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

Page: 118[291] We agree with the application judge that the communicating provision isnot overbroad.(5) Is the communicating provision grossly disproportionate?[292] The application judge concluded that the communicating provision offendsthe principle against gross disproportionality.Applying the framework fromMalmo-Levine, she considered, first, whether the provision pursues a legitimatestate interest, and second, whether the effects of the law are so extreme thatthey are per se disproportionate to that interest.[293] On the first point, the application judge accepted, at para. 418, that theprovision reflects the legitimate state interest of curbing the social nuisanceassociated with public solicitation for the purpose of prostitution. In particular, thelaw seeks to target problems including traffic congestion, noise, harassment ofpersons in the area, and the harmful effect of the open display of prostitution onbystanders, including children.[294] On the second point, the application judge reiterated her earlier findingsthat prostitutes – particularly street prostitutes – face a high risk of physicalviolence, that taking the time to screen customers for intoxication and propensityfor violence can increase safety, and that the communicating provision canincrease the vulnerability of street prostitutes by “forcing them to foregoscreening customers at an early and crucial stage of the transaction”.