Canada (Attorney General) v. Bedford, 2012 ONCA ... - York University

Page: 103(5) Is the living on the avails provision grossly disproportionate?[253] The application judge found that s. 212(1)(j) is grossly disproportionatebecause it prevents prostitutes from hiring bodyguards, drivers, or others whocould keep them safe, and may actually increase the likelihood that prostituteswill be exploited by forcing them to seek protection from those who are willing torisk a charge under this provision.[254] We agree with this analysis. If the living on the avails provision werenarrowly tailored to target pimps or others who exploit prostitutes, it could passconstitutional muster.But the section does not simply target pimps, and itseffects reach the safety and security of prostitutes. The state response is out ofall proportion to the state objectives. While the provision is ostensibly aimed atprotecting prostitutes from harm, it prevents them from taking measures thatcould reduce harm and at worst drives them into the hands of the very predatorsthat the law intends to guard against.[255] The living on the avails provision is the sole section under consideration inthis appeal that has the protection of prostitutes as its objective. That part of itseffect may be to increase the risk of harm to prostitutes falls comfortably withinthe concept of per se disproportionality.