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

Page: 88(6) Are the bawdy-house provisions a reasonable limit under s. 1 of theCharter?[213] The Attorney General of Canada only briefly addressed the issue ofwhether a violation of s. 7 could be saved by s. 1 of the Charter. The AttorneyGeneral of Ontario made no submissions on this issue. The Supreme Court hasheld that it would be a rare occasion when s. 1 could cure a breach offundamental justice, and these rare occasions would tend to involve emergencysituations: Re B.C. Motor Vehicle Act, at p. 518; Malmo-Levine, at para. 271. Inthis case, s. 1 cannot cure the overbreadth and gross disproportionality defects inthe bawdy-house provisions since such a law could not meet the minimalimpairment part of the s. 1 test: Demers, at para. 46.(7) What is the appropriate remedy to address the s. 7 breach?[214] As we have said, to cure the constitutional deficiencies in the bawdyhouseprovisions that she identified, the application judge struck the word“prostitution” from the definition of “common bawdy-house” in s. 197(1) as itapplies to s. 210. The effect is to invalidate the prohibition on bawdy-houses forthe purpose of prostitution, but not for acts of indecency. It also has no impacton other sections of the Criminal Code that reference bawdy-houses, such as theprocuring and concealing provisions in s. 212(1)(b),(c),(e) and (f).[215] The application judge‟s discussion of remedy for the constitutionalviolations centred on whether there should be an immediate or a suspended