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

Page: 79Viewed in historical perspective the keeping of a brothelor a common bawdy-house was a common nuisanceand, as such, was indictable as a misdemeanour atcommon law. It was treated as a public nuisance “notonly in respect of its endangering the public peace bydrawing together dissolute and debauched persons butalso in respect of its apparent tendency to corrupt themanners of both sexes, by such an open profession oflewdness”: Russell on Crime, 12th ed., vol. 2, p. 1440. Itconsisted of maintaining a place to the disturbance ofthe neighbourhood or for purposes which were injuriousto the public morals, health, convenience or safety.[189] This excerpt from Patterson identifies the objectives of the bawdy-houseprovisions as safeguarding the public peace and protecting against corruption ofmorals.As the application judge properly recognized, a legislative purposegrounded in imposing certain standards of public and sexual morality is no longera legitimate objective for purposes of Charter analysis: R. v. Butler, [1992] 1S.C.R. 452, at p. 492.[190] Of course, Parliament could legislate, in the words of Sopinka J. in Butler,at p. 493, “for the purposes of safeguarding the values which are integral to afree and democratic society”. But these are not the objectives of the currentbawdy-house provisions, which are rooted in English common law and relate tonuisance and affront to public decency, not modern objectives of dignity andequality.[191] In these circumstances, we agree with the application judge that to recastthe objectives of these provisions as argued by the Attorneys General would