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

Page: 25application judge and now places them before this court. Accordingly, the issueof Ms. Bedford‟s and Ms. Scott‟s standing is irrelevant. We decline to address it.Issue 2: Are the respondents precluded from challenging theconstitutionality of the bawdy-house and communicating provisions(ss. 210 and 213(1)(c)) by the decision of the Supreme Court in theProstitution Reference, coupled with the principle of stare decisis?[51] The Attorney General of Canada contends that the application judge wasbound by the Prostitution Reference and erred by departing from that bindingprecedent to consider the constitutionality of the bawdy-house provision (s. 210)and the communicating provision (s. 213(1)(c)). The Attorney General of Canadadoes not dispute that it was open to the application judge to consider theconstitutionality of the living on the avails provision (s. 212(1)(j)), which was notat issue in the Prostitution Reference.[52] As we will explain, we conclude that the application judge did not err inconsidering whether or not the bawdy-house and communicating provisionsviolate s. 7 of the Charter. The reason is that both the legal issues raised, andthe legal framework to be applied, are different now than they were at the time ofthe Prostitution Reference. By contrast, we conclude that the application judgeerred in reconsidering whether or not the communicating provision is anunjustified infringement of s. 2(b) of the Charter. The Supreme Court definitivelydecided this issue in the Prostitution Reference, and only that court may revisit it.