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

Page: 105From a review of Committee Reports and the currentliterature pertaining to the problem it is obvious that thesection is attempting to deal with a cruel and pervasivesocial evil. The pimp personifies abusive andexploitative malevolence.[259] As worded, however, the living on the avails offence targets anyone withan economic stake in the earnings of the prostitute, even persons who offer nothreat to the prostitute‟s economic or physical well-being. We have alreadydiscussed the interpretive exercise in which courts have engaged, outside theCharter, in order to narrow the scope of the provision, and we have explainedwhy, in our view, the interpretive exercise is exhausted.[260] The question then becomes what is the appropriate remedy and, inparticular, whether a remedy short of striking down the provision is appropriate.[261] As is well known, s. 52 of the Constitution Act, 1982, instructs the court todeclare a provision of no force “to the extent of the inconsistency”. The SupremeCourt has held that s. 52 authorizes a court to adopt remedies of reading in andseverance rather than striking down challenged legislation. The courts have usedreading in and severance where, as here, striking down would deprive vulnerablegroups of the protection offered by the legislation.[262] As explained in Schachter, the purpose of reading in and severance is toavoid undue intrusion into the legislative sphere, while also respecting thepurposes of the Charter.