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

Page: 68concluded, at para. 134, that it is was not necessary to consider whether it wasalso overbroad.This is the clearest and most recent indication from theSupreme Court that these remain three distinct, if closely related, principles.Do the challenged laws reflect an overarching legislative objective oferadicating or discouraging prostitution?[156] Before we assess each provision separately, we begin by addressing theappellants‟ argument that the challenged provisions collectively reflect a broaderlegislative objective aimed at the problem of prostitution generally.[157] The appellants submit that the application judge erred in her analysis ofthe principles of fundamental justice, both by mischaracterizing the objectives ofthe challenged provisions, and by failing to consider those provisions as part ofan overall legislative scheme aimed at eradicating, or at least discouraging,prostitution. 6If this position is correct, the fact that prostitution itself is not illegalis of little constitutional significance. Indeed, it would be difficult for therespondents to establish that the provisions are arbitrary or overbroad andperhaps even disproportionate if, in some way, the laws advance the objective ofreducing or abolishing prostitution.6 The intervener Women‟s Coalition also argues that the broad purpose of all prostitution-related offencesin the Criminal Code is to discourage prostitution. It advocates the Swedish model of asymmetriccriminalization, which prohibits the purchase, but not the sale, of sex. The interveners POWER andMaggie‟s dispute the wisdom of this model, arguing that it does nothing to enhance prostitutes‟ safety andthat it undermines, rather than enhances, the Charter value of equality.