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

Page: 119[295] Weighing these factors together, the application judge held, at para. 433:The nuisance targeted by the communicating provisionincludes noise, street congestion, and the possibilitythat the practice of prostitution will interfere with thosenearby. These objectives are to be balanced against thefact that the provision forces prostitutes to foregoscreening clients which I found to be an essential tool toenhance their safety.[296] The application judge proceeded to analogize the impact of thecommunicating provision on street prostitutes to the impact of the denial of theministerial exemption on drug addicts in PHS. She held, at para. 434:In [PHS], Rowles J.A. for the majority, held that:The effect of the application of the [CDSA]provisions on Insite would deny personswith a very serious and chronic illnessaccess to necessary health care and wouldcome without any ameliorating benefit tothose persons or to society at large.Indeed, application of those provisions toInsite would have the effect of putting thelarger society at risk on matters of publichealth with its attendant human andeconomic cost.Similarly, in this case, one effect of the communicatingprovision (as well as the bawdy-house provisions) is toendanger prostitutes while providing little benefit tocommunities. In fact, by putting prostitutes at greaterrisk of violence, these sections have the effect of puttingthe larger society at risk on matters of public health andsafety. The harm suffered by prostitutes carries with it agreat cost to families, law enforcement, andcommunities and impacts upon the well-being of thelarger society. In my view, the effects of thecommunicating provision are grossly disproportionate tothe goal of combating social nuisance.