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

Page: 134the legislative objective of the communication provision as “[the curtailment of]street solicitation and the social nuisance which it creates” (emphasis in original).There is no doubt that this is a legitimate and important objective.[336] However, the application judge, “after weighing all of the evidencepresented”, found that prostitutes, particularly those who work on the street, areat high risk of being the victims of physical violence and that the communicatingprovision places street prostitutes “at greater risk of experiencing violence.” Sheconcluded that the danger posed to street prostitutes by the communicatingprovision greatly outweighed the goal of combating social nuisance.[337] I can see no error in the application judge‟s determination that thecommunicating provision is grossly disproportionate. My colleagues wouldinterfere with her analysis and uphold the provision. Respectfully, I disagree withtheir reasoning and conclusion on this issue. I do so for seven reasons.[338] First, and most importantly, there is a striking disconnect between mycolleagues‟ analysis and application of the principle of gross disproportionality tothe bawdy-house and living on the avails provisions on the one hand, and theirrefusal to apply the same principle to the communicating provision on the other.With respect, my colleagues‟ description of the three provisions and their effectson prostitutes does not support the conclusion that the communicating provisionis not grossly disproportionate while the bawdy-house and living on the avails