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

Page: 142grounds under s. 15 of the Charter, the s. 7 analysis must take into account thatprostitutes often hail from these very groups. In New Brunswick (Minister ofHealth and Community Services) v. G.(J.), [1999] 3 S.C.R. 46, at para. 115,L‟Heureux-Dubé J. (joined by Gonthier and McLachlin JJ.), concurring in theresult, stated:[I]n considering the s. 7 rights at issue, and the principles of fundamentaljustice that apply in this situation, it is important to ensure that the analysistakes into account the principles and purposes of the equality guarantee inpromoting the equal benefit of the law and ensuring that the law respondsto the needs of those disadvantaged individuals and groups whoseprotection is at the heart of s. 15. The rights in s. 7 must be interpretedthrough the lens of ss. 15 and 28, to recognize the importance of ensuringthat our interpretation of the Constitution responds to the realities andneeds of all members of society.[357] Instead, my colleagues have turned the question of pre-existingdisadvantage on its head. They reason that because prostitutes‟ marginalizationcontributes to their insecurity, the adverse effects of the law are diluted andshould be given less weight.[358] To the contrary, prostitutes‟ pre-existing vulnerability exacerbates thesecurity of the person infringement caused by the communicating provision. It isprecisely those street prostitutes who are unable to go inside or to work withservice providers who are most harmed when screening is forbidden.[359] The communicating provision chokes off self-protection options forprostitutes who are already at enormous risk. The evidence in the record about