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

Page: 122attributable on the evidence to the challenged provision. In other words, thecourt must evaluate the evidence and identify the degree to which the legislationcreates or contributes to the infringement of the claimant‟s s. 7 rights. Theevidence will dictate the precision with which a connection can be drawnbetween the harm and the challenged legislation. In some cases, the evidencewill show that the legislation is the sole or the principal cause of that harm. Inother cases, the evidence will demonstrate that the legislation is but one ofseveral causes of the harm, and that the degree to which the legislation isresponsible for the harm cannot be determined.[305] In this case, the application judge erred by placing too little weight on the“legislative objective” factor, and too much weight on the “impact” factor. Thisresulted in a skewed gross disproportionality analysis. We will discuss eacherror in turn.(a) The application judge under-emphasized the importance ofthe legislative objective of the communicating provision[306] In our view, the application judge substantially understated the objective ofthe communicating provision when she described its object as targeting “noise,street congestion, and the possibility that the practice of prostitution will interferewith those nearby”. This appears to locate street prostitution towards the low endof the social nuisance spectrum.That is not an accurate reflection of theevidence.