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

Page: 98(3) Is the living on the avails provision arbitrary?[240] The application judge found that the prohibition against living on the availsof prostitution infringes the principle against arbitrariness. As we just explained,she identified the objective of the legislation as preventing the exploitation ofprostitutes and profiting by pimps from prostitution. The legislation as draftedand interpreted, however, prevents a prostitute from hiring a security guard, apersonal driver, or an assistant who could work to reduce the risk of violence.The application judge therefore reasoned that the effect of the legislation couldnot be said to be connected to, or consistent with, Parliament‟s objective. As shesaid, at para. 379, “it may actually serve to increase the vulnerability andexploitation of the very group it intends to protect”.[241] We do not agree with this analysis. To return to the test enunciated inRodriguez, a provision is arbitrary only where it bears no relation to, or isinconsistent with, the objective that lies behind the legislation. In prohibitingpersons from living on the earnings of prostitutes, the legislation prevents theexploitation of prostitutes and, in particular, prevents pimps from profiting fromprostitution. The legislation may be overbroad, a matter to which we will turnshortly, because it captures activity that is not exploitative, but that is not thesame as arbitrariness.