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

Page: 32Section 2(b): What did the Prostitution Reference decide?[71] Unlike the s. 7 arguments advanced in respect of the constitutionality ofs. 213(1)(c) of the Criminal Code, the respondents‟ s. 2(b) Charter argumentraises legal issues that were before the Supreme Court in the ProstitutionReference.[72] In this proceeding, as in the Prostitution Reference, all parties agree thats. 213(1)(c) infringes freedom of expression as guaranteed under s. 2(b) of theCharter. The pivotal issue, as in the Prostitution Reference, is whether thatinfringement can be justified as a reasonable limit under s. 1 of the Charter.[73] The application judge described the Prostitution Reference as “prima faciebinding on this court.” However, she referred to a context of violence againstprostitutes that has “changed dramatically” since 1990, two decades of newresearch, and an evolving international legal context, and concluded that it wasappropriate for her to reconsider whether s. 213(1)(c) of the Criminal Codecontinued to be a reasonable limit on the respondents‟ freedom of expression.She explained, at para. 83:In my view, the s. 1 analysis conducted in theProstitution Reference ought to be revisited given thebreadth of evidence that has been gathered over thecourse of the intervening twenty years. Furthermore, itmay be that the social, political, and economicassumptions underlying the Prostitution Reference areno longer valid today. Indeed, several westerndemocracies have made legal reforms decriminalizing