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

Page: 135provisions are. To illustrate this point, I can do no better than quote some of thepassages from my colleagues‟ reasons.[339] In their discussion of the test for gross disproportionality in the section oftheir reasons relating to the communicating provision, my colleagues say this:The onerous standard that must be met to make outgross disproportionality is illustrated in the relatedcontext of cruel and unusual punishment under s. 12 ofthe Charter. In that context, the Supreme Court has alsoimposed a standard of gross disproportionality and usedterms such as abhorrent or intolerable. While we do notsay that the same test can be applied in the s. 7context, these expressions assist in understanding theneed for the claimants to show that the balance tipssignificantly in their favour. [Citations omitted.][340] In my view, this analogy is far removed from the way my colleagues framethe test for gross disproportionality in the bawdy-house and living on the availssections of their reasons. In the final section of their reasons, my colleaguesinject notions of “cruel and unusual punishment” and “abhorrent or intolerable” astouchstones for the analysis of gross disproportionality. This injection lays afoundation for an improper approach to gross disproportionality that is sharply atodds with the analysis in the previous sections of their reasons.[341] In addition, referring to the effects of the three provisions, my colleaguessay:On the facts as found by the application judge, each ofthe provisions criminalizes conduct that would mitigate,to some degree, the risk posed to prostitutes. On those