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

Page: 104(6) Is the living on the avails provision a reasonable limit under s. 1 ofthe Charter?[256] As with the bawdy-house provisions, we conclude that s. 212(1)(j) cannotbe justified as a reasonable limit under s. 1 of the Charter because it isoverbroad, and its effects are grossly disproportionate to its objectives.(7) What is the appropriate remedy to address the s. 7 breach?[257] The living on the avails provision presents a more complex problem ofremedy than do the bawdy-house provisions. Unlike those provisions, thepurpose of s. 212(1)(j) is to offer some protection to prostitutes. While itcriminalizes conduct, it does so to protect persons engaged in prostitution. If theprovision is struck down, this protection will be lost. While other provisions ins. 212 cover much of the pernicious conduct involving the exploitation ofprostitutes, those provisions do not cover all conduct that puts the prostitute‟swell-being at risk and that fairly come within the avails provision‟s objective: see,for example: R. v. Foster (1984), 54 A.R. 372 (C.A.); R. v. Boston, [1988] B.C.J.No. 1185 (C.A.); R. v. Vance, 2004 SKCA 77, [2004] S.J. No. 341 (C.A.).[258] Further, striking down the living on the avails provision would neutralize thepresumption in s. 212(3), since that presumption only applies to the living on theavails offence. It must be remembered that in Downey, at p. 37, the SupremeCourt found that the presumption played an important role in the successfulprosecution of pimps: