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

Page: 144[362] With respect, this conclusion and rationale are precisely the opposite of thecomparison of this case and PHS earlier in my colleagues‟ reasons, where theysay:We see a parallel between the circumstances of drugaddicts who, because of a criminal prohibition, cannotaccess a venue where they can safely self-inject andtherefore, must resort to dangerous venues, andprostitutes who, because of criminal prohibitions, cannotwork at venues using methods that maximize theirpersonal safety, but must instead resort to venues andmethods where the physical risks associated withprostitution are much greater. In both situations, thecriminal prohibitions, as interpreted by the courts,operate on those claiming the s. 7 breach in a way thatinterferes with their ability to take steps to protectthemselves while engaged in a dangerous activity. Inone sense, the prostitutes‟ claim is even stronger in thatprostitution, unlike the illicit possession and use ofnarcotics, is not an unlawful activity.[363] I prefer this analysis and reach this conclusion: the analysis of s. 7 of theCharter in PHS supports the conclusion that the communicating provision in thiscase, like the Ministerial decision in PHS, violates s. 7.[364] Seventh, the deprivation caused by the communicating provision isparticularly serious in light of the legal framework that applies to prostitutes andthe circumstances in which they work. It must be recalled that, of the threechallenged provisions, the communicating provision is by far the most recent inorigin. The provision was enacted in 1985 at a time when both the bawdy-houseand living on the avails provisions were already in force. The cumulative effect of