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

Page: 128prostitution is much safer than street prostitution. In light of this prohibition, itseemed particularly egregious to deny prostitutes the opportunity to takepotentially safety-enhancing measures when out on the street. But the groundhas now shifted. This court has concluded that the bawdy-house prohibition isunconstitutional, which gives prostitutes the ability to move indoors.[318] We acknowledge that not all street prostitutes can, or will, avail themselvesof this option.The evidence before the application judge suggested thatapproximately 10-20% of prostitution occurs on the street, with the remaindertaking place indoors either legally, through out-call work, or illegally, through incallwork.The evidence further suggests that, while some street prostituteswould move indoors if the option were legally open to them, others would remainon the streets either by choice or by necessity. The interveners PACE, PIVOT,and SWAUV explain that those who remain on the street by necessity would doso because they lack the resources to work indoors, either alone or with others.These “survival sex workers” are likely to be the most vulnerable and mostmarginalized of all prostitutes.[319] We accept that the court should take a claimant‟s vulnerability into accountin the gross disproportionality analysis. The challenge lies in determining howmuch weight to give it. In our view, the controlling factor remains the extent ofthe impact of the law on the claimant‟s s. 7 rights. If the law is the sole, ordominant, cause of the s. 7 deprivation, and that deprivation serves to