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

Page: 133MacPherson J.A. (Dissenting in part):[331] I have read the draft reasons prepared by my colleagues. I agree with theiranalysis and conclusions on all issues but one.[332] My colleagues would uphold the validity of s. 213(1)(c) of the CriminalCode (communicating for the purpose of prostitution). They say that the provisionis not arbitrary, overbroad or grossly disproportionate. They conclude that it is,therefore, in accordance with the principles of fundamental justice and s. 7 of theCharter.[333] I agree that the communicating provision is neither arbitrary nor overbroad.However, in my view the application judge was correct to find that “the effects ofthe communicating provision are grossly disproportionate to the goal ofcombating social nuisance” and that the provision therefore violates s. 7 of theCharter.[334] The basic test for gross disproportionality is well known and was recentlyrestated by McLachlin C.J. in PHS, at para. 133, citing Malmo-Levine: “Grossdisproportionality describes state actions or legislative responses to a problemthat are so extreme as to be disproportionate to any legitimate governmentinterest”.[335] The application judge expressly applied this test to the communicatingprovision. Relying on the Prostitution Reference, the application judge described