The Crown must
    prove that the accused intended to assist the principal in the commission of the
    offence in s. 286.1:
Briscoe
, at para. 16.

[109]

If the students
    concealed or harboured each other, or exercised influence, the hypotheticals do
    not support a finding that they subjectively intended to assist a buyer in
    obtaining for consideration or communicating with anyone for the purpose of obtaining
    for consideration the sexual services of another of those students. Any
    concealing, harbouring or exercising influence was for the purpose of
    facilitating the sale by the student who was concealed, harboured or influenced
    of their own sexual services for consideration and not for facilitating the obtaining
    of their sexual services for consideration by others. This may seem like a fine
    point of logic, but it flows directly from the wording of s. 286.3 and the
    scheme of the PCEPA.

[110]

Turning to the
    advising sex worker in Hypothetical 2, the application judge concluded that providing
    advice on safety issues did not offend s. 286.3 because the purpose of the
    advice was not to facilitate an offence. He concluded, however, that in providing
    advice on how to set up, advertise and conduct oneself, the advising sex worker
    exercised control, direction or influence over the movements of the students and
    inferred that she did so for the purpose of facilitating commercial sex work.

[111]

Again, the application
    judge did not explain why he found that the conduct amounted to the exercise of
    control, direction or influence, taking into account the nature of the
    relationship between the students and the advisor. And, again, the application
    judge erred by equating facilitating commercial sex work with facilitating an
    offence under s. 286.1.

[112]

Here, if the provision
    of the advice amounted to the exercise of influence over the movements of the students,
    and it can be inferred from the nature of the actions and the knowledge of the
    advisor that she intended to exercise influence over their movements, it was not
    for the purpose of facilitating an offence under s. 286.1.

[113]

The scenario cannot
    support the inference that the advisor subjectively intended to assist the buyer
    in obtaining for consideration or communicating with any person for the purpose
    of obtaining for consideration the sexual services of a person. The advice was
    provided to the students for the purpose of facilitating the
sale
by them of their own sexual services for
    consideration  in particular, in the safest manner possible  and not to
    facilitate the
obtaining
of their sexual services
    for consideration by others.

[114]

The criminal law is
    familiar with asymmetrical offences, and trial judges are adept at inferring
    which side of the transaction an accused intended to facilitate:
R. v.
    Greyeyes
, [1997] 2 S.C.R. 825, at para. 8. Depending on the facts in a
    given case, a person may intend to assist the buyer, the seller or both. Each
    case will turn on the specific facts from which such an intention could be
    inferred. For example, consider someone who harbours another person who provides
    sexual services for consideration. He rents a hotel room, arranges for both
    buyer and seller to use it for the sale of sexual services, and expects to derive
    a financial benefit from the sale of sexual services. While the harbouring
    persons actions may incidentally benefit the seller, it is chiefly designed to
    assist the buyer, who is the prospective source of the financial benefit, and
    the harbouring person would be quite rightly subject to prosecution. The
    hypotheticals before the application judge do not contain sufficient facts to
    infer that intention.

[115]

Finally, turning to
    the woman in Mr. Boodhoos hypothetical who recruits her friend, as indicated
    above, I agree that she is guilty of procuring. She commits the first mode of
    the actus reus: she causes, induces or has a persuasive effect on her friend
    providing her sexual service for consideration. The mens rea for this first
    mode is also made out. On the hypothetical, she intended to procure her friend
    to offer or provide sexual services for consideration. Accordingly, I must go
    on to assess whether the deprivation of her liberty and security of the person violates
    s. 7.

Section 286.3 does not violate s. 7

[116]

As explained above,
    whether an impugned provision violates s. 7 requires identifying the
    provisions purpose.

[117]

The application judge
    said this, at para. 159, regarding the purpose of s. 286.3(1):

[It] denounces and prohibits the procuring and facilitating by
    third parties in commercial sex work. Its goal is to prohibit third parties
    who make money from commercial sex work from being involved.

[118]

Having determined the
    purpose of s. 286.3, however, he appears to have assessed overbreadth and gross
    disproportionality against what he viewed as one of the purposes of the PCEPA
    (to protect sex workers from violence, abuse and exploitation to protect the
    health and safety of sex workers), rather than against the objective of s. 286.3,
    as he was required to do. The application judge found that the procuring
    provision was overbroad because it limits or prevents some means of protection
    and safety for some, if not all sex workers, contrary to the goal of protecting
    their health and safety. Counsel for Mr. Boodhoo also rests his argument that
    the procuring provision is overbroad on his view that one of the objectives of
    the PCEPA is to protect sex workers.

[119]

While the purposes of
    the broader scheme can inform the purpose of an individual provision, a
    provision need not conform to each and every purpose of the statute. For
    example, in
R. v. Appulonappa
, 2015 SCC 59, [2015] 3 S.C.R. 754,
    although the
Immigration and Refugee Protection Act
, S.C. 2001, c. 27,
    had multiple purposes, the impugned provision was found to have only a single
    purpose. Similarly, in
Canada (Attorney General) v. PHS Community Services
    Society
, 2011 SCC 44, [2011] 3 S.C.R. 134, at para. 110, the Supreme Court
    held the
Controlled Drugs and Substances Act
, S.C. 1996, c. 19,

had
    two purposes: public health and public safety. In considering the individual
    provisions of the Act, however, McLachlin C.J. found that some provisions supported
    the public health objective, while others supported both public safety and
    public health. See also
R. v. Meads
, 2018 ONCA 146, at para. 32,
    in which Sharpe J.A. held that two provisions in the same section of the
Criminal
    Code
could have different purposes. Moreover, as explained earlier in
    these reasons, I would not characterize the safety-related objectives of the
    PCEPA in the same manner as the application judge.

[120]

I do not agree with Mr.
    Boodhoo that
R. v. Michaud
, 2015 ONCA 585, 127 O.R. (3d) 81, leave to
    appeal refd, [2015] S.C.C.A. No. 450, is of assistance here. In
Michaud
,
    Lauwers J.A. accepted the trial judges finding that one section of the
Highway
    Traffic Act
, R.S.O. 1990, c. H.8, had three purposes: reducing greenhouse
    gas emissions, reducing the severity of collisions, and preventing accidents.
    The expert evidence in that case established that the section did not, in some instances,
    prevent accidents, although it met the other two purposes. Lauwers J.A. held
    that on the reasoning of
Bedford
, the provision was overbroad because
    it did not fulfill one of its own three purposes. Here, in contrast, we are not
    dealing with a provision with multiple purposes.

[121]

I
    would characterize the purpose of s. 286.3 slightly differently from the
    application judge. I would describe its purpose as to denounce and prohibit the
    promotion of the prostitution of others in order to protect communities, human
    dignity and equality. Promoting prostitution encourages an activity that
    Parliament considers inherently exploitative. Section 286.3 gives effect to this
    purpose by prohibiting a wide range of conduct intended to procure a person to
    offer or provide sexual services for consideration and conduct engaged in for
    the purpose of facilitating an offence under s. 286.1(1).

[122]

The purpose of the procuring
    offence does not include giving effect to the safety-related objective of the
    PCEPA with respect to those who continue to sell their sexual services for
    consideration. This makes sense. The aim of s. 286.3 is to prohibit the
    promotion of the prostitution of
others
. Section
    286.3 is concerned with
their
safety by
    discouraging entry into and deterring participation in an activity that
    Parliament views as inherently exploitative and exposing risks of violence to
    those who engage in it.

[123]

As discussed above, the
    safety-related objective of the PCEPA with respect to those who continue to
    sell their sexual services for consideration is given effect by other
    provisions: in particular, the exceptions to the material benefit offence, the
    exceptions to the exceptions, and the provision of immunity from prosecution
    where the offence relates to the offering or provision of a persons own sexual
    services. This, as the preamble notes, is to encourage those who engage in
    prostitution to report incidents of violence and to leave prostitution. Section
    286.3 contains no such exception because it does not target the provision of a
    persons own sexual services, but targets those who promote the prostitution of
    others.

[124]

The procuring offence
    is not overbroad. The prohibited conduct  a wide range of conduct intended to
    procure a person to offer or provide sexual services for consideration or
    engaged in for the purpose of facilitating an offence under s. 286.1  is
    directly and rationally related to the purpose of the provision.

[125]

Nor is its impact on
    Mr. Boodhoos hypothetical procuring sex worker grossly disproportionate. The
    specific nature of the right interfered with, and the nature of that
    interference, are relevant to the gross disproportionality analysis. As to the
    hypothetical procuring sex workers liberty interest, as was the case in
R.
    v. Malmo-Levine
, 2003 SCC 74, [2003] 3 S.C.R. 571, her potential
    imprisonment falls within the broad latitude within which the Constitution
    permits legislative action: at para. 175.

[126]

Meanwhile, the security
    of the person interest advanced in Mr. Boodhoos hypothetical is that the
    procuring sex worker continues to engage in an illegal activity, but in a
    manner more dangerous to her. This harm is not grossly disproportionate to the
    objective of denouncing and prohibiting the promotion of that illegal activity.
    Recall that, as the preamble to the PCEPA illustrates, Parliament views prostitution
    as inherently exploitative, entailing risks of violence to those who engage in
    it, causing social harm by the objectification of the human body and
    commodification of sexual activity and an affront to human dignity. Given this,
    the alleged impact on the procured persons security of the person is even more
    justified.

[127]

The application judge
    found that s. 286.3 (and the other impugned provisions) were grossly
    disproportionate because, Parliament cannot allow sex work to continue and
    then grossly limit or prevent the sex workers ability to protect their
    security: at para. 178. He rejected the Crowns argument that conduct in
    relation to which a person enjoys immunity under s. 286.5 is unlawful and,
    therefore, this case is different from
Bedford
. In concluding that in
Bedford
there was a sufficient causal connection between the impugned provisions and
    the prejudice suffered to engage s. 7, McLachlin C.J. wrote, at para. 89, that,
    [t]he impugned laws deprive people engaged in a risky, but legal, activity of
    the means to protect themselves against those risks. The application judge
    characterized conduct in respect of which a person is immune from prosecution
    under s. 286.5 as statutorily allowed. He held, at para. 175, that the
    impugned provisions cannot make an
allowed
activity
    more dangerous (emphasis added). In so doing, he equated allowed activity to
    the lawful activity in
Bedford
.

[128]

It is clear that
    Parliament views prostitution in a fundamentally different way than it did
    prior to the enactment of the PCEPA. As this court said in
Gallone
, at
    para. 94, the immunity provision does not legalize the conduct in relation to
    which a person enjoys immunity under s. 286.5. It simply exempts persons from
    prosecution in relation to that conduct. Parliament could have, but did not,
    provide that the conduct that enjoys immunity from prosecution does not
    constitute an offence: see comments of Minister MacKay and Mr. Donald Piragoff
    (Senior Assistant Deputy Minister, Policy Sector, Department of Justice),
Proceedings
    of the Standing Senate Committee on Legal and Constitutional Affairs
, 41st
    Parl., 2nd Sess., No. 15 (9 September 2014), at pp. 12, 15-16, 25-26, and 36-37.

[129]

I acknowledge that in
PHS

Community Services
, McLachlin C.J., writing for the court, stated at
    para. 102 that [t]he morality of the activity the law regulates is irrelevant
    at the initial stage of determining whether the law engages a s. 7 right. Yet
    the application judge did not consider whether prostitution was illegal at the
    initial stage of determining whether the s. 7 rights of the students were
    engaged. He did so in his analysis of whether the impugned provisions were
    grossly disproportionate. The fact that an activity is unlawful is relevant in
    considering the weightiness of a provisions objective and whether an impugned
    provision deprives a person of the rights protected by s. 7 in a manner that is
    grossly disproportionate to that objective.

[130]

I will add this. The
    application judge accepted that research indicates individuals who provide
    sexual services for consideration are not necessarily exploited: while there
    are situations where sex workers are exploited by third parties, many sex
    workers reported a conscious decision to provide sexual services in the context
    of the socio-economic realities of their lives (at paras. 30 and 89). The
    evidence before the application judge stated that some sex workers cited
    factors such as the need for money, independence, flexibility, and the nature
    of the work.

[131]

Even accepting this
    evidence, it is clear from the preamble to the PCEPA and Minister MacKays
    description of prostitution as inherently degrading before the Senate
    Committee on Legal and Constitutional Affairs (at p. 12), that Parliament views
    prostitution as inherently exploitative, even where the person providing the
    sexual services for consideration made a conscious decision to do so.

VIII.

SECTION 286.4 (ADVERTISING)

The application judges reasons

[132]

The application judge
    found that post-PCEPA, the digital world is used more frequently to facilitate
    contact, communication and the providing of information. Sex workers who
    advertise in newspapers, online classifieds or on commercial sex work websites
    are more likely to communicate with potential clients before meeting in person:
    at paras. 89(j) and (k).

[133]

He further found that
    the effect of the prohibition on advertising in s. 286.4 was that sex workers
    who attempt to advertise must do so surreptitiously and use coded language. The
    evidence before him, and in
Bedford
, was that communication is
    critical to the safety and security of the sex worker. He found that the
    security of the students in the hypotheticals would be infringed by the
    inability of frank and detailed information and communication in their
    advertisement of the sexual services offered and expectations for such sexual
    services: at para. 121.

[134]

The application judge held
    that the provision was overbroad for the same reason as the procuring offence: Parliament
    had indicated that one of the objectives is to protect sex workers and the impugned
    provision limits or prevents some means of protection and safety for some, if
    not all, sex workers.

[135]

Further, its impact is
    grossly disproportionate. At para. 177, the application judge held that [t]he
    objective of eliminating or lessening commercial sex work through the banning
    of advertising cannot be made at the safety and security of commercial sex
    workers. Parliament cannot allow sex work to continue and then grossly limit
    or prevent sex workers ability to protect their safety.

Analysis

[136]

First, I review the
    evidence before the application judge, and what
Bedford
said on the
    issue of communication. Then I consider whether s. 7 is engaged. Next I consider
    the purpose of s. 286.4 and whether, having regard to that purpose, s. 286.4
    deprives the hypothetical sex worker of security of the person in a manner that
    is overbroad or grossly disproportionate.
[10]

The evidence before the application judge

[137]

The respondent relied
    on the evidence of Chris Atchison.
[11]
Mr. Atchison has a Masters in Criminology from Simon Fraser University and has
    published numerous academic articles and research studies on sex work in
    Canada. He was among those who provided testimony to the House of Commons and
    Senate standing committees on Bill C-36.
[12]


[138]

The application judge
    qualified Mr. Atchison to provide expert evidence on the field of social
    sciences research, theory and findings on the structure, operation and
    composition of commercial sex work in Canada and other jurisdictions and the
    legal regime concerning commercial sex work in Canada and other jurisdictions.

[139]

The application judge
    rejected the Crowns argument that Mr. Atchison was biased. He accepted that
    Mr. Atchisons evidence was not statistically based but found the evidence of
    Mr. Atchison credible and compelling.

[140]

Mr. Atchison testified
    that advertisement was a fundamental initial way for sex workers and people who
    owned and operated commercial sex establishments to clearly relay the
    boundaries and the services offered to prospective clientele. It sets the stage
    for the initial interaction between sex workers and prospective clients. The
    more capacity there is to exchange information, the less likely sex workers or
    their clients were to report that there was any form of conflict in their
    actual physical exchanges. Restricted capacity to communicate or unclear
    communications were frequently associated with higher levels of conflict.

[141]

According to Mr.
    Atchison, following the passage of the PCEPA, advertisement migrated to
    off-shore locations. Advertisements on third-party sites began using vague
    language in order not to be flagged or trigger a complaint and be taken down by
    site administrators: e.g., talking about 2 or 3 roses for a certain kind of
    date
[13]
,
    or saying safe only to mean that condoms must be used. He testified that
    there is empirical evidence that a lack of clarity between buyer and seller
    leads to physical conflict.

[142]

Mr. Atchison also
    agreed that through the ads the sellers make it possible for the buyers to
    contact them, in some forum  text, email, or phone call. Mr. Atchison
    testified that the average number of communications before a physical encounter
    was 4 to 4.2. It is open to the seller to disengage if they are not happy with
    the communications or are not getting sufficient information.

What
Bedford
said on the subject of communication

[143]

Recall that
Bedford
was not about advertising.
Bedford
was about the ability of
    prostitutes to communicate in public for the purpose of prostitution.

[144]

In
Bedford
,
    the application judge found that face-to-face communication was an essential
    tool in enhancing street prostitutes safety. Such communication allows
    prostitutes to screen prospective clients for intoxication or a propensity for violence,
    which can reduce the risks that they face. The Supreme Court agreed with the
    application judge, at para. 71, that this evidence engaged security of the
    person under s. 7:

By prohibiting communication in public for the purpose of
    prostitution, the law prevents prostitutes from screening clients and setting
    terms for the use of condoms or safe houses. In these ways, it significantly
    increases the risks they face.

[145]

As indicated above, in
    response to
Bedford
, Parliament also replaced the communicating
    offence in s. 213(1)(c) of the
Criminal Code
. Now, except for
    communications in public places that impede traffic or take place in or next to
    school grounds, playgrounds or day care centres, communications in public by a
    sex worker are no longer criminalized.

[146]

Further, a provider of
    her own sexual services for consideration who sends texts or emails to or
    phones a prospective client in follow up to a response to an advertisement for
    the provision of sexual services enjoys immunity from prosecution under s.
    286.5(2).

Is s. 7 engaged?

[147]

The evidence before
    the application judge was
not
, and the application
    judge did
not
find, that because advertising is
    unlawful, persons who previously advertised their provision of sexual services
    for consideration are instead resorting to attracting new clients by riskier means,
    such as in-person, street-level solicitations. Rather, the evidence was that
    they continue to advertise but employ vaguer language, depriving the
    hypothetical provider of sexual services of security of the person: at para.
    121.

[148]

Bedford
instructs that trivial impairments on security of the person do not engage s.
    7: at para. 91. While an advertisement which, up-front, clearly sets out the
    terms and conditions for the provision of sexual services, may reduce the need
    for, or improve, further communications between the provider and the
    prospective client, the provider necessarily communicates further with the
    prospective client before an in-person encounter. The prohibition on
    advertising does not affect the ability of the provider to communicate frankly
    and in a detailed manner before an in-person encounter. The provider benefits
    from immunity from prosecution under s. 286.5.

[149]

Mr. Atchisons
    evidence was that prospective purchasers of sexual services fear arrest, and
    that fear affects the effectiveness of the communications between the provider
    of the sexual services and the purchaser. Any vague language in subsequent
    texts, emails or phone calls between the provider and the prospective client
    presumably arises because of the prospective clients concern about liability
    under s. 286.1, and not because of the prohibition on advertising. As stated
    before, that section is not at issue on this appeal.
[14]

[150]

In any event, any
    impairment of security of the person because, as a result of s. 286.4, providers
    of sexual services for consideration use vaguer language in their
    advertisements is, on this record, trivial.

[151]

While that conclusion
    is dispositive in relation to the application judges finding, I will
    nonetheless address the application judges characterization of the purpose of
    s. 286.4 and his findings that the section is overbroad and its impact grossly
    disproportionate.

The purpose of s. 286.4

[152]

The application judge
    identified the objective, or one of the objectives, of s. 286.4 as
    eliminating or lessening commercial sex work. In my view, s. 286.4 has a single
    purpose: to reduce the demand for the provision of sexual services for
    consideration in order to protect communities, human dignity and equality.
    Other provisions, including those discussed earlier in these reasons, are
    animated by Parliaments safety-related objective in relation to those who
    continue to provide their sexual services for consideration.

Section 286.4 is not overbroad nor grossly disproportionate

[153]

In my view, s. 286.4
    is not overbroad. As noted above, a provision suffers from overbreadth when it
    is so broad in scope that it includes some conduct that bears no connection to
    its objective. The purpose of s. 286.4 is to reduce demand for unlawful conduct
     the provision of sexual services for consideration. The prohibited conduct 
    advertising  is directly and rationally connected to this objective. The
    purpose of advertising is to obtain clients, that is, to
increase
demand for an unlawful service. Advertising also promotes the objectification
    of the human body and the commodification of sexual activity: social harms
    identified by Parliament in the preamble to the PCEPA.

[154]

Nor is s. 286.4
    grossly disproportionate. This is not one of those extreme cases where the
    seriousness of the deprivation is totally out of sync with the objective of the
    measure:
Bedford
, at para. 120. The effects of s. 286.4 do not
    grossly outweigh its benefits. On this record, the prohibition on advertising
    does not prevent the provider from communicating frankly and in a detailed
    manner before an in-person encounter.


IX.

SECTION 2(b) OF THE
CHARTER

[155]

The application judge
    rejected the respondents argument that the advertising prohibition was an
    unjustified infringement of s. 2(b). He held that he was bound by this courts
    decision in
Bedford
, which held that the Supreme Court had
    definitively decided this issue in the
Prostitution Reference
and only
    that court may revisit it. Because of that decision, and the reasoning in the
Prostitution
    Reference
, he concluded that s. 286.4 is a reasonable limit, demonstrably
    justified in a free and democratic society.

[156]

The respondent renews his
    argument that s. 286.4 violates s. 2(b) of the
Charter
. The appellant
    properly concedes that the advertising provision engages the right to freedom
    of expression in s. 2(b) of the
Charter
. The issue is whether it is
    justified under s. 1 of the
Charter
.

[157]

The Supreme Court in
    the
Prostitution Reference
and this court in
Bedford
considered the prohibition on communicating in public in s. 213(1)(c) and not a
    prohibition on advertising. Further, the prohibition on communicating in public
    had a different purpose than s. 286.4. I agree with the application judge,
    however, that s. 286.4 is justified under s. 1 of the
Charter
. That
    conclusion is more readily compelled in this case than in the
Prostitution
    Reference
.

[158]

Section 1 provides:

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.

[159]

Reasonable limits on
    rights will be demonstrably justified when (a) they have a pressing and
    substantial objective and (b) the means chosen to advance the objective do not
    disproportionately limit the right. Proportionality requires that the means be
    rationally connected to the objective, be minimally impairing, and have benefits
    that outweigh their negative effects:
Carter v. Canada (Attorney General)
,
    2015 SCC 5, [2015] 1 S.C.R. 331, at para. 94.

[160]

The legislative
    objective of the prohibition on communicating in public accepted by Dickson
    C.J. in the
Prostitution Reference
and upheld in
Bedford
was
    to take solicitation for the purposes of prostitution off the streets and out
    of public view. The objective of s. 286.4 is more pressing and substantial.
    Obtaining sexual services for consideration is now unlawful. The purpose of s. 286.4
    is to reduce the demand for an unlawful activity.

[161]

Section 286.4
    addresses itself precisely to that objective by prohibiting advertising, which
    increases demand. It is therefore rationally connected to its objective.

[162]

The prohibition on
    advertising is reasonably tailored to the provisions objective of reducing the
    demand for the provision of sexual services for consideration in order to
    protect communities, human dignity and equality. It does not prevent providers
    of sexual services from communicating with prospective clients before an
    in-person encounter by text, email or phone. It cannot be said that the
    prohibition on advertising is unduly intrusive.

[163]

Finally, the
    provisions harms are not disproportionate to its benefits. As in the
Prostitution
    Reference
, the prohibited expression is directed at an economic interest.
    As Dickson C.J. stated in the
Prostitution Reference
, It can hardly
    be said that communications regarding an economic transaction of sex for money lie
    at, or even near, the core of the guarantee of freedom of expression. And the
    record does not establish serious harms: providers of sexual services for
    consideration continue to advertise and communicate with clients, and are
    protected by the immunity provisions. Meanwhile, Parliament has identified an
    array of serious social harms caused by prostitution, including harms to the
    community and exposure to children, which s. 286.4 aims to curb. There is no
    disproportionality here.


X.

SECTION 2(d) OF THE
CHARTER

[164]

The respondent renews
    his position on appeal that the material benefit, procuring and advertising
    provisions violate the right to freedom of association under s. 2(d). He relies
    on
Health Services and Support - Facilities Subsector Bargaining Assn v.
    British Columbia
, 2007 SCC 27, [2007] 2 S.C.R. 391, at para. 35:

Government measures that substantially interfere with the
    ability of individuals to associate with a view to promoting work-related
    interests violate the guarantee of freedom of association under s. 2(d) of the
Charter.


[165]

He argues that by
    criminalizing cooperative arrangements and the retention of third party
    advisors, the material benefit and procuring provisions substantially interfere
    with the ability of those who provide sexual services for consideration to
    associate with others with a view to promoting their work-related interests 
    in particular, the pursuit of improved personal and workplace health and
    safety. He further argues that s. 286.4 prevents persons who provide sexual
    services for consideration from associating with those who assist with
    advertising, which could ensure clear communications with prospective clients.

[166]

I reject these
    arguments.

[167]

This case is very
    different from
Health Services
.
Health Services
held that s. 2(d)
    protects collective bargaining rights. Accordingly, provisions in the British
    Columbia law that gave health care employers greater flexibility to organize
    their relationships with their employees in a way that invalidated provisions
    of a collective bargaining agreement and precluded meaningful collective
    bargaining on a number of issues violated s. 2(d).

[168]

This case is not about
    unionized employees and the impact on collective bargaining; nor is it about
    persons engaging in lawful work. It is about persons who are providing sexual
    service for consideration, contrary to law. In adopting a variant of the Nordic
    model, Parliament rejected an approach that would characterize persons who
    provide sexual services for consideration as workers and prostitution as
    legal sex work.

[169]

Moreover, s. 2(d) will
    only be infringed where the state precludes activity because of its
    associational nature:
Harper v. Canada (Attorney General)
, 2004 SCC
    33, [2004] 1 S.C.R. 827, at para. 125. Only the associational aspect of the
    activity is protected. The PCEPA does not prevent individuals from joining or
    forming an association in the pursuit of a
collective
goal. Rather, it precludes both individuals and groups from undertaking certain
    activities, subject to the exceptions and immunities already described in these
    reasons.


XI.

DISPOSITION

[170]

For these reasons, I
    would allow the appeal, set aside the respondents acquittals, and order a new
    trial.

Released: February 24, 2022 A.H.

Alexandra Hoy J.A.

I agree. S. Coroza
    J.A.

I agree. Sossin
    J.A.


APPENDIX A

Commodification of Sexual Activity

Obtaining sexual services for consideration

286.1 (1)
Everyone who, in any place, obtains for
    consideration, or communicates with anyone for the purpose of obtaining for
    consideration, the sexual services of a person is guilty of

(a)
an indictable offence and liable to imprisonment
    for a term of not more than five years and a minimum punishment of,

(i)
in the case where the offence is committed in a
    public place, or in any place open to public view, that is or is next to a park
    or the grounds of a school or religious institution or that is or is next to
    any other place where persons under the age of 18 can reasonably be expected to
    be present,

(A)
for a first offence, a fine of $2,000, and

(B)
for each subsequent offence, a fine
    of $4,000, or

(ii)
in any other case,

(A)
for a first offence, a fine of $1,000, and

(B)
for each subsequent offence, a fine
    of $2,000; or

(b)
an offence punishable on summary conviction and
    liable to a fine of not more than $5,000 or to imprisonment for a term of not
    more than two years less a day, or to both, and to a minimum punishment of,

(i)
in the case referred to in subparagraph (a)(i),

(A)
for a first offence, a fine of $1,000, and

(B)
for each subsequent offence, a fine of $2,000, or

(ii)
in any other case,

(A)
for a first offence, a fine of $500, and

(B)
for each subsequent offence, a fine
    of $1,000.

Obtaining sexual services for consideration
    from person under 18 years

(2)
Everyone who, in any place, obtains for consideration, or communicates
    with anyone for the purpose of obtaining for consideration, the sexual services
    of a person under the age of 18 years is guilty of an indictable offence and
    liable to imprisonment for a term of not more than 10 years and to a minimum
    punishment of imprisonment for a term of

(a)
for a first offence, six months; and

(b)
for each subsequent offence, one year.

Subsequent offences

(3)
In determining, for the purpose of subsection (2), whether a convicted
    person has committed a subsequent offence, if the person was earlier convicted
    of any of the following offences, that offence is to be considered as an
    earlier offence:

(a)
an offence under that subsection; or

(b)
an offence under subsection 212(4) of this Act, as
    it read from time to time before the day on which this subsection comes into
    force.

Sequence of convictions only

(4)
In determining, for the purposes of this section, whether a convicted
    person has committed a subsequent offence, the only question to be considered
    is the sequence of convictions and no consideration shall be given to the
    sequence of commission of offences, whether any offence occurred before or
    after any conviction or whether offences were prosecuted by indictment or by
    way of summary conviction proceedings.

Definitions of
    place and public place

(5)
For the purposes of this section, place and public place have the same
    meaning as in subsection 197(1).

Material benefit from sexual services

286.2 (1)
Every person who
    receives a financial or other material benefit, knowing that it is obtained by
    or derived directly or indirectly from the commission of an offence under
    subsection 286.1(1), is guilty of

(a)
an indictable offence
    and liable to imprisonment for a term of not more than 10 years; or

(b)
an offence punishable on
    summary conviction.

Presumption

(3)
For the purposes of
    subsections (1) and (2), evidence that a person lives with or is habitually in
    the company of a person who offers or provides sexual services for
    consideration is, in the absence of evidence to the contrary, proof that the
    person received a financial or other material benefit from those services.

Exception

(4)
Subject to subsection (5),
    subsections (1) and (2) do not apply to a person who receives the benefit

(a)
in the context of a
    legitimate living arrangement with the person from whose sexual services the
    benefit is derived;

(b)
as a result of a legal
    or moral obligation of the person from whose sexual services the benefit is
    derived;

(c)
in consideration for a
    service or good that they offer, on the same terms and conditions, to the
    general public; or

(d)
in consideration for a
    service or good that they do not offer to the general public but that they
    offered or provided to the person from whose sexual services the benefit is
    derived, if they did not counsel or encourage that person to provide sexual
    services and the benefit is proportionate to the value of the service or good.

No exception

(5)
Subsection (4) does not
    apply to a person who commits an offence under subsection (1) or (2) if that
    person

(a)
used, threatened to use
    or attempted to use violence, intimidation or coercion in relation to the
    person from whose sexual services the benefit is derived;

(b)
abused a position of
    trust, power or authority in relation to the person from whose sexual services
    the benefit is derived;

(c)
provided a drug, alcohol
    or any other intoxicating substance to the person from whose sexual services
    the benefit is derived for the purpose of aiding or abetting that person to
    offer or provide sexual services for consideration;

(d)
engaged in conduct, in
    relation to any person, that would constitute an offence under
    section 286.3; or

(e)
received the benefit in
    the context of a commercial enterprise that offers sexual services for
    consideration.

Procuring

286.3

(1)
Everyone
    who procures a person to offer or provide sexual services for consideration or,
    for the purpose of facilitating an offence under subsection 286.1(1),
    recruits, holds, conceals or harbours a person who offers or provides sexual
    services for consideration, or exercises control, direction or influence over
    the movements of that person, is guilty of an indictable offence and liable to
    imprisonment for a term of not more than 14 years.

Advertising sexual services

286.4
Everyone who knowingly
    advertises an offer to provide sexual services for consideration is guilty of

(a)
an indictable offence
    and liable to imprisonment for a term of not more than five years; or

(b)
an offence punishable on
    summary conviction.

Immunity  material benefit and advertising

286.5

(1)
No
    person shall be prosecuted for

(a)
an offence under
    section 286.2 if the benefit is derived from the provision of their own
    sexual services; or

(b)
an offence under
    section 286.4 in relation to the advertisement of their own sexual
    services.

Immunity  aiding, abetting, etc.

(2)
No person shall be
    prosecuted for aiding, abetting, conspiring or attempting to commit an offence
    under any of sections 286.1 to 286.4 or being an accessory after the
    fact or counselling a person to be a party to such an offence, if the offence
    relates to the offering or provision of their own sexual services.





[1]
R.S.C. 1985, c. C-46.



[2]

The Supreme Court used the term prostitutes in
Bedford
.
    The new legislation refers to someone who provides sexual services for
    consideration in the body but refers to prostitution in the preamble. The
    application judge used the term sex worker. I will use the terms that
Bedford
used when discussing
Bedford
, the terms used in the legislation
    where appropriate and the terms the application judge used when discussing his
    reasons.



[3]

Section 286.1(2) creates a separate offence, with more severe
    punishment, in the case of the sexual services of a person under the age of 18
    years.



[4]
The Canadian Alliance for Sex Work Law Reform (a coalition of 25 sex workers
    rights organizations), a number of current and former sex workers, and Tiffany
    Anwar were granted leave to intervene on this appeal:
R. v. N.S.
, 2021
    ONCA 605. Ms. Anwar ran an escort agency and was charged with offences under
    ss. 286.2(1), 286.3(1), and 286.4 of the
Criminal
    Code
. She was acquitted in 2020 after McKay J. found the provisions to
    be unconstitutional:
R. v. Anwar
,
    2020 ONCJ 103, 62 C.R. (7th) 402. Although they were represented by different
    counsel, these interveners delivered a joint factum and Mr. Lockyer and Mr. Rosenberg
    made oral submissions on behalf of them all. These interveners offer the
    perspective of a subset of those who provide sexual services for consideration
    as a freely chosen occupation: sex workers. The heart of their submission is
    that the premise underlying the PCEPA  that exploitation is inherent in
    prostitution  is flawed and not supported by the evidence; the Nordic model is
    not effective; and, by criminalizing prostitution, the PCEPA subjects sex
    workers to danger and violates their rights under s. 7 of the
Charter
. These are issues for another
    day.



[5]

Section 286.2(2) creates a separate offence, with more severe
    punishment, in the case of a material benefit derived directly or indirectly
    from the commission of an offence under s. 286.1(2).



[6]

Section 286.3(2) creates a separate offence, with more severe
    punishment, for procuring a person under the age of 18 years.



[7]
2012 ONCA 186, 128 O.R. (3d) 385
. In
Bedford
, the
    Supreme Court did not consider whether it could depart from its s. 2(b) conclusion
    in the
Prostitution Reference
because it resolved the appeal on s. 7
    grounds.



[8]
As discussed below,
Deshon Boodhoo was also granted leave to
    intervene on this appeal and proposed hypotheticals for the courts
    consideration. One involves persons working in a cooperative arrangement. It
    does not differ from the respondents hypothetical in any material respect.
    Accordingly, I do not address it in these reasons.



[9]
I
n his reasons, the application judge refers to s. 286.2(3). I
    have assumed that this is a typo, and his intended reference was to s. 286.3 as
    the phrase in which the quoted passage appears addresses procuring.



[10]
Hypothetical 2 before the application judge involved the students retaining the
    services of a website designer. Because the hypothetical did not state that the
    website was jointly used by the students, he concluded that the students would
    enjoy the immunity under s. 286.5. The respondent takes no issue with that
    conclusion. Mr. Boodhoos hypothetical raises the possibility of the two
    cooperating sex workers being caught by the advertising provision for
    advertising together, such that they could not benefit from the immunity for
    advertising their own sexual services. Hypotheticals must contain sufficient
    details to permit the court to properly analyze the constitutional claim. In
    the absence of further details, I decline to address this issue further. Simply
    stating that the sex workers are advertising together is not sufficient for
    this purpose.



[11]

Much of Mr. Atchisons evidence addressed the impact of the
    criminalization of obtaining sexual services for consideration, which is not an
    issue on this appeal.



[12]

Mr. Atchison was among those who opposed the Nordic Model. See
    House of Commons, Standing Committee on Justice and Human Rights,
Evidence
,
    41st Parl., 2nd Sess., No. 39 (9 July 2014) at pp. 2-4 (Chris Atchison).



[13]
Mr. Atchison said that three hearts would mean $300.
Some of
    the sample advertisements in the record are less opaque. They refer to 200 or
    300 roses, and, in the context, mean $200 or $300.



[14]

The Alliance also argues that sex workers ability to consent
    to sexual activity, and therefore their personal autonomy, is compromised by
    their need to use vague language in advertisements and clients use of vague
    language in communications with the sex worker. The Alliances argument about
    the consequences of the use of vague language in the advertisements is
    addressed above. Its argument that s. 286.1 impairs sex workers right to
    consent to sexual activity is for another day.


