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

Page: 137[344] The point I draw from these passages is a simple one. If, as mycolleagues conclude, the bawdy-house and living on the avails provisions cannotsurvive the balancing exercise required by the gross disproportionality principle,then the communicating provision, with its equally serious – and perhaps worse –effects on prostitutes‟ rights to life and security of the person, should not surviveit either.[345] Second, I disagree with my colleagues‟ view that the trial judge“substantially understated the objective of the communicating provision”. Mycolleagues imply that the application judge erred in failing to recognize that“[s]treet prostitution is associated with serious criminal conduct including drugpossession, drug trafficking, public intoxication, and organized crime.”[346] It is not clear to me how street prostitution‟s association with these othersocial ills increases the weight that ought to be assigned to the legislativeobjective. Indeed, in my view, the majority‟s focus on this factor runs contrary tothe Prostitution Reference, where the majority of the Supreme Court of Canadadid not accept Lamer J.‟s position, at p. 1193, that “the curbing of related criminalactivity such as the possession and trafficking of drugs, violence and pimping”was among the objectives of the communicating provision: see p. 1134, DicksonC.J.; p. 1211, Wilson J.