Court File No.

C52799 & C52814 COURT OF APPEAL FOR ONTARIO BETWEEN TERRI JEAN BEDFORD, AMY LEBOVITCH and VALERIE SCOTT Applicants (Respondents) and ATTORNEY GENERAL OF CANADA Respondent (Appellant) and ATTORNEY GENERAL OF ONTARIO Intervener (Appellant)

FACTUM OF THE RESPONDENTS

Alan N. Young Barrister & Solicitor Osgoode Hall Law School York University 4700 Keele Street Toronto, Ontario M3J 1P3 Tel: 416-736-5595 Fax: 416-736-5736 Email: ayoung@osgoode.yorku.ca Counsel for the Respondents

TO:

The Registrar Court of Appeal for Ontario 130 Queen Street West Toronto, Ontario M5H 2N5

AND TO:

Michael Morris/Gail Sinclair/Sandra Nishikawa/Julie Jai/Roy Lee/Matthew Sullivan Department of Justice Canada 3400-130 King Street West Toronto, Ontario M5X 1K6 Tel: (416) 973-9704 Fax: (416) 952-4518 Email: michael.morris@justice.gc.ca Counsel for the Appellant, the Attorney General of Canada

AND TO:

Jamie Klukach/Christine Bartlett-Hughes/Megan Stephens Ministry of the Attorney General 720 Bay Street Toronto, Ontario M5G 2K1 Tel: (416) 326-4600 Fax: (416) 326-4656 Email: jamie.klukach@ontario.ca Counsel for the Appellant, the Attorney General of Ontario

AND TO:

Joseph J. Arvay, Q.C. Arvay Findlay 1350-355 Burrard Street Vancouver, B.C. V6B 1S5 Tel: (604) 689-4421 Fax: (604) 687-1941 Email: jarvay@arvayfindlaw.com

Katrina Pacey Pivot Legal Society Suite 103 119 West Pender Street Vancouver, B.C. V6B 1S5 Tel: (604) 225-9700 Fax: (604) 255-1552 Email: katrina@pivotlegal.org

Counsel for the Interveners PACE Society, Downtown East Side Sex Workers United Against Violence, and Pivot Legal Society

AND TO:

Brent Olthuis Hunter Litigation Chambers Suite 2100 1040 West Georgia Street Vancouver, B.C. V6E 4H1 Tel: (604) 891-2400 Fax: (604) 647-4554 Email: bolthuis@litigationchambers.com Counsel for the Intervener B.C. Civil Liberties Association

AND TO:

Rene Lang HIV & AIDS Legal Clinic of Ontario 400-65 Wellesley Street East Toronto, Ontario M4Y 1G7 Tel: (416) 340-7790 Fax: (416) 340-7248 Email: langr@lao.on.ca

Jonathan Shime Cooper & Sandler LLP 1900-439 University Avenue Toronto, Ontario M5G 1Y8 Tel: (416) 340-7790 Fax: (416) 408-2372 Email: jshime@criminal-lawyers.ca

Counsel for the Interveners Canadian HIV/AIDS Legal Network & B.C. Centre for Excellence on HIV/AIDS

AND TO:

Cynthia Peterson Sack Goldblatt Mitchell LLP 1100-20 Dundas Street West Toronto, Ontario M5G 2G8 Tel: (416) 979-6440 Fax: (416) 591-7333 Email: cpeterson@sgmlaw.com

Karin Galldin Galldin Law Suite 500 30 Metcalfe Street Ottawa, Ontario K1P 5L4 Tel: (613) 224-9593 Fax: (613) 230-0872 Email: karin@galldinlaw.ca

Counsel for the Interveners POWER (Prostitutes of Ottawa/Gatineau Work Educate Resists) & Maggies: The Toronto Sex Workers Advocacy Project

ii

AND TO:

Andrew Lokan Paliare Roland Rosenberg Rothstein LLP 501-250 University Ave. Toronto, Ontario M5H 3E5 Tel: (416) 646-4300 Fax: (416) 646-4301 Email: andrew.lokan@paliareroland.com Counsel for the Intervener Canadian Civil Liberties Association

AND TO:

Fay Faraday Faraday Law 860 Manning Ave. Toronto, Ontario M6G 2W8 Tel: (416) 389-4399 Fax: (647) 776-3147 Email: fay.faraday@faradaylaw.com Counsel for the Interveners Canadian Association of Sexual Assault Centres et al.

AND TO:

Robert Staley/Derek Bell/Ranjan K. Agarwal Bennett Jones LLP 3400 First Canadian Place P.O. Box 130 Toronto, Ontario M5X 1A4 Tel: (416) 777-6503 Fax: (416) 863-1716 Email: agarwalr@bennettjones.com Counsel for the Interveners Christian Legal Fellowship, Catholic Civil Rights League & REAL Women of Canada.

iii

TABLE OF CONTENTS Page PART I: OVERVIEW PART II: FACTS ... 1. Nature of the Sex Trade in Canada A. Occupation at Risk Homicide and Serial Killers B. The Sex Trade: Practice & Law Enforcement .. 2. Justice Himels Findings 3. Experiential Support .. 4. Empirical Support . 5. Corroborative Studies 6. Evidence of the Attorneys-General A. Experiential Witnesses .. B. Expert Witnesses ... C. Methodology Expert .. 7. Government Debates and Reports since 1972 ... 8. International Evidence ... PART III: ISSUES & THE LAW 1. Evaluation of Evidence .. A. Common Sense . B. Standard of Review ... C. Deference .. 1 10 10 10 16 18 19 23 35 38 38 41 44 46 49 50 50 51 52 53 Para. 1 25 25 25 36 40 42 47 65 72 72 78 81 85 92 96 96 98 100 102

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D. The Fact-Finding Process . E. Reasonable Hypotheticals . 2. The Threshold Issue Under s. 7 Liberty & Security ... 3. Causal Connection . A. Interference with Essential Life Choices .. B. Third Party Harms . C. Legislative vs. Non-Legislative State Acts ... 4. Legislative Objectives A. A Proper Understanding of Constitutionally Valid Objectives B. Legislative Objectives Communication (s. 213(1)(c)) ... C. Legislative Objectives Bawdy House (s. 210) ... D. Legislative Objectives Living on the Avails (s. 212(1)(j)) 5. The Principles of Fundamental Justice .. A. Fundamental Justice Arbitrariness...... B. Fundamental Justice Overbreadth and Blanket Prohibitions . (i) The Overbroad Operation of Bawdy House .. (ii) The Overbroad Operation of Living on the Avails C. Fundamental Justice Gross Disproportionality .. 6. Reasonable Limits under s. 1 . A. Fundamental Justice and Reasonable Limits B. The Communication Law and Reasonable Limits PART IV ADDITIONAL ISSUES PART V ORDER REQUESTED ..

55 58 60 61 62 64 66 96 70 71 74 78 79 79 83 88 89 91 94 94 94 98 100

109 116 119 122 126 131 136 144 146 150 153 162 164 165 174 184 188 192 199 199 200 208 212

Court File No. C52799 & C52814 COURT OF APPEAL FOR ONTARIO BETWEEN TERRI JEAN BEDFORD, AMY LEBOVITCH and VALERIE SCOTT Applicants (Respondents) and ATTORNEY GENERAL OF CANADA Respondent (Appellant) and ATTORNEY GENERAL OF ONTARIO Intervener (Appellant)

FACTUM OF THE RESPONDENTS

PART I - OVERVIEW
1. By Notice of Application, dated March 20, 2007, Terri Jean Bedford, Amy Lebovitch and

Valerie Scott (the Respondents) sought declaratory relief in the nature of: (a) An Order declaring that ss. 210 (bawdy house), 212(1)(j) (living on the avails of prostitution) and 213(1)(c) (communicating for the purpose of prostitution) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, violate s. 7 of the Charter of Rights and Freedoms and as such are of no force and effect; and (b) An Order declaring that s. 213(1)(c) of the Criminal Code violates s. 2(b) of the Charter and is of no force and effect. 1

Notice of Application dated March 20, 2007, JAR, Vol. 1, Tab 1, p. 3; Notice of Amended Application dated April 23, JAR, Vol. 1, Tab 2, p. 11.

2.

On September 28, 2009, Madam Justice Himel, after a detailed analysis of the extensive

record and submissions made over seven days of hearing, invalidated all three impugned provisions. 2 The following chart sets out the conclusions of the Himel J. with respect to the manner in which the various impugned statutory provisions violated well-established principles of fundamental justice, as well as freedom of expression:
Arbitrary Bawdy House (s. 210) Living on the Avails (s. 212(1)(j)) Communicating (s. 213(1)(c)) All in Combination Overbroad Grossly Disproportionate Rule of Law 3 s. 2(b)

No Yes No Yes

Yes Yes No N/A

Yes Yes Yes N/A

N/A N/A N/A N/A

N/A N/A Yes N/A

3.

Canada asserts that Himel J.s conclusions are predicated on an erroneous assumption

that an individual is entitled to engage in prostitution and that Parliament is obliged to minimize hindrances and maximize safety for those that do so contrary to the law. 4 This constitutional challenge is not about entitlements or affirmative state obligations. This is not a case of the state turning a blind eye and failing to take active measures to reduce violence. This is a case in which state action, a legislative enactment, plays a critical role in the perpetuation of violence by imposing a blanket prohibition on conduct which can serve to enhance the safety of sex workers. 4. Putting aside that the logic of the Appellants assertion embraces a blaming the victim

perspective, the fundamental flaw permeating all of the arguments advanced by the Appellants is that it assigns no juridical importance to the fact that selling sex is not illegal. The Appellants

With respect to the bawdy house offence, Himel J. struck down the word prostitution from the offence so that the offence can continue in force with respect to indecent acts, but not acts of prostitution. 3 Himel J. did not find it necessary to address the rule of law (or Hitzig) argument as she found all of the provisions to be unconstitutional in any event. It is respectfully submitted that the principle of fundamental justice of the rule of law provides an alternative basis upon which this Honourable Court may find each of the impugned provisions to violate principles of fundamental justice. 4 Factum of the Appellant Attorney General of Canada at para. 4.

contend that the provisions seek to deter individuals from choosing to engage in the practice of prostitution at all; 5 however, this objective is not tantamount to a legislative declaration of illegality. The Appellants have failed to recognize Wilson J.s admonition in the Prostitution Reference that we cannot treat as a crime that which the legislature refrained from making as a crime. 6 Her Honour further stated: Whatever the reasons may be, the persistent resistance to outright criminalization of the act of prostitution cannot be treated as inconsequential. I mention these possible reasons for the continuing legality of prostitution not for the purpose of endorsing any particular theory but rather to emphasize that the legality of prostitution must be recognized in any s. 7 analysis and must be respected regardless of ones personal views on the subject. As long as the act of selling sex is lawful is seems to me that this Court cannot impute to it the collective disapprobation reserved for criminal offences. [Emphasis Added.] 7 5. In their factums, the Appellants assert that the complexity of the social policy issue

demands deference to Parliaments legislative choices, and that the Himel J. overstepped her role by becoming embroiled in the resolution of controversial policy questions that are not amenable to scientific certainty. 8 This grossly mischaracterizes the nature of the case. Without doubt, the Appellants demonstrated in their evidence that there are numerous controversial policy questions that surround the sex trade; however, these difficult questions are neither germane nor relevant to the resolution of the specific constitutional claims raised by the Respondents. 6. Although the Appellants devote most of their factums to re-arguing factual issues, it must

be recognized that the evidence tendered by the Respondents was introduced solely to prove one factual proposition: that the impugned provisions prevent sex workers from taking rudimentary steps to protect their physical safety. Proof of this proposition was a necessary component for
5 6

Factum of the Appellant Attorney General of Canada at para. 4. Reference Re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 at 1217. 7 Ibid., at 1217. 8 Factum of the Appellant the Attorney General of Ontario at para. 24.

demonstrating that the law contributes to a deprivation of security of the person in a manner not in accordance with the fundamental justice principle of gross disproportionality. The evidence has little bearing on demonstrating a deprivation of liberty that violates other principles of fundamental justice, such as the rule of law, and arbitrariness and overbreadth. 7. The fundamental justice claims of overbreadth, rule of law, and arbitrariness (in terms of

its extension to claims of inconsistency with state objectives) are not fact-driven doctrines that require the resolution of controversial factual issues or policy questions. These doctrines largely turn on legal questions concerning the proper interpretation of the underlying objectives and scope of current legislation, and the rationality of the connection between scope and objective. 8. With respect to arbitrariness and overbreadth, Himel J. correctly identified the underlying

state objectives for the impugned provisions, and applied the proper test for determining whether the scope of the provisions was overly broad or inconsistent in relation to their underlying objectives. Himel J. was correct in concluding that the three provisions taken together operated arbitrarily by demanding that sex workers get off the street while simultaneously prohibiting them from relying on any safe and legal options to achieve this objective. In addition, Himel J. correctly concluded that the impugned provisions were overbroad in that they extended far beyond the states legitimate objective in combating nuisance and exploitation. 9. The Appellants dispute this, arguing that Himel J. erred by restricting the scope of the

impugned provisions to nuisance and exploitation; however, to make this assertion, the Appellants mythically broaden the state objectives to include concerns identified by some scholars and political advocates but never directly adopted or endorsed by Parliament or identified in the course of judicial interpretation.

10.

With respect to security of the person and the vice of gross disproportionality, Himel J.

carefully and correctly assessed the relevant evidence in reaching the conclusion that the intersection and operations of ss. 210, 212(1)(j) and 213(1)(c) materially contribute to the violence that street sex workers face on a daily basis. 11. Under s. 210, it is illegal to conduct business in an indoor location on a habitual and

frequent basis. The evidence tendered on this application demonstrated on a balance of probabilities that violence is significantly reduced or eliminated in most indoor settings. Under s. 212(1)(j), it is illegal for a sex worker to hire managers, drivers, or security personnel. The evidence tendered on this application demonstrated on a balance of probabilities that these types of services can reduce or eliminate the incidence of violence against sex workers. Under s. 213(1)(c), it is illegal to communicate for the purposes of prostitution. The evidence tendered on this application demonstrated on a balance of probabilities that this prohibition has compelled sex workers into making hasty decisions without properly screening customers while working on the street, materially contributing to the risk of harm that they face. 12. Accordingly, in making a finding that the impugned provisions were grossly

disproportionate, Himel J. did not become embroiled in controversial policy questions. The only factual questions that required resolution were the following: 1) 2) 3) Can a sex trade worker enhance her safety and security by moving to an indoor location? Can a sex trade worker enhance her safety and security by recruiting the assistance of third parties? Can a sex trade worker enhance her safety and security by communicating with prospective customers in a public place?

13.

In addition, with respect to the issue of whether s. 213(1)(c) can be upheld as a

reasonable limit on free expression, Himel J. was required to address one additional question:

Has it been demonstrated that this impugned provision is ineffective, in that it has done little or nothing since its enactment to enhance the states objective of reducing or eradicating street prostitution? 14. These were the matters that Himel J. addressed, and based on the evidence she reached

the correct answer to each of these questions. In support of her analysis, Himel J. made certain findings of fact. These findings were amply supported by a wide array of evidentiary sources: experiential evidence, empirical study, government reports from foreign jurisdictions and Canada, and simple common sense. With respect to security and safety, she concluded: The evidence led on this application demonstrates on a balance of probabilities that the risk of violence towards prostitutes can be reduced, although not necessarily eliminated. The two factors that appear to affect the level of violence against prostitutes are location or venue of work and individual working conditions. With respect to venue, working indoors is generally safer than working on the streets. Factors that may enhance the safety of a prostitute include being in close proximity to people who can intervene if needed, taking the time to screen a client (for example, smelling a potential client's breath, taking credit card numbers, working out expectations and prices), having a more regular clientele, and planning an escape route. While such measures may seem basic in their ability to reduce the risk of danger, the evidence supports these findings on a balance of probabilities. 9 15. With respect to the effectiveness of the communication provision, she concluded: The evidence in this case demonstrates that the communicating law has had a minimal impact on reducing street solicitation in public places, merely displacing street prostitution to different areas in some instances, and has not, consequently, had an appreciable effect on social nuisance. In addition to many of the applicants witnesses who deposed to this, the government reports also support such a finding. 10

10

Bedford, AB, Tab 5, paras. 300-301. See also paras. 361-362. Bedford, AB, Tab 5, paras. 380. (citations omitted).

16.

Whether the standard of review on this appeal is correctness or palpable and overriding

error, it is clear that Himel J. carefully weighed the evidence and did not commit any error with respect to her assessment of it. Respectfully, the arguments raised by the Appellants alleging errors in Himel J.s approach to the evidence is a desperate attempt to shift the focus of this appeal to the prosaic issue of the formal and technical requirements for judicial assessment of legislative facts and whether courts should rely on quantitative but not qualitative research. This is not what this case is about. 17. Neither is this case about a constitutional right to engage in prostitution, nor is it a

veiled attempt to resurrect the economic rights claim made during the 1990 Prostitution Reference, as claimed by the Appellants. To suggest that this claim is built upon the notion that there is an entitlement to engage in prostitution free from state interference trivializes the serious nature of the rights-claim being advanced. The constitutional claim that the legislation bars workers from pursuing their work in a safe setting bears no relationship to the Appellants characterization of the claim as being about a constitutional entitlement to sell sex. 18. The Appellants are simply wrong in asserting that Himel J. should have dismissed the

application on the basis of stare decisis and the Prostitution Reference. In that decision, the Supreme Court upheld the validity the bawdy house and communication provisions against two Charter claims not raised in this application: economic liberty and vagueness. 19. The Supreme Court did not address the constitutional claims raised in this application.

Indeed, they could not have. The claims raised in the instant case are based on constitutional doctrines that were only developed subsequent to the Prostitution Reference: arbitrariness 11 and

11

Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519.

overbreadth 12 were only identified as principles of fundamental justice in 1993 and 1994. The rule of law 13 and gross disproportionality 14 only emerged as doctrines a decade later. 15 20. As for s. 2(b) of the Charter, the Respondents recognize that Himel J.s conclusion that s.

213(1)(c) can no longer be considered a reasonable limit on freedom of expression is contrary to the 1990 ruling. In the normal course of events, stare decisis would apply. However, numerous government reports and academic studies not before the Court during the Reference subsequently demonstrated that the communication provision has been ineffective in that it simply displaces sex workers and has not reduced the overall incidence of prostitution or street nuisance: Frank Graves, Street Prostitution: Assessing the Impact of the Law Halifax (Ottawa: Minister of Supply and Service Canada, 1989); 16 Robert Gemme, Street Prostitution: Assessing the Impact of the Law Montreal (Ottawa: Minister of Supply and Service Canada, 1989); 17 Sharom Moyer & Peter J. Carrington, Street Prostitution: Assessing the Impact of the law Toronto (Ottawa: Minister of Supply and Service Canada, 1989); 18 Augustine Brannigan, Louis Knafla & Christopher Levy, Street Prostitution: Assessing the Impact of the Law Calgary/Regina/Winnipeg (Ottawa: Minister of Supply and Service Canada, 1989); 19 John Lowman, Street Prostitution: Assessing the Impact of the Law Vancouver (Ottawa: Minister of Supply and Service Canada, 1989); 20 Research Section, Department of Justice, Street Prostitution: Assessing the Impact of the Law Synthesis

R. v. Heywood, [1994] 3 S.C.R. 761. Hitzig v. Canada (2003), 117 C.C.C. (3d) 449 (Ont. C.A.). 14 R. v. Malmo-Levine; R. v. Caine, [2003] 3 S.C.R. 571. 15 It is interesting to note that in 1990, the Supreme Court did characterize the legal regime as circuitous, odd and bizarre: Prostitution Reference, supra at 1142, 1162, 1191. However, at that time, s. 7 jurisprudence had not yet developed the legal tools to allow for constitutional review of these vices of irrationality 16 JAR, Vol. 75, Tab 157(A). 17 JAR, Vol. 75, Tab 157(B). 18 JAR, Vol. 76, Tab 157(C). 19 JAR, Vol. 76, Tab 157(D). 20 JAR, Vol. 77, Tab 157(E).
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Report (Ottawa: Minister of Supply and Services Canada, 1989); 21 Augustine Brannigan, Victimization of Prostitutes in Calgary and Winnipeg: Technical Report for the Department of Justice (1994); 22 Federal/Provincial/Territorial Working Group on Prostitution, Report and Recommendations in respect of Legislation, Policy and Practices Concerning ProstitutionRelated Activities (1998); 23 and House of Commons, Standing Committee on Justice and Human Rights, The Challenge of Change: A Study of Canadas Criminal Prostitution Laws (2006). 24

21.

In addition, these reports and studies provided new evidence that the displacement effect

of enforcing this law increased the risk to the safety of sex workers, as did the very prohibition on communicating with prospective clients. 22. In contrast, the only report that was before the Supreme Court in the Prostitution

Reference was the Report of the Special Committee on Pornography and Prostitution (1985) (the Fraser Report), 25 which the Court relied on only for very limited purposes. 26 23. In light of this new evidence, Himel J. did not err in concluding that the balancing test

required under s. 1 should be revisited. Moreover, her ultimate conclusion echoed the conclusions of the 1998 Federal/Provincial/Territorial Working Group on Prostitution: The research results indicated that the law was not meeting its objectives as its main effect in most centres has been to move street prostitutes from one downtown area to another, thus merely displacing the problem. However, as mentioned in the previous paragraph, the Supreme Court of Canada had already ruled that the communicating law was a justifiable infringement because its
JAR, Vol. 75, Tab 157. JAR, Vol. 8, Tab 34(D). 23 JAR, Vol. 79, Tab 160. 24 JAR, Vol. 82, Tab 164. 25 JAR, Vol. 70, Tab 154(A), Vol. 71, Tab 154(B). 26 In particular, the Dickson C.J. noted that the Fraser Report set out a number of potential approaches for Parliament to consider with respect to dealing with street solicitation: Prostitution Reference, supra at 1137. Lamer J. referred to the report for the same purpose, as well as when considering the legislative objectives of the solicitation and communication offences, and to note the approaches taken by some foreign jurisdictions: Prostitution Reference, supra at 1192, 1196, 1200.
22 21

strengths (reducing the street nuisance associated with street prostitution) outweighed the infringement on freedom of expression. Had the research results been made available prior to the Supreme Court decision, the question whether s. 213 is a justifiable infringement on freedom of expression might have been considered differently. [Emphasis added.] 27 24. In conclusion, the claims advanced by the Respondents do not question Parliaments

authority to address the complex social issues surrounding the sex trade in a manner it believes to be in the public interest, whether that approach be one of regulation or prohibition. This case only questions the rationality of the means chosen by Parliament to achieve its stated objectives. It is submitted that, in the pursuit of its legitimate objectives, Parliament has created a legislative regime that, on its face, is irrational and inconsistent, and which in its effects contributes to an increased risk of significant physical harm for those who attempt to comply with its contradictory demands.

PART II FACTS
1. NATURE OF THE SEX TRADE IN CANADA A. 25. Occupation at Risk Homicide and Serial Killers 28

Since 2000, Statistics Canada, in its annual Juristat report Homicide in Canada, has

characterized that the sex trade as an occupation at risk.29 Along with sex trade workers, police

Federal/Provincial/Territorial/Working Group on Prostitution, Report and Recommendations in respect of Legislation Policy and Practices Concerning Prostitution-Related Activities (1998), JAR, Vol. 79, Tab 160, p. 23873. 28 Most of the facts and figures outlined here were referred to and relied upon by Himel J. in her reasons for judgment: Bedford v. Canada, AB, Tab 5, paras. 92, 121-124, 294-299. 29 Statistics Canada, Homicide in Canada, 2000 by Orest Fedorowycz (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2001), JAR, Vol. 86, Tab 167, p. 26256; Statistics Canada, Homicides in Canada, 2001 by Mia Dauvergne (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2002), JAR, Vol. 86, Tab 168, p. 26275; Statistics Canada, Homicide in Canada, 2002 by Josee Savoie (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2003, JAR, Vol. 86, Tab 169, p. 26290; Statistics Canada, Homicide in Canada, 2003 by Mia Dauvergne (Ottawa: Juristat: Canadian Centre for Justic Statistics, 2004), JAR, Vol. 86, Tab 170, p. 26311; Statistics Canada, Homicide in Canada, 2004 by Mia Dauvergne (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2005), JAR, Vol. 86, Tab 171, p. 26337; Statistics Canada, Homicide in Canada, 2005 by Mia Dauvergne and Geoffrey Li (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2006), JAR, Vol. 86, Tab 172, p. 26362.

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10

officers and taxi drivers are included in this category. Although this report only records two homicide victims from the sex trade in 2000 and 2001, in the 2001 report it is noted that since 1991, 73 prostitutes have been killed while working. 30 From 2002 to 2004 the numbers jump with 18 homicides in 2002, 11 in 2003, and 18 in 2004. 31 This increase in homicides over these three years represents the continuing discovery of the bodies in Port Coquitam, British Columbia, on the farm owned by convicted serial killer Robert Pickton. 32 26. However, even after all human remains had been located and removed from the Pickton

farm, Statistics Canada has not seen a significant reduction in the homicide figures. In 2005, Statistics Canada reported that police reported a total of nine prostitutes killed, similar to the average number reported each year prior to the discovery of the homicides in Port Coquitlam. 33 In 2006 it was reported that a total of 12 prostitutes were killed in 2006 similar to the average number reported each year prior to the discovery of the homicides in Port Coquitlam. 34 In 2007 it was reported that 15 prostitutes were killed as a direct result of their profession, up from an average of 7 per year for the previous decade. 35

Statistics Canada, Homicide in Canada, 2001 by Mia Dauvergne (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2002), JAR, Vol. 86, Tab 168, p. 26275. 31 Statistics Canada, Homicide in Canada, 2002 by Josee Savoie (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2003, JAR, Vol. 86, Tab 169, p. 26290; Statistics Canada, Homicide in Canada, 2003 by Mia Dauvergne (Ottawa: Juristat: Canadian Centre for Justic Statistics, 2004), JAR, Vol. 86, Tab 170, p. 26311; Statistics Canada, Homicide in Canada, 2004 by Mia Dauvergne (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2005), JAR, Vol. 86, Tab 171, p. 26337. 32 In 2006 the Report of the Standing Committee on Justice and Human Rights noted that in the past decade at least 79 prostitutes were murdered while engaging in prostitution activities: House of Commons, Report of the Standing Committee on Justice and Human Rights, The Challenge of Change: A Study of Canadas Criminal Prostitution Laws, JAR, Vol. 82, Tab 164, p. 24926. Appellants witness Susanne Wallace-Capretta reported that between 1996 and 2006, there were 77 homicides against prostitutes as a result of their profession: Affidavit of Suzanne Wallace-Capretta, JAR, Vol. 64, Tab 128, pp. 18932-18933. 33 Statistics Canada, Homicide in Canada, 2005 by Mia Dauvergne and Geoffrey Li (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2006), JAR, Vol. 86, Tab 172, p. 26363. 34 Statistics Canada, Homicide in Canada 2006 by Geoffrey Li (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2007), JAR, Vol. 86, Tab 173, p. 26384. 35 Statistics Canada, Homicide in Canada, 2007 by Geoffrey Li (Ottawa: Juristat: Canadian Centre for Justice Statistics, 2008), JAR, Vol. 86, Tab 174, p. 26406.

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27.

The high prevalence of violence against sex trade workers had been well-recognized

many years prior to Statistics Canadas decision in 2000 to characterize the sex trade as an occupation at risk. As early as 1985, the Special Committee on Pornography and Prostitution (the Fraser Committee) remarked that one has to conclude that the way in which street prostitution is currently carried out, results in a profession which is often dangerous, especially to the prostitute, but also to the customer at times. 36 In blunt terms, the Committee noted that prostitutes agree that life on the streets is a hell-hole. 37 A few years later, in 1989, the Department of Justices mandatory three year review of the new communications law, Street Prostitution: Assessing the Impact of the Law, expressed concern that some prostitutes in all the main study sites stated that they worked under more tense conditions according to many prostitutes, area restrictions aimed at removing them from main prostitution strolls simply forced them to work in more isolation, increasing the danger to them. 38 28. In 1995, Statistics Canada released its one and only Juristat report specifically on

prostitution, Street Prostitution in Canada. This report provided concrete details of the hellhole which the Fraser Committee had referred to: A recent study confirms that physical and sexual assaults on street prostitutes are commonly carried out by clients, pimps and boyfriends Sometimes assaults are serious enough to cause death. Indeed, 63 known prostitutes were found murdered between 1991 and 1995. Most (50) appear to have been killed by customers. Eight were thought to be killed by pimps or in drug-related incidents. The remaining deaths were at the hands of husbands, common-law spouses and boyfriends. Almost all of the murdered prostitutes were female: 60 of the 63 who died between 1991 and 1995. Seven of the prostitutes killed were juveniles aged 15-17

Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution, Volume 2, JAR, Vol. 71, Tab 154, p. 20896. 37 Ibid,, p. 20912. 38 Street Prostitution: Assessing the Impact of the Law Synthesis Report Research Section, Department of Justice, JAR, Vol. 75, Tab 157, p. 22353.

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all females. During this period, known prostitutes accounted for 5% of all female homicides. 39 29. In 1994 and 1995, the Federal/Provincial/Territorial Working Group on Prostitution

commissioned studies on violence against prostitutes in Halifax, Montreal, Toronto, Calgary, Winnipeg and Vancouver. 40 The conclusions drawn by the Working Group in 1998 were as follows: The objective of these studies was to understand the impact of the communicating provision (s. 213) on homicide and violence against street prostitutes. The studies documented that the atmosphere on the street in each of the sites had become more tense, although a causal link between enforcement and prostitutes deaths could not be established. Specifically, the following was found. In Vancouver, researchers felt that the implementation of s. 213 had consolidated the criminal status of street prostitutes, forced them to work in more remove areas and pushed into more adversarial relationships with police. This situation was believed to contribute to the murder of street prostitutes. In Calgary, prostitutes reported that the street had become a much more tense and fearful milieu. Yet increases in violent crimes against street prostitutes were mirrored by an increase in violent crimes against women in general. This provides a competing explanation. In Montreal, there was evidence that enforcement of s. 213 had resulted in prostitutes working in more remote areas, being less careful in choosing fro a diminished number of customers and being further entrenched in drug use than had been reported in earlier studies. 41 30. The Working Group also noted that there is a low clearance rate for homicides against

prostitutes. Taking figures from the 1995 Juristat, Street Prostitution in Canada, the Working Group noted that at the end of 1996, 34 incidents (54%) reported between 1991 and 1995 remained unresolved. In comparison, 20% of homicide victims other than known prostitutes
Statistics Canada, Street Prostitution in Canada by Doreen Duchesne (Ottawa: Juristat: Canadian Centre for Justice Statistics, 1997), JAR, Vol. 86, Tab 166, p. 26236. 40 Note: Professor Brannigans study referred to in the previous paragraph was commissioned for this Working group, and Professor John Lowman was commissioned to complete the research in the Vancouver site. 41 Federal/Provincial/Territorial Working Group on Prostitution, Report and Recommendations in respect of Legislation, Policy and Practices Concerning Prostitution-Related Activities (1998), JAR, Vol. 79, Tab 160, p. 23874.
39

13

were unsolved. 42 In other words, there is a 46% clearance rate for resolving cases against sex workers, whereas there is an 80% clearance rate for all other victims. Similarly, in his 1994 study of 20 homicide cases against street sex workers in Calgary and Winnipeg, Professor Brannigan noted that only 7 of 20 led to a charge and only 3 charges resulted in convictions. 43 31. It is clear that the high rate of homicide in recent years is not solely the product of Robert

Pickton, who was arrested for the murders of 26 street sex workers who had gone missing from Vancouvers lower east side. On October 14, 2003 the R.C.M.P. announced the creation of a special division, Project KARE, to deal with 82 cases of unsolved homicides and missing persons from high-risk lifestyles in the Edmonton/Calgary corridor. 44 The issuance of a $100,000 reward and the creation of a 50-member team has not led to a higher clearance rate.45 Only two of the 41 unsolved homicides have led to charges, and since the creation of Project KARE, there has been at least five new homicides involving street sex workers. 46 32. The problem of missing street sex workers is not confined to Vancouver and the

Edmonton/Calgary corridor. Jody Patterson of PEERS (Prostitution Empowerment, Education and Resource Society) deposed that it is nave to blame all of the violence on a single serial killer because violence is systematic in outdoor prostitution. 47 She points out that in her hometown of Victoria, British Columbia, there are around twelve in the last decade missing outdoor sex workers and several unsolved murders of sex workers. 48 Oscar Ramos of the Vancouver Police Department and Eduardo Dizon of the Toronto Police Service both
Federal/Provincial/Territorial Working Group On Prostitution, JAR, Vol. 79, Tab 160, p. 23874; Statistics Canada, Street Prostitution in Canada by Doreen Duchesne (Ottawa: Juristat: Canadian Centre for Justice Statistics, 1997), JAR, Vol. 86, Tab 166, p. 26236. 43 Augustine Brannigan, Victimization of Prostitutes in Calgary and Winnipeg: Technical Report for the Department of Justice (1994), JAR, Vol. 8, Tab 34(D), pp. 2168-2169. 44 Cross-examination of Detective Jim Morrissey, JAR, Vol. 34, Tab 79, p. 9817. 45 Cross-examination of Corporal Sonia Joyal, JAR, Vol. 36, Tab 89, p. 10593. 46 Ibid,, pp.10590, 10594-10595. 47 Affidavit of Jody Patterson, JAR, Vol. 7, Tab 30, p. 1836. 48 Ibid., p. 1836.
42

14

acknowledged that the problem of sex worker vulnerability to predatory killers has not subsided since the arrest of Robert Pickton, and similar incidents could occur in any major urban centre in Canada. 49 In fact, during the 1996 Victoria Day long weekend, Marcello Palma shot three prostitutes execution style in the period of one hour in the City of Toronto. All three victims worked on the street. Upon conviction for the three murders, he commented that he was getting rid of street scum. 50 33. In 2001 the Green River Killer, Gary Ridgway, was finally caught after decades of

eluding police. In pleading guilty to the murders of 48 street sex workers in the North-West United States, he made the following statement: I picked prostitutes as my victims because I hate most prostitutes and I did not want to pay for sex. I also picked prostitutes as victims because they were east to pick up without being noticed. I picked prostitutes because I though I could get away with it. 51 34. Dr. Elliot Leyton, Professor Emeritus at Memorial University, deposed that there is a type

of serial killer, the Mission-Oriented Type, who sets out on a mission to rid society of persons considered beneath contempt such as prostitutes. He noted that Ridgways statement summarizes what appears to go on in the minds of most of these killers.52 Compared to the average person, street sex workers represent easy targets for serial predators because of their accessibility; it is much more difficult for a stranger to lure the average person into their car, whereas street workers enter strange vehicles as part of their work and because of the societal refusal to provide adequate protections. 53

Cross-examination of Detective Constable Oscar Ramos, JAR, Vol. 36, Tab 87, pp. 10461-10462; Crossexamination of Detective Constable Eduardo Dizon, JAR, Vol. 37, Tab 92, p. 10736. 50 Affidavit of Kara Gillies, JAR, Vol. 6, Tab 24, p. 1305. 51 Affidavit of Elliot Leyton, JAR, Vol. 10, Tab 40, p. 2681; In-court statement of Gary Ridgeway, dated November 5, 2003, JAR, Vol. 10, Tab 40(E), p. 2706. 52 Affidavit of Elliot Leyton, JAR, Vol. 10, Tab 40, p. 2681. 53 Ibid., pp. 2679-2680.

49

15

35.

In his affidavit, Dr. Leyton expressed support for providing sex workers with a safe and

clean place to work. From years of studying serial killers, he has not come across any serial killer who kidnapped prostitutes from a [supervised] indoor location. 54 However, since the late nineteenth-century, starting with the horrors of Jack the Ripper disemboweling street prostitutes with surgical precision, we have seen a repeating pattern of serial killers targeting street prostitutes: Gary Ridgway (Green River Killer 48 victims, early 1980s); Peter Sutcliffe (The Yorkshire Ripper 13 victims, late 1970s); Arthur Shawcross (Genessee River Killer 10 victims, late 1980s) and Joel Rifkin (New York City 9 victims, early 1990s). 55 B. 36. The Sex Trade: Practice & Law Enforcement

The nature of the sex trade has changed over the past few decades, and it is now

estimated that 80% of the trade takes place off-street. 56 The 2006 report of the Standing Committee on Justice and Human Rights stated that street prostitution accounts for just 5% to 20% of all prostitution activity in this country. 57 37. Statistics Canadas 1995 Juristat report, Street Prostitution in Canada, noted that since

the communicating law has been in force, the focus of arrests has been on street prostitution. For example, in 1995 the vast majority of prostitution incidents involved communication (92%), distantly followed by procuring (5%) and bawdy house incidents (3%). In contrast, only 22% of the incidents recorded in 1985 were for soliciting, while over half (58%) were related to bawdy

Affidavit of Elliott Leyton, JAR, Vol. 10, Tab 40, p. 2682. Ibid., p. 2679. 56 Affidavit of Ronald Weitzer, JAR, Vol. 30, Tab 64, p. 8530, para. 11; Cross-Examination of Detective Jim Morrissey, JAR, Vol. 34, Tab 79, p. 9868; Affidavit of Detective Randy Cowan, JAR, Vol. 35, Tab 84, p. 10266, para. 12; Dan Gardner, The Secret World of Hookers Ottawa Citizen, 8 June 2002, JAR, Vol. 10, Tab 38(D), pp. 2559-2560; Affidavit of John Lowman, JAR, Vol. 15, Tab 51, p. 4169; Cross-examination of John Lowman (Volume 1), JAR, Vol. 21, Tab 53, pp. 5941-5942. 57 House of Commons, Standing Committee on Justice and Human Rights, The Challenge of Change: A Study of Canadas Criminal Prostitution Laws (2006), JAR, Vol. 82, Tab 164, p. 24913.
55

54

16

house activities, and 19% were for procuring A little over half (55%) of those charged with a communicating offence were female. 58 38. Crown witness Suzanne Wallace-Capretta, of the Department of Justice, provided the

following updated statistics: The number of adults charged with prostitution offences in Canada varied from 6,397 in 1996 to 5,701 in 2006. This decrease is similar to the 16% decrease in the total number of federal statute incidents reported during the same time period When the total incidents are examined by offence groupings, the majority of incidents of prostitution reported are for communication offences which comprise more than 85% of the incidents in any given year between 1996 and 2006 There was an almost equal charging of men and women for incidents of communication: 49% and 51% respectively. 59 39. The 2006 Report of the Standing Committee on Justice and Human Rights noted that

unlike section 213, the bawdy house provisions are rarely enforced by police, as they often pass under the radar of the prosecution process that is driven primarily by complaints. While witnesses testified as to the wide prevalence of various types of indoor prostitution at all levels of society, the rate of incidence is less than one per 100,000 population. 60 The Committee noted that bawdy house investigations are time consuming and expensive, and some of the police witnesses for the Crown also noted that there were few bawdy house charges (only 24 per year in Toronto 61 ) due to the labour intensive nature of such investigations. 62

2.

JUSTICE HIMELS FINDINGS

Street Prostitution in Canada, Statistics Canada Report, JAR, Vol. 86, Tab 166, p. 26232. Affidavit of Suzanne Wallace-Capretta, JAR, Vol. 64, Tab 128, pp. 18922-18994. 60 House of Commons, Standing Committee on Justice and Human Rights, The Challenge of Change: A Study of Canadas Criminal Prostitution Laws (2006), JAR, Vol. 82, Tab 164, p. 24963. 61 Affidavit of Detective Howard Page, JAR, Vol. 34, Tab 81, p. 10011, para. 16. 62 Ibid., p. 10011-10012, paras. 16-18; Affidavit of Detective Constable Michelle Holm, JAR, Vol. 35, Tab 83, p. 10247, para. 21; Cross-Examination of Detective Constable Oscar Ramos, JAR, Vol. 36, Tab 87, pp. 1047110472.
59

58

17

40.

With respect to safety, Himel J. made the following findings: I find the following facts after weighing all of the evidence presented to me: 1. Prostitutes, particularly those who work on the street, are at a high risk of being the victims of physical violence. 2. The risk that a prostitute will experience violence can be reduced in the following ways: a. Working indoors is generally safer than working on the streets; b. Working in close proximity to others, including paid security staff, can increase safety; c. Taking the time to screen clients for intoxication or propensity to violence can increase safety; d. Having a regular clientele can increase safety; e. When a prostitutes client is aware that the sexual acts will occur in a location that is pre-determined, known to others, or monitored in some way, safety can be increased; f. The use of drivers, receptionists and bodyguards can increase safety; and g. Indoor safeguards including closed-circuit television monitoring, call buttons, audio room monitoring; financial negotiations done in advance can increase safety. 3. The bawdy-house provisions can place prostitutes in danger by preventing them from working in-call in a regular indoor location and gaining the safety benefits of proximity to others, security staff, closed-circuit television and other monitoring. 4. The living on the avails of prostitution provision can make prostitutes more susceptible to violence by preventing them from legally hiring bodyguards or drivers while working. Without these supports, prostitutes may proceed to unknown locations and be left alone with clients who have the benefit of complete anonymity with no one nearby to hear and interrupt a violent act, and no one but the prostitute to identify the aggressor. 5. The communicating provision can increase the vulnerability of street prostitutes by forcing them to forego screening customers at an early and crucial stage of the transaction. 63

41.
63

With respect to ineffectiveness, Himel J. found:

Bedford v. Canada, AB, Tab 5, para. 421.

18

[B]ased upon the evidence before me, that the law does not effectively curtail the social nuisance associated with street prostitution. While the law may allow the police to direct prostitutes towards social service supports or capture pimps on occasions, I conclude that the salutary effects of the communicating provision in combating the social nuisance associated with street prostitution are minimal. 64 3. 42. EXPERIENTIAL SUPPORT All three Respondents have had extensive experience in the sex trade, working both in

outdoor and indoor settings. Ms. Bedford left the streets after 10 years of enduring serious violence, and she found increased security and safety working within indoor locations with the assistance of third parties. Unfortunately, her indoor premises were shut down in 1994 after she was charged with being a keeper of a common bawdy house. However she wishes to return to this work, but not at the risk of exposing herself to criminal liability. 65 Similarly, Ms. Scott has worked in a variety of locations, and she has also established sex worker associations to assist other workers with security issues. Like Bedford, she wishes to resume her involvement in the sex trade in a safe indoor location, but not at the risk of exposing herself to criminal liability. 66 43. Ms. Lebovitch initially worked on the street, but within a year moved to an indoor

location because this provided me with the unique ability to protect myself from clients that I felt could potentially pose a dangerthough the use of safety procedures I believed that the measures I was able to take while working in an environment that I controlled prevented me from experiencing any major incidents of violence. 67 Although Ms. Lebovitch feels more physically secure working at her home, she remains concerned about the legal consequences of her current vocation. She fears being charged under the bawdy house provision and the possibility of

64 65

Bedford v. Canada, AB, Tab 5, para. 498 Affidavit of Terri-Jean Bedford, JAR, Vol. 2, Tab 11, pp. 46-53. 66 Affidavit of Valerie Scott, JAR, Vol. 3, Tab 16, pp. 293-299, 302. 67 Affidavit of Amy Lebovitch, JAR, Vol. 2, Tab 13, pp. 165-166.

19

forfeiture of her home. Further, Ms. Lebovitch does not want her partner, who works independently and contributes to [the] household to face charges for living on the avails.68 44. Twenty-four witnesses tendered affidavit evidence for this Application on behalf of the

Respondents, which described and outlined the nature and frequency of physical and psychological violence experienced by sex trade workers in various cities and towns across Canada. Of the 24 witnesses, 12 have worked or are currently working in the sex trade. Of these twelve, six currently work for groups or associations that provide assistance to sex trade workers. Eight witnesses have academic postings at various universities across Canada, and have conducted empirical research into issues relating to violence against sex workers in various Canadian jurisdictions. One witness is a journalist, and another is a current Member of Parliament. As will be discussed, all 24 witnesses deposed that the current legal regime significantly contributes to the risk of violence experienced by women in the sex trade. Many of the Respondents witnesses also deposed that law enforcement led to a negative effect of displacement. 69 45. The diversity and length of experience of the experiential witnesses is extensive: Wendy

Harris has 20 years experience in the sex trade; 70 Linda Shaikh has 35 years experience; 71 Kara Gillies has worked in the trade for 22 years and, in her work with a sex worker association (Maggies), has interviewed over 100 indoor sex workers with respect to their working

Ibid., p. 166. Affidavit of Darlene Maurganne Mooney, JAR, Vol. 7, Tab 29, pp. 1689-1690, para. 16; Affidavit of Jody Patterson, JAR, Vol. 7, Tab 30, pp. 1836-1837, paras. 11, 15; Affidavit of Carol-Lynn Strachan, JAR, Vol. 8, Tab 32, p. 1869-1970, para. 9; Affidavit of Augustine Brannigan, JAR, Vol. 8, Tab 34, pp. 1967, 1971-1972, paras. 4, 14; Augustine Brannigan, Technical Report Victimization of Prostitution in Calgary and Winnipeg, (1994), JAR, Vol. 8, Tab 34(D), pp. 2176-2177; Deborah Brock, The Impact of Bill C-49 on Street Solicitation: A Summary (1989), JAR, Vol. 9, Tab 35(C), p. 2227; Eleanor Maticka-Tyndale et. al., Safety, Security and the Well-Being of Sex Workers, JAR, Vol. 12, Tab 45(B), p. 3147-3148; Affidavit of Frances Shaver, JAR, Vol. 24, Tab 55, p. 6814, para. 22. 70 Affidavit of Wendy Harris, JAR, Vol. 7, Tab 27, p. 1574. 71 Affidavit of Linda Shaikh, JAR, Vol. 8, Tab 31, p. 1862.
69

68

20

conditions; 72 Susan Davis has over 20 years experience; 73 Lauren Casey, 15 years; 74 Carol-Lynn Strachan, 29 years. 75 46. All of these witnesses provided evidence that supported the findings made by Himel J.

Below is a representative sample of their evidence: Wendy Babcock: Q. And I think you also state, is it correct, that youve never personally been the victim of violence? A. Q. No. What do you attribute that to?

A. I think I worked in safe conditions. Ive always worked with other people around. Ive always made sure that people know where Im going. At an escort agency, theres somebody that has all the information of the date that youre going to be with, so theyll take credit card information, ID, so theres a lot less chance of violence working indoors where there is a track record. Dates are a lot less likely to become violent if they know that somebody knows who they are and where that women is, where the worker is, and that somebodys going to be picking them up. 76 Susan Davis: I believe that working out of my home, or any other secure indoor location, is the safest work environment for me. In my own home, I am able to defend myself. I know the environment, I now where the phone is if I need to call for help, and I have someone with me when I see clients at night as an added measure of protection. I am able to negotiate the terms of the transaction beforehand, so there are no surprises I have experienced much fewer incidents of violence while working in my own private residence.77 Kara Gillies:

72 73

Affidavit of Kara Gillies, JAR, Vol. 6, Tab 24, pp. 1297, 1301. Affidavit of Susan Davis, JAR, Vol. 5, Tab 22, pp. 930-931 74 Affidavit of Lauren Casey, JAR, Vol. 26, Tab 58, p. 7423, para. 11. 75 Affidavit of Carol-Lynn Strachan, JAR, Vol, 8, Tab 32, p. 1865. 76 Cross-examination of Wendy Babcock, JAR, Vol. 4, Tab 20, p. 797. 77 Affidavit of Susan Davis, JAR, Vol. 5, Tab 22, pp. 935-936.

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[T]he safety risks with respect to indoor worksites is significantly less serious and frequent than outdoor street prostitution. With respect to the indoor worksites, even though they are illegal, they are by far the most economically viable and secure sites for women in the sex industry. I form this belief based on my conversations with hundreds of indoor sex workers, including those with former experience in street-based prostitution. In terms of safety, the set location provides the opportunity to work with colleagues and have someone else present on the premise if required. Further, other people know where the worker is located and will notice if they disappear unexpectedly. Also, women can control the numbers of people entering and occupying the space. 78 Wendy Harris My own experience with the sex industry has mainly been indoors. I have attempted to stay away from working on the streets. Through personal experience I believe that working on the streets is extremely dangerous to the safety of women and can and often does result in abuse such as rape, robbery and serious physical harm... I have heard numerous stories where women, out of fear of prosecution have moved out of their homes and on to the streets only to be viciously attacked. These instances include not only potential clients, but also individuals who feel that women on the streets deserve to be attacked. These incidences are perpetrated with weapons such as knives or crowbars and often leave the worker with severe injuries. 79 Darlene Maurganne Mooney: [W]hile engaged in the sex trade, I only worked indoors: collectively with other women, or arranged to meet clients at hotels. While working indoors, I did not experience physical harm, although I did experience bad dates. 80 Carol-Lynn Strachan: Having worked both indoors and outdoors in the sex trade industry, I am able to conclude that it is much safer for sex trade workers to work indoors. 81 Lauren Casey:
78 79

Affidavit of Kara Gillies, JAR, Vol. 6, Tab 24, p. 1301. Affidavit of Wendy Harris, JAR, Vol. 7, Tab 27, pp. 1574-1575. 80 Affidavit of Darlene Maurganne Mooney, JAR, Vol. 7, Tab 29, p. 1686. 81 Affidavit of Carol-Lynn Strachan, JAR, Vol. 8, Tab 32, p. 1870.

22

I worked indoors for 15 years and in that time, I did not experience even one violent incident with a client. The only time I experienced violence, it was not at the hands of a customer. 82 Linda Shaikh: Though my personal experience having worked both indoors and on the streets, I do verily believe that working on the street as a sex worker poses a much higher degree of danger of bodily harm than working indoors. As a sex worker I have run into many situations on the streets where I have been subjected to aggression, abuse and assaults. Working indoors, I have experienced only one occasion where I have been physically assaulted. In that instance however, a neighbor heard my cries and alerted the police I believe that the current legal regime also contributes to the violence and abuse because the law prohibits sex trade workers from working in indoor locations. In fact, the legal ramifications of working indoors are more serious than the ramifications of working on the streetFor most of my career I felt I had no choice but to work outdoors on the streets due to the legal ramifications of being convicted of bawdy house offences. I had to choose between my safety and my freedom. 83 4. 47. EMPIRICAL SUPPORT All of the expert witnesses for the Respondents deposed that safety could be enhanced by

moving indoors and by recruiting the assistance of third parties. Unlike the witnesses for the Appellants, all of the studies conducted by witnesses for the Respondents both experiential and expert were conducted in Canadian cities and most had participation by indoor sex workers. These studies may not have been exclusively focused on the issue of violence, as were Professor Lowmans studies; however, it is clear that the assertion by these witnesses of the relative safety of indoor locations is an informed conclusion reached after interviewing both street and indoor workers. The relevant studies are outlined in the following chart: 84 Study
82 83

Citation

Location

Population

Work Area

Affidavit of Lauren Casey, JAR, Vol. 26, Tab 58, p. 7423. Affidavit of Linda Shaikh, JAR, Vol. 8, Tab 31, pp. 1862-1863. 84 The studies of Dr. Lowman do not appear in this chart. They are addressed separately below.

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Susan Davis, From the Curb: Sex Workers Perspectives on Violence and Domestic Trafficking Kara Gillies, Bound By Law: How Canadas Protectionist Public Policies in the Areas of Both Rape and Prostitution Limit Womens Choices, Agency and Activities Jody Paterson, PEERS Survey of 57 Sex Workers Augustine Brannigan, Street Prostitution Assessing the Impact of the Law Augustine Brannigan, Technical Report Victimization of Prostitution in Calgary and Winnipeg Deborah Brock, Making Work, Making Trouble: Prostitution as a Social Problem Gayle MacDonald, Sex Workers in the Maritimes Talk Back Eleanor Maticka-Tyndale and Frances Shaver, Safety, Security and the WellBeing of Sex Workers Eleanor Maticka-Tyndale Licensing Sex Work: Public Police and Womens Lives Cecilia Benoit, Dispelling Myths and Understanding Realities Working Conditions, Health Status, and Exiting Experiences of Sex Workers Frances M. Shaver, Sex Work Police: An Integrated Approach Frances M. Shaver, Health, Security & Sex Work Policy Frances M. Shaver, Risk and Risk Management in Sex Work and Hospital Work Lauren Casey, Behind Closed Doors: Summary of Findings November 2008

Vol. 5, Tab 22(C) Vol. 6, Tab 24(A)

Six cities in British Columbia Halifax, Montreal, Ottawa, Edmonton, Toronto, Vancouver

112 sex workers

Indoor & Outdoor Outdoor

56 Sex workers

Vol. 7, Tab 30(B) Vol. 8, Tab 34(C) Vol. 8, Tab 34(D) Vol. 9, Tab 35(D) Vol. 11, Tab 42(B) Vol. 12, Tab 45(B) Vol. 12, Tab 45(C) Vol. 13, Tab 48(B)

British Columbia Calgary, Winnipeg, Regina Calgary, Winnipeg

57 Sex workers 70 sex workers & additional sources 16 sex workers & additional sources 2 sex workers

Indoor & Outdoor Outdoor

Outdoor

Toronto

Indoor

Halifax, Moncton, St. John Toronto, Montreal

66 sex workers 120 sex workers

> 90% Outdoor Indoor & Outdoor Indoor Indoor & Outdoor

Windsor Metropolitan Victoria

18 sex workers & additional sources 201 current and former sex workers 400+ sex workers 150+ sex workers 60 sex workers & additional sources 88 sex workers & additional sources

Vol. 24, Tab 55(E) Vol. 24, Tab 55(F) Vol. 24, Tab 55(K) Vol. 26, Tab 59(A)

San Francisco, Toronto, Montreal Three major Canadian Cities Montreal, Toronto

Outdoor Indoor & Outdoor Outdoor

Victoria

Indoor

48.

It is clear that the witnesses for the Respondent understand the limitations of current

empirical research on the sex trade and virtually all agreed that further research must be conducted on most facets of the trade. Professors Frances Shaver and Cecilia Benoit jointly produced scholarship on the issue of methodological limitations in this area in Sex Work Research: Methodological and Ethical Challenges. 85 Professor Benoit has discussed similar methodological limitations in Community-Academic Research on Hard-to-Reach Populations:
85

JAR, Vol. 25, Tab 56(I).

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Benefits and Challenges. 86 Another witness for the Respondents, Professor John Lowman, prepared a report in 2001 for the Department of Justice entitled Identifying Research Gaps in the Prostitution Literature. 87 49. The expert witnesses completed qualitative research and ethnographic studies with

diverse populations of sex workers and all of the witnesses reached the conclusion based upon their interviews that the law plays a significant role in the perpetuation of violence. The following quotes provide a representative sampling of the experts views: Augustine Brannigan: The criminal laws pertaining to sex work put women into difficult and risky situations. Women working as prostitutes, feel compelled to make hasty decisions (communicating laws), are made dependent on strangers in vehicles for their safety (bawdy house provisions), and go out each night without a security guard (living off the avails provisions). The street workers are thus placed in a position where they cannot ensure their own security or conduct their work in a safe location. 88 Gayle MacDonald: Our study indicates how continued criminalization of the sex trade increased the level and risk of violence against sex workers in a number of ways. We found that continued criminalization of sex work simply does not work if the goal of the legislation is either to eradicate or to contain sex work. The law fails to reduce the supposed nuisance of sex work because, in criminalizing both indoor and outdoor work, it gives sex workers no legal place to go. Sex workers continue to be subject to arrest, fines, or brief imprisonment. We have found that criminalization simply relocates the work to other settings, maintains or increased the level and threat of violence experienced by sex workers, and sustains stigmatization. 89 Cecilia Benoit:

86 87

JAR, Vol. 14, Tab 49(C). JAR, Vol. 23, Tab 53(H). 88 Affidavit of Augustine Brannigan, JAR, Vol. 8, Tab 34, p. 1967. 89 Affidavit of Gayle MacDonald, JAR, Vol. 11, Tab 42, p. 2772, para. 14.

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Many respondents said that the nature of the street environment prevented street workers from having any real control at all over their own personal safety, although they try to exert some degree of control over their choice of clientele. As one respondent put it: It would be a lot safer if you didnt have to stand outside and be on the street. Another stated that: Its just not safe for these girls out there, it just isnt. I just heard about another bad date. In contrast to street workers, those working indoors tend to experience somewhat safer working conditions. Many respondents reported feeling safer and less vulnerable working in escort agencies. As one respondent put it: On the street I had like three bad dates in one week one time. I worked escort for three years and I havent had one bad date. I think escort work is very safe. 90 50. Many of the witnesses in this case, both for the Appellants and the Respondents, had the

opportunity to testify before the House of Commons Standing Committee on Justice and Human Rights Subcommittee on Solicitation Laws (2003-2005). The Respondents witness, Libby Davies, was one of the MPs sitting on this committee. She provided the following statement in her affidavit as to the thrust of the evidence presented to the subcommittee: There is near unanimous agreement from all witnesses heard from, that the current status and regime of law enforcement pertaining to prostitution is unworkable, contradictory and unacceptable. It has created an environment of marginalization and violence, with negative impacts both on sex workers, and affected local communities. The current regime of law enforcement, particularly the communicating law, is harmful and further endangers sex workers. As such, continuing to do nothing to address this problem is becoming increasingly dangerous and unacceptable inaction will condemn many more sex workers to violence and death. 91 [Emphasis added.] 51. In providing this emerging empirical evidence, the witnesses for the Respondents never

suggested that the law was a direct cause of violence against sex workers. The witnesses approached the phenomenon from a multi-causal perspective. For example, when Professor
90 91

Affidavit of Cecilia Benoit, JAR, Vol. 13, Tab 48, pp. 3422-3423, paras. 17, 20. Affidavit of Libby Davies, JAR, Vol. 9, Tab 37, p. 2378.

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MacDonald was asked if the law is the source of stigmatization of sex workers, she responded The law contributes. There is no one source.92 Similarly, when Professor Maticka-Tyndale was asked questions about causality, she provided the following response: Q. Is it fair to say that in your recommendations you convey that the Criminal Code provisions do not enhance the safety of sex workers? A. That would be a very fair statement based on our research conclusions. Q. Do you suggest a causal link?

A. No, because causality is usually referenced on a single level, so individual factors causing other individual factors. Whereas we were when youre dealing with multiple levels, the Criminal Code is over here embracing the entire country, whereas were dealing with a layer on the individual level. We wouldnt say a causal link; we would say they contribute to. They dont cause, there are many contributing factors to health and safety: your individual actions, the community you work in, policing practices, the weather. So street workers working in a very cold environment have to deal with that, whereas street workers working in a balmy environment dont, et cetera. There are many factors that contribute, so we hesitate to use the word cause because its impossible to tease out the exact and precise connections, we use contributing factors instead, and I hope we were consistent in our vocabulary on that. 93 52. Professor John Lowman is a Professor at the School of Criminology at Simon Fraser

University. He has been engaged in a 30-year case study of prostitution in Vancouver and he has published extensively in the area. In 1984 he conducted the Vancouver Field Study of Prostitution on behalf of the Department of Justice to provide some background research for the Special Committee on Pornography and Prostitution (the Fraser Committee). The field study

92 93

Cross-examination of Gayle MacDonald, JAR, Vol. 11, Tab 43, p. 2847 ll. 14-19. Cross-examination of Eleanor Maticka-Tyndale, JAR, Vol. 12, Tab 46, p. 3229.

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examined many aspects of prostitution, prostitution law enforcement and social service provision. The study included 48 interviews with sex workers. 94 53. In 1987-88, Professor Lowman was asked, with Laura Fraser, to conduct one of five

regional studies as part of the Department of Justices review of the communication law, which had been enacted in 1985. The study, Street Prostitution: Assessing the Impact of the Law, 95 involved interviews with 45 sex workers, clients, managers, police, social service personnel, crown attorneys, defence counsel and residents in areas where street prostitution occurs, as well as a study of charges laid in the first 18 months of the new laws enforcement. The study also involved frequent counts of sex workers active on various strolls in Vancouver. 96 54. In 1995, again on behalf of Department of Justice, Fraser and Lowman performed an

exploratory study of violence against sex workers, one of five regional studies commissioned by the Department to investigate an apparent increase in violence against street prostitutes after passage of the communication law. The study, Violence Against Persons Who Prostitute: The Experience in British Columbia, involved interviews with key players, a victimization survey completed by 65 sex workers, a review of Vancouver Police records on sexual assaults against sex workers, a review of bad date lists compiled to identify perpetrators of violence against sex workers, and reviews of newspaper articles and the RCMP Violent Crime Unit database. 97

Affidavit of John Lowman, JAR, Vol. 15, Tab 51, pp. 4145-4146; Submission to the Subcommittee on Solicitation Laws of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, submissions of John Lowman, JAR, Vol. 18, Tab 51(J), p. 5128. 95 JAR, Vol. 16, Tab 51(G). 96 Affidavit of John Lowman, JAR, Vol. 15, Tab 51, p. 4146; Submission to the Subcommittee on Solicitation Laws of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, submissions of John Lowman, JAR, Vol. 18, Tab 51(J), p. 5128; Cross-Examination of John Lowman (Volume One), JAR, Vol. 21, Tab 53, pp. 6005-6006. 97 Affidavit of John Lowman, JAR, Vol. 15, Tab 51, p. 4146; Lowman, John & Fraser, J., Violence against Persons who Prostitute: The Experience in British Columbia, JAR, Vol. 18, Tab 51(H), p. 4816; Subcommittee on Solicitation Laws of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, submissions of John Lowman, JAR, Vol. 18, Tab 51(J), p. 5129.

94

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55.

Based upon his research, Professor Lowman asserts that the criminal law materially

contributes to violence against prostitutes 98 along with other causal factors such as poverty, drug addiction and lack of education. 99 In his supplementary affidavit, he explains that his analysis of Canadian prostitution law has been an attempt to identify the various causal processes by which criminal prohibition marginalizes prostitutes and, in so doing, exposes them to a greater risk of violence, ill health and exploitation. His analysis of prostitution law suggests that criminal law plays a causal role in violence against prostitutes by creating the conditions in which violence can flourish. Although the criminal law prohibition is not the direct cause of violence against prostitutes (i.e. the human being who wields the knife or fist is the direct cause of violence), his research suggests that criminal prohibition is a sufficient and indirect cause of violence because, by preventing sex workers from organizing safe work conditions, it plays a decisive role in creating opportunities for violence against prostitutes to occur. 100 56. One simple anecdote, which arose during Professor Lowmans cross-examination,

provides a cogent illustration of his view on the role of the law in the causal process leading to violence against street prostitutes. In 1998, Jamie Lee Hamilton established Grandmas House, a charitable society to help survival sex trade workers in the Downtown Eastside of Vancouver. At this time there were fears of a serial killer preying on prostitutes (ultimately leading to the arrest and conviction of Robert Pickton), so some sex workers chose to use Grandmas House to be able to conduct their business safely. In 2000 the house was raided and it closed shortly thereafter, forcing sex workers back to the street. In her defence, Ms. Hamilton challenged the constitutionality of the bawdy house law, but the charges were eventually stayed in 2004 and no

Cross-examination of John Lowman (Volume One), JAR, Vol. 21, Tab 53, p. 5895. Affidavit of John Lowman, JAR, Vol. 15, Tab 51, p. 4162-4163, para. 25; Cross-examination of John Lowman (Volume One), JAR, Vol. 21, Tab 53, p. 6060. 100 Supplementary Affidavit of John Lowman, JAR, Vol. 20, Tab 52, pp. 5736-5737.
99

98

29

determination was made on the constitutional issue. 101 It is also instructive to note Professor Lowmans responses in cross-examination to the suggestion posed by the Appellants that safe houses like Grandmas House will not reduce violence because the vast majority of street sex workers would not avail themselves of this option: Q. But would you not agree that these factors would continue even if the laws were repealed today? That is that in light of the skills, personalities, and lifestyles of certain women, not all women would be able to make a living as an escort service prostitute. Would you agree with that proposition? A. I would agree with the proposition and I would add, but, nevertheless, it would be possible for people like Jamie Lee Hamilton and Grandmas House to provide the infrastructure that these women cant afford in the name of saving lives. Q. the availability of such an option even in a decriminalized world would not eliminate the risk of potential predators, would it? A. The predator would still be there, but if the law is changed, the first significant barrier, the first significant material contribution to the danger that they face would be removed. That is a necessary step in trying to deal with the other issues, the women who may be left on the street and thus at risk. But without the first step being taken, i.e. the dealing with the problem created by the law, the second step becomes very problematic and difficult to take. 102 57. Finally, another illustration of the causal role of the law can be found in Professor

Lowmans response in cross-examination to a finding in a British study indicating that street workers in that jurisdiction were moving into indoor locations: Q. If I could direct your attention to page 1711 in the study, suggests that women are taking themselves off the street to work in

101

Supplementary Affidavit of John Lowman, JAR, Vol. 20, Tab 52, p. 5744; Cross-examination of John Lowman (Volume One), JAR, Vol. 21, Tab 53, pp. 5893-5894, 6070-6074. 102 Ibid., JAR, Vol. 21, Tab 53, pp. 6019, 6074.

30

indoor locations as locations that are generally safer and more tolerated by law enforcers. Is this not correct? A. That is highly likely in the British situation where a single prostitute working out of a premise is not susceptible to prosecution under bawdy house law, which is why they work with a maid rather than with another prostitute, the maid providing that safety, third party person. But here again you see the key role of the law in facilitating the move off-street because a woman can work in a single premise in Birmingham without running afoul of the law. If we were to do a similar change of law in Canada, one would be able to predict that you would see a greater movement off-street of certain kind of prostitutes, those who can afford the infrastructure, with a possibility that others would organize that infrastructure for those desperate and marginalized women on the Downtown Eastside who cannot pay for it themselves or they would find some mechanism to make street prostitution more safe by, for example, creating stalls where the business took place rather than allowing a woman to get into a car and go to a dark area where she is completely at the whims of a potential predator. 103 58. In cross-examination Professor Lowman stated that one of the most important features

of the work that I did from 1977, all the way through to 1995, is the study of displacement phenomena in relation to law enforcement efforts in prostitution. 104 Initially, Professor Lowman examined the phenomena of a rise in street prostitution in Toronto and Vancouver in the late 1970s as a result of the raids and closures of indoor prostitution venues two cabaret clubs in Vancouver in 1975, and many massage parlours on the Yonge St. strip in Toronto as a result of the 1977 slaying of Emmanuel Jacques. 105 Professor Lowman stated that conventional understanding attributes the rise in street prostitution to the Hutt decision in 1978, which imposed significant problems for the police in enforcing the soliciting law; however, it was not
103 104

Cross-examination of John Lowman (Volume Two), JAR, Vol. 22, Tab 53, pp. 6339-6340. Cross-examination of John Lowman (Volume One), JAR, Vol. 21, Tab 53, p. 5936; Supplementary Affidavit of John Lowman, JAR, Vol. 20, Tab 52, p. 5739. 105 Cross-examination of John Lowman (Volume One), JAR, Vol. 21, Tab 53, p. 5941; Lowman, John, The Folly of Criminalizing Juvenile Prostitution, JAR, Vol. 23, Tab 53(E), pp. 6616-6618; Lowman, John Vancouver Field Study of Prostitution Research Notes, JAR, Vol. 16, Tab 51(F), p. 4641.

31

so much the demise of the soliciting law as the results of the police efforts directed at the offstreet prostitution that contributed to the expansion of street prostitution in the mid-1970s. 106 59. With respect to Vancouver, Professor Lowman recounts how the 1984 nuisance

injunctions unintentionally displaced the sex workers from the West End into the residential neighbourhood of Mount Pleasant, and subsequent law enforcement initiatives to move these workers out of this neighbourhood intentionally displaced them into a more hazardous environment. When the main DES stroll was displaced into the residential area on the South side of Hasting Street, police and social workers relocated it in the commercial and industrial area on the north side by informing street-level sex workers that they would not be prosecuted if they worked North of Hastings. From 1995 through 2001 about 50 women went missing who worked this orange-light district, including the 26 women Mr. Pickton was charged with murdering.107 60. Although the Field Study was not designed to specifically study the incidents of violence

in the sex trade, Professor Lowman noted that this study provided him with the first indication of a serious problem of violence against sex trade workers. He found that 98% of street-involved women had been victims of violence from a bad date at least once while they were working. 108 61. In the 1989 evaluation of the communication law, Professor Lowman concluded that the

new provision had a short-lived impact on the levels of street prostitution in Vancouver based upon the head counts. 109 It was also concluded that the main effect was displacement of prostitutes to the other two primary prostitution strolls not the reduction in the overall amount

Lowman, John, Street Prostitution Control, Some Canadian Reflections on the Finsbury Park Experience, The British Journal of Criminology, Vol. 32, Winter 1992, No.1, JAR, Vol. 23, Tab 53(E), p. 6617. 107 Affidavit of John Lowman, JAR, Vol. 15, Tab 51, p. 4151. 108 Affidavit of John Lowman, JAR, Vol. 15, Tab 51, p. 4154, para. 22; Lowman, John Vancouver Field Study of Prostitution Research Notes (October 1984), JAR, Vol. 16, Tab. 51(F), pp. 4552-4556. 109 Lowman, John Street Prostitution: Assessing the Impact of the Law-Vancouver Research Section, Department of Justice, JAR, Vol. 17, Tab 51(G), p. 4760.

106

32

of street prostitution. 110 With respect to violence, Professor Lowman could not discern a trend from police records and bad trick lists as there was not enough information available, 111 but there was sufficient information to conclude that crimes against prostitutes are widespread.112 However, the analysis of bad date lists did demonstrate that 86% of violent acts occur when there was one client involved, and 98% of attacks occurred while working alone without a buddy. 113 62. Professor Lowman continued to monitor and track the geography of the prostitution

strolls in order to update the Department of Justice on the 1989 evaluation of the communication law. 114 During the course of this updating process, Professor Lowman contacted the Department to express concern over an apparent increase in violence against sex trade workers, and he was then commissioned to complete the 1995 study, Violence Against Persons who Prostitute: The British Columbia Experience. 115 63. From this study, Professor Lowman found that 77% of street-involved women said they

had experience violence (with an average of seven incidents per person) within the last 6 months. Of these incidents, 97% were with customers of people pretending to be customers. 116 He also found that 92% of homicide victims from the sex trade met their assailant on the street. 117 64. Professor Lowman found a differential rate of violence between on-street and off-street

venues supporting the assertion that indoor prostitution can be a significantly safer working

110 111

Ibid., p. 4760. Ibid., p. 4724. 112 Ibid., p. 4725. 113 Affidavit of John Lowman, JAR, Vol. 15, Tab 51, pp. 4152-4153, para. 16. 114 Ibid., p. 6023. 115 JAR, Vol. 18, Tab 51(H). 116 Affidavit of John Lowman, JAR, Vol. 15, Tab 51, p. 4154, para. 21. 117 Ibid., p. 4155, para. 24.

33

environment. One of his primary conclusions, with the supporting data, can be found in this excerpt from the report: 118 We find some support for the notion that street prostitution is relatively more dangerous when we examine what types of victimization our respondents have experienced when working on and off the street (Table 99). While working the street, a much larger proportion of respondents reported having been robed, sexually assaulted, beaten, strangled, and kidnapped, and were more likely to have reported being involved in an incident where a weapon was used, or being the victim of an attempted murder. The highest incidence of off-street victimization was in the categories refused condom, Threat/intimidation, and General harassment. It should be noted that because we asked respondents which kinds of victimization they had ever experienced as opposed to how many times they experienced various kinds of victimization, it is possible that the variations identified here reflect differences in the relative amounts of time respondents spend working on and off the street, not different rates of victimization/harassment. Table 99 Types of Offences/Harassment
On-Street (n=62) Count % of Responses 43 12.4 41 11.8 32 9.2 27 7.8 26 7.5 24 6.9 23 6.6 23 6.6 22 6.3 21 6.0 20 5.7 19 5.5 17 4.9 6 1.7 2 .6 348 100.0 Off-Street (n=22) Count % of Responses 11 20.6 9 15.7 2 4.1 1 2.0 7 14.7 3 6.1 2 4.1 2 4.1 3 6.1 4 8.2 1 2.0 1 2.0 2 4.1 1 49 2.0 100.0

General Harassment Threat/intimidation Had/use knife Dumped Refused condom Beating Robbery Sexual Assault Had/used gun Unwanted acts Kidnap/confine Strangling Other weapon Attempt murder Other Total

% of Cases 69.4 66.1 51.6 43.5 41.9 37.7 37.1 37.1 35.5 33.9 32.3 30.6 27.4 9.7 3.2 561.3

% of Cases 50.0 40.5 9.1 4.5 31.8 13.6 9.1 9.1 13.6 18.2 4.5 4.5 9.1 4.5 222.7

5.
118

CORROBORATIVE STUDIES

Lowman, John & Fraser, J., Violence against Persons who Prostitute: The Experience in British Columbia, JAR, Vol. 18, Tab 51(H), pp. 4934-4935.

34

65.

Professor Lowmans conclusions about the differential in violence in the sex trade was

consistent with the findings of the other expert witnessed called by the Respondents, and, more significantly, with the findings of numerous international studies that have attempted to assess the differential in violence based on location. For example, Church et. al. found a significant differential in violence in a study of 240 sex workers in England (125 indoor/115 outdoor:: eg. beaten 27% v. 1%; raped 22% vs. 2%. Plumridge and Abel 119 found a significant differential in a study of 303 female sex workers in New Zealand (225 indoor/78 outdoor): eg., threatened with violence 65% vs. 26%; raped 27% vs. 8%; physical assault 41% vs. 21%. Pyett and Warr, in a smaller study of 24 workers in Australia, reached the following conclusion: Legal brothels clearly provided the safest environment for sex workers, although some women were unable to maintain control over the sexual encounter when severely affected by drugs. The level of support provide by brothel managers contributed to the womens safety in regard to both sexual health and physical assault. Street workers were at much greater risk of coercion, threats, and physical assault by clients, had suffered more violence and experienced much poorer health, usually associated with drug use. 120 66. Perkins and Lovejoy reached a similar conclusion in an Australian study of 219 sex

workers: Most acts of violence against sex workers have occurred when the victim is most vulnerable, such as when she is alone, whether in her own premises, visiting a client in his home, or in a clients car. The call girl, along with the escort and the street workers, is in this potentially dangerous situation much more often then the brothel workers, who is usually within close proximity to her workmates, the receptionist or the manager. 121
119

Libby Plumridge & Gilian Able, A Segmented Sex Industry in New Zealand: Sexual and Personal Safety of Female Sex Workers (2001) 25 Australian and New Zealand Journal of Public Health 78, JAR, Vol. 19, Tab 51(T) 120 Precilla Pyett & Deborah Warr, Women at Risk in Sex Work: Strategies for Survival (1999) 35 Journal of Sociology 183, JAR, Vol. 19, Tab 51(U), p. 5481. 121 Roberta Perkins & Frances Lovejoy, Healthy and unhealthy life styles of female brothel workers and call girls (private sex workers) in Sydney (1996) 20 Australian & New Zealand Journal of Public Health 512, JAR, Vol. 30, Tab 64(M), p. 8772.

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67.

Brents and Hausback completed a study of violence in the legal brothel regime of

Nevada, where they concluded: There is strong indication from the interview, document analysis, and ethnographic data presented here that legal brothels generally offer a safer working environment than their illegal counterparts. Regulated brothels offer particular ways of dealing with pragmatic safety issues and minimizing actual violence, including violence passed from johns to prostitutes and back to johns though diseases, viruses, and infections. Nevada brothels offer specific mechanisms to protect workers via the ways transactions are organized, the ways technology is ordered, the visibility of customers, the bureaucratic relationship among customers, managers, and workers, and the cooperation with police based on the mere fact of their legality. All of these mechanisms work to eliminate systematic violence and to discourage an atmosphere of danger and risk that, as a mirror image of fact, is significant. 122 68. With respect to recent Canadian studies designed to examine working conditions in

indoor venues, a study prepared for the Law Commission of Canada, comparing the experiences of 14 indoor workers in erotic service establishments and 15 exotic dancers, found that sex workers have chosen to work in erotic service establishments because they perceived them as affording greater safety than other forms of sex work. 123 69. In 2007, Tamara ODoherty completed her Masters of Criminology thesis, Off-Street

Commercial Sex: An Exploratory Study 124 under the supervision of Professor Lowman. 125 Her research involved victimization surveys with women working in the middle and upper echelons of Vancouvers sex trade. Based upon 39 survey respondents and ten interview participants, she

Barbara Brents & Kathryn Hausbeck, Violence and Legalized Brothel: Prostitution in Nevada Examining Safety, Risk, and Prostitution Policy (2005) 20 Journal of Interpersonal Violence 270, JAR, Vol. 20, Tab 51(Z), p. 5571. 123 Erotic Service/Erotic Dance Establishments: Two Types of Marginalized Labour, JAR, Vol. 11, Tab 43(F), p. 3057. 124 Supplementary Affidavit of John Lowman, JAR, Vol. 20, Tab 52(A), p. 5746. The thesis research has been subsequently published: Tamara ODoherty, Criminalization and Off Street Sex Work in Canada (2011) 53 Canadian Journal of Criminology & Criminal Justice 217. 125 Cross-Examination of John Lowman (Volume 1), JAR, Vol. 21, Tab 53, pp. 6167-6168; Affidavit of John Lowman, JAR, Vol. 15, Tab 51, p. 4159, para. 30.

122

36

demonstrated that the incidence of violence in the off-street sex trade is dramatically lower than the incidence of violence for those working the streets. Whereas the vast majority of women working on the streets have experienced some form of violence, the vast majority of women working in massage parlours, escort services or as independent operators have not experienced any violence. To demonstrate the differential, she compared rates of violence among her indoor population with the rates of violence for street workers found in the 2001 Vancouver Street Trade Study by Leonard Cler-Cunningham. 126 Table 4: Comparison by Venue
Type of Victimization Venue Threats Threats with weapon Physical Assault Sexual Assault Kidnapping/confinement Theft (robbery) Refuse condom ODoherty (2007) Massage 28% 13% 17.4% 13% 8.7% 54.2% 28% Escort 29.2% 16.7% 25% 12.5% 20% 25% 37.5% N = 39 Independent 15.4% 7.7% 15.4% 11.5% 7.7% 12% 25.9% Cler-Cunningham & Christenson (2001) N = 183 Street 70.5% 44.5% 51.2% 45.8% 41.2% 53.7% 82.9%

70.

Expert witnesses for the Appellants and Respondents discussed the one and only study of

a comparative nature that does provide some evidence that levels of violence in an indoor setting may be as prevalent as the violence confronting street sex workers. In a study of 222 sex workers (it is not clear how many were indoor vs. outdoor), Raphael and Shapiro found that women indoors were frequent victims of violence and, in some instances, the type of violence was more serious and the levels higher than those experienced by women outdoors. 127 Both Professor Ronald Weitzer and Professor Lowman discounted the significance of this study for two reasons. First, the indoor venues chosen for the study were unusual in that the authors did not canvass the views of workers in the most prevalent off-street settings, i.e. massage parlours, body-rub
126 127

Supplementary Affidavit of John Lowman, JAR, Vol. 20, Tab 52(A), p. 5846. Violence in Indoor and Outdoor Prostitution Venues, JAR, Vol. 20, Tab 51(AC), p. 5627.

37

parlours and brothels. 128 Further, the authors did include as off-street settings a drug house (which by definition would be an exploitative setting) and escort and hotel services (out-call services which are not the equivalent of a secure indoor setting). 129 71. Second, Raphael and Shapiro candidly acknowledged that this research was also

designed within a framework of prostitution as a form of violence against women and not prostitution as a legitimate industry that women or men can choose as their job or career. 130 The authors note that every attempt has been made to interpret the data objectively,131 but one must not forget that Crown methodology expert Ronald Melchers indicated that one would have to be on guard in accepting findings made within the context of a politically-motivated study. 132 6. EVIDENCE OF THE ATTORNEYS GENERAL A. 72. Experiential Witnesses

It is respectfully submitted that the bulk of the evidence tendered by the Crown is not

responsive to the issues raised on this application. In terms of experiential witnesses, it should be noted that of the nine sex workers who testified for the Appellants, only four had any experience with in-call sex work. 133 In addition, the various police officers called by the Appellants had very limited experience in investigating indoor locations. 134 Police officers indicated that bawdy

Cross-Examination of John Lowman (Volume 2), JAR, Vol. 22, Tab 53, p. 6366; Affidavit of Ronald Weitzer, JAR, Vol. 30, Tab 64, p. 8532, para. 13; Cross-Examination of Ronald Weitzer, JAR, Vol. 31, Tab 65, pp. 90639065. 129 Violence in Indoor and Outdoor Prostitution Venues, JAR, Vol. 20, Tab 51(AC), p. 5624. 130 Ibid., p. 5623. 131 Ibid. 132 Cross-Examination of Ronald-Frans Melchers, JAR, Vol. 61, Tab 124, p. 17921 ll. 11-19. 133 Affitavit of T.D., EB, Vol. 1, Tab 6, pp. EB 236-237, para. 21; Affidavit of H.C., EB, Vol. 1, Tab 8, pp. EB 262-263, paras. 5-8, 10; Affidavit of K.C., EB, Vol. 1, Tab 10, pp. 282, paras. 6-8; Affidavit of Natasha Falle, EB, Vol. 1, Tab 1, p. EB 8, para. 23. 134 Cross Examination of Jim Morrissey, JAR, Vol. 34, Tab 79 p. 9797 l. 6 p. 9798 l. 1, p. 9803 l. 17 p. 9804 l. 6; Affidavit of Michelle Holm, JAR, Vol. 35, Tab 83, p. 10248, para. 23; Affidavit of Gene A. Bowers, JAR, Vol. 35, Tab 85, p. 10286, para. 4; Cross-examination of Oscar Ramos, JAR, Vol. 36, Tab 87, p. 10478 ll. 8-16, p. 10486 ll. 9-25; Cross-examination of Sonia Joyal, JAR, Vol. 36, Tab 89, p. 10600 ll. 9-12, p. 10655 ll. 12-20.

128

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house investigations were generally time consuming and expensive, and as a result, very few investigations are conducted in Canada. 135 73. The Appellants experts had conducted little empirical research, and of the research

conducted, the vast majority took place in foreign jurisdictions with a focus on street workers. The conclusions of these experts with respect to the nature and danger of indoor sex work is primarily an expression of opinion and not one based upon their research. 136 Much of their evidence is gathered from jurisdictions which bear little relationship to Canada, both culturally and legally (i.e. Mexico, Thailand, Philippines and South Africa), with populations recruited from agencies which deal with sex workers in distress women who had been trafficked and women found in hospitals, shelters and exiting agencies. 137 In fact, only two of the Appellants witnesses (Farley and Kennedy) conducted studies in Canada, and both were conducted with street workers from the Downtown Eastside of Vancouver the Pickton killing fields. 138 74. Although largely non-responsive to the issues, the Appellants evidence does actually

provide some support for the factual propositions raised by the Respondent. Some of the witnesses for the Appellants recognized that the enforcement of the law only resulted in displacement,
139

and that, despite assertions that contemporary policing focuses on

Affidavit of Gene A. Bowers, JAR, Vol. 35, Tab 85, p. 10300, para. 44; Affidavit of Oscar Ramos, JAR, Vol. 35, Tab 86, p. 10402, para. 46; Cross-examination of Eduardo Dizon, JAR, Vol. 37, Tab 92, p. 10764 l. 10 p. 10766 l. 1. 136 Cross-examination of Richard Poulin, JAR, Vol. 43, Tab 105, pp. 12465-12466; Cross-examination of Janice Raymond, JAR, Vol. 60, Tab 120, pp. 17587-17589; Cross-examination of Melissa Farley, JAR, Vol. 50, Tab 114, pp. 14715-14718. 137 Cross-examination of Janice Raymond, JAR, Vol. 60, Tab 120, pp. 17520-17534; Cross-examination of Richard Poulin, JAR, Vol. 43, Tab 105, pp. 12379-12382; Cross-examination of Melissa Farley, JAR, Vol. 60, Tab 114, pp. 14740-14750; Melissa Farley et. al., Prostitution and Trafficking in Nine Countries: An Update on Violence and Posttraumatic Stress Disorder, JAR, Vol. 49, Tab 113(B), pp. 14285-14289; Melissa Farley & Sungjean Seo, Prostitution and Trafficking in Asia, JAR, Vol. 49, Tab 113(I). 138 Melissa Farley et al., Prostitution in Vancouver: Violence and the Colonization of First Nations Women (2005), JAR, Vol. 49, Tab 113(E); Alexis M. Kennedy, Traumatic Stress in Prostitutes (2004), JAR, Vol. 46, Tab 108(A). 139 Cross-examination of Oscar Ramos, JAR, Vol. 36, Tab 87, p. 10441; Cross-examination of Kathleen Quinn, JAR, Vol. 38, Tab 97, p. 11155 l. 3 p. 11159 l. 13.

135

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compassionate enforcement without arrest, the police still chose to arrest street sex workers in order to temporarily move them from residential neighbourhoods. 140 In addition, some of the police witnesses recognized the safety enhancement features of working indoors. For example, Detective Jim Morrissey stated: Its definitely safer for the girls who are inside than the ones working on the street. Weve already discussed that, and I agree with that. 141 In addition, he noted that the licensing of sex work in Edmonton can serve to facilitate safety. 142 75. In speaking to the issue of the low numbers of bawdy house investigations and charges,

the police officers acknowledged that if they were receiving tips or information of brutal violence taking place in indoor venues, they would not hesitate to investigate and intervene. However, they are simply not receiving information of this nature when it comes to indoor venues. 143 76. It is also interesting to note that one of the few officers whose investigative focus has

been residential brothels, Michelle Holm, did not depose in her affidavit that indoor locations where equally as unsafe as street locations. Further, Sonia Joyal of the RCMP has had opportunities to speak to 25 indoor workers as part of her work with Project KARE, but these women did not approach project KARE because of violence or other trouble being experienced in their work. Rather, they spoke with the Corporal Joyal in order to provide her intelligence. 144

Affidavit of Detective Sgt. Howard Page, JAR, Vol. 34, Tab 81, p. 10010, para. 13; Affidavit of JoAnn McCartney, JAR, Vol. 35, Tab 82, p. 10056, para. 11; Affidavit of Detective Constable Michelle Holm, JAR, Vol. 35, Tab 83, pp. 10244-10246, para. 16; Affidavit of Detective Sgt. Gene Bowers, JAR, Vol. 35, Tab 85, pp. 10293-10295, paras. 25-30. See also: Cross-examination of Detective Constable Oscar Ramos, JAR, Vol. 36, Tab 87, p. 10441; Cross-Examination of Kathleen Quinn, JAR, Vol. 38, Tab 97, p. 11155 l. 3 p. 11159 l. 13. 141 Cross-Examination of Detective Jim Morrissey, JAR, Vol. 34, Tab 79, pp. 9870-9873; Cross-Examination of Detective Constable Oscar Ramos, JAR, Vol. 36, Tab 87, pp. 10506-10507; Cross-examination of Detective Constable Eduardo Dizon, JAR, Vol. 34, Tab 94, pp. 10765-10768. 142 Cross-examination of Detective Jim Morrissey, JAR, Vol. 34, Tab 79, p. 9879. 143 Cross-Examination of Detective Jim Morrissey, JAR, Vol. 34, Tab 79, pp. 9870-9873; Cross-Examination of Detective Oscar Ramos, JAR, Vol. 36, Tab 87, pp. 10506-10507; Cross-Examination of Detective Constable Eduardo Dizon, JAR, Vol. 34, Tab 94, pp. 10765-10768. 144 Cross-examination of Sonia Joyal, JAR, Vol. 36, Tab 89, pp. 10600-10601, 10640-10643.

140

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77.

Evidence supporting the proposition that indoor venues are a safer option for sex workers

can also be found in the evidence of experiential witnesses called by the Appellants. For example, two of the anonymous sex trade workers presented by the Appellants noted: On the street, it is physically dangerous. I have been raped, almost strangled to death, attacked while pregnant, and have to fight my way out of vehicles I personally have not known physical violence on the inside 145 I performed paid sex acts in apartments, houses, hotels and agencies, in cars and parking lots, and other places. Working in an agency can seem safer in some ways, but youre still alone with the dates and you have to be very careful not to get on the wrong side of whoever runs the place. 146 B. 78. Expert Witnesses

Before Himel J., the Respondents made extensive submissions on the lack of relevance of

the evidence tendered by the Appellants experts. 147 Based on these arguments, Himel J. concluded that many of had entered the realm of advocacy and had given evidence in a manner that was designed to persuade rather than assist the court. 148 Specifically, Himel J. found Dr. Farleys evidence to be problematic, finding that her advocacy appears to have permeated her opinions, 149 and her choice of language was at times inflammatory and detracts from her conclusions. 150 Himel J. went on to find that Drs. Raymond and Poulin also acted more like advocates than experts offering independent opinions to the court, 151 at times making bold, sweeping statements that were not reflected in their literature. 152

145 146

Affidavit of T.D., JAR, Vol. 33, Tab 72, p. 9684. Affidavit of P.M., JAR, Vol. 33, Tab 77, pp. 9748-9749. 147 Superior Court Factum of Bedford et al. at paras. 277-424. 148 Bedford v. Canada, AB, Tab 5, para. 482. 149 Ibid., para. 353. 150 Ibid., para. 354. 151 Ibid., para. 357. 152 Ibid.

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79.

The Appellants expert witnesses displayed a clear bias against the concept of voluntary

sex work; their testimony reflected a collective view of sex work as per se violent and exploitive. For example: Melissa Farley has stated that prostitution is, by definition, a violation of human rights 153 and that prostitution amounts to men paying for a woman for the right to rape her. 154 Mary Sullivan has asserted that legalized prostitution is government-sanctioned abuse of women. 155 Janice Raymond and Mary Sullivan are active members in the Coalition Against Trafficking of Women, whose philosophy statement is that all prostitution exploits women, regardless of womens consent. 156 Richard Poulin has asserted that violence is inherent to prostitution, notwithstanding any legal framework around it, 157 but in cross-examination he revealed that he is defining violence differently from its common usage, stating that violence is the systemic relationship of power involving domination over the other and that This form of domination is violence in itself. 158

80.

In addition to the potential taint of ideology, there were numerous problems with their

methodological approaches. Their research methodology often seemed designed to produce findings that confirmed the witnesses pre-existing perspective of sex work as inherently harmful, and there were numerous inaccuracies in their representation of the findings of other studies. For example: Melissa Farleys methodology has been the subject of serious criticism including allegations of misrepresenting data by a

153 154

Cross-Examination of Melissa Farley, JAR, Vol. 50, Tab 114, p. 14640 ll. 3-5. Melissa Farley, Prostitution: The oldest use and abuse of women Off Our Backs, May 1994, JAR, Vol. 50, Tab 114(B), p. 14857; Cross-Examination of Melissa Farley, JAR, Vol. 50, Tab 114, p. 14648 l. 3 p. 14651 l. 7. 155 What Happens When Prostitution Becomes Work?, Coalition Against Trafficking in Women, 2005, JAR, Vol. 52, Tab 117(H), p. 16019. 156 An Introduction to CATW, Coalition Against Trafficking in Women (CATW) website, http://www.catwinternational.org/about/index.php, 2008, JAR, Vol. 54, Tab 117(A), pp. 15931-15934 157 Affidavit of Richard Poulin, JAR, Vol. 40, Tab 102, p. 11387, para. 25. 158 Cross-Examination of Richard Poulin, JAR, Vol. 43, Tab 105, p. 12445 ll. 3-8, p. 12453 l. 23 p. 12457 l. 8

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coalition of 16 academics, as well as members of both the Scottish and New Zealand Legislatures. 159 Melissa Farley purports to diagnose Post Traumatic Stress Disorder in sex workers after ten minute interviews using a diagnostic tool that the International Society for Traumatic Stress Studies does not recommend be used for clinical use. 160 Melissa Farley has previously refused to release her questionaires for peer review, 161 but instead insists she needs to [protect] the validity of the research instrument 162 and will only produce her questionnaires to qualified individuals who request it directly. 163 In this case, she would only release her questionnaire upon cross-examination upon securing a court order to seal the document from public scrutiny. Both Melissa Farley and Janice Raymond have skewed the representative nature of their study participants by selecting sex workers who have had negative experiences in the industry, and have either exited or wished to exit the industry. Melissa Farley has also used sex work survivors as interviewers for her research. 164 Richard Poulin asserted that the average age of entry in prostitution was 14 without acknowledging that the majority of studies he relied upon were done with populations of only under-age prostitutes. 165 Richard Poulin referred in his affidavit to three serial killers preying on indoor sex workers in his affidavit, however, the sources he relied upon contain no information as to where any of the victims were killed. 166 . He also referred to a serial rapist

Cross-Examination of Melissa Farley, JAR, Vol. 50, Tab 114, p. 14770 l. 12 p. 14776 l. 22; Jan Maclod et. al., A Commentary on Challenging Mens Demand for Prostitution in Scotland: A Research Report Based on Interviews with 110 Men Who Bought Women in Prostitution 2008, JAR, Vol. 51, Tab 114(T); CrossExamination of Melissa Farley, JAR, Vol. 50, Tab 114, p. 14812 l. 8 p. 14818 l. 21; Answer to undertakings of Ronald Weitzer, JAR, Vol. 32, Tab 66, pp. 9397-9398; Ronald Weitzer, Flawed Theory and Method in Studies of Prostitution (2005) 11 Violence Against Women 934, JAR, Vol. 30, Tab 64(D), p. 8596; Ronald Weitzer, Rehashing Tired Claims About Prostitution: A Response to Farley and Raphael and Shapiro (2005) 11 Violence Against Women 971, JAR, Vol. 30, Tab 64(E), p. 8613. 160 Post Traumatic Stress Disorder Checklist (PCL), International Society for Traumatic Stress Studies (ISTSS), Trauma Resources: Media Resources, http://www.istss.org/org/resources/PCL.cfm, 2008, JAR, Vol. 51, Tab 114(O); Cross-Examination of Melissa Farley, JAR, Vol. 50, Tab 114, p. 14668 ll. 8-10, p. 14752 l. 14 p. 14753 l. 15; Supporting Answering Affidavit of Paul Henry De Wet in Ellen Jordan, Louisa Johanna, Francina Broodryk, Christine Louise Jacobs v. The State, Constitutional Court of South Africa, JAR, Vol. 31, Tab 64(V), p. 8966, para. 17. 161 Affidavit of Ronald Weitzer, JAR, Vol. 30, Tab 64, p. 8531, para. 12. 162 Cross-Examination of Melissa Farley, JAR, Vol. 50, Tab 114, p. 14774 l. 19 p. 14775 l. 22. 163 Affidavit of Melissa Farley, JAR, Vol. 49, Tab 113, p. 14268, para. 141. 164 Cross-examination of Janice Raymond, JAR, Vol. 60, Tab 120, p. 17581; Cross-Examination of Melissa Farley, JAR, Vol. 50, Tab 114, p. 14652 ll. 9-23. 165 Affidavit of Richard Poulin, JAR, Vol. 40, Tab 102, p. 11388, para. 28; Cross-examination of Richard Poulin, JAR, Vol. 43, Tab 105, pp. 12369-12379. 166 Undertakings provided by Richard Poulin, Supp. JAR, Vol. 1, Tab 175, pp. 26405-26406.

159

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attacking sex workers in massage parlours in the United States, however, he acknowledged that the only evidence to support his claim was a single incident involving one masseuse in her apartment. 167 Janice Raymond asserted that some members of the Dutch Parliament ceased to support the legalization of brothels after realizing that legalization reinforces the oppression of women, however the article that Raymond relied upon only discusses the view of a single parliamentarian. 168 Melissa Farley has asserted there was a 400% increase in organized crime in New Zealand following decriminalization, however, this number is based on the impressions of only two persons interviewed by Farley. 169

C. 81.

Methodology Expert

Professor Ronald Melchers is a Professor of Criminology at the University of Ottawa

who was retained by the Appellants to examine three empirical studies conducted by John Lowman in stating his conclusions. 170 He was frank in conceding that Im not an expert in prostitution research and I have no desire to become one. 171 Professor Melchers was blunt in his assessment of the Lowman studies: [T]he empirical observations supporting his conclusion are invalid, unreliable, and not convincingly free from bias; they are inadequately and poorly analyzed and most likely statistically insignificant; and any variations over time are trivial to the extent they can be reliably known. 172 82. In a supplementary affidavit, Professor Lowman provided a response to the Melchers

critique. In Professor Lowmans view the critique missed the mark primarily because Professor

167

Answers to undertakings provided by Richard Poulin, Supplementary Application record, Vol. 1, Tab 175, p. 26404; Gendar, Alison and Rouen, Ethan, Crime Serial rapist who preyed on prostitutes busted for masseuse assault Daily News: New York Crime, 7 March 2008, Supp. JAR, Vol. 1, Tab 175(I). 168 Cross-examination of Janice Raymond, JAR, Vol. 60, Tab 120, pp. 17494-17495. 169 House of Commons, Minutes of Proceedings and Evidence of the Subcommittee on Solicitation Laws and Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, March 2005, JAR, Vol. 50, Tab 114(G), p. 14893; Cross-Examination of Melissa Farley, JAR, Vol. 50, Tab 114, p. 14696 l. 13 p. 14698 l. 10. 170 Affidavit of Ronald Frans-Melchers, JAR, Vol. 61, Tab 122, p. 17773. 171 Cross-Examination of Ronald-Frans Melchers, JAR, Vol. 61, Tab 124, p. 17899. 172 Affidavit of Ronald Frans-Melchers, JAR, Vol. 61, Tab 122, pp. 17774-17775.

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Lowman employed qualitative research techniques, whereas Professor Melchers expertise lies in the use of quantitative research techniques. It is respectfully submitted that this Honourable Court need not address the qualitative versus quantitative issue, nor is it necessary to address the thrust and content of Professor Melchers critique. His critique is irrelevant because he has asked the wrong question and assessed the wrong conclusion. It is apparent that Professor Melchers work was designed to cast doubt on the assertion that the Criminal Code provisions on prostitution cause the endangerment of street prostitutes (emphasis added). 173 83. However, in cross-examination, it was made clear that Professor Lowman was not

asserting a direct causal connection between the 1985 law and increasing violence. As stated earlier, his position is that the law materially contributes to violence along with other causal factors. In Lowmans view, the law prevents sex workers from taking obvious safety measures by placing legal obstacles in the path of workers seeking these protective measures. When Professor Melchers was asked in cross-examination to comment of Professor Lowmans conclusion that the law operates as an obstacle to safety in the workplace, he became far more tentative and uncertain about his critique: Q. To really bring this to a head, if you look at paragraph 70 following from 68, you have a quote from Lowman, his main conclusion, and this, if I may ask you, is the main source of departure, the real departure where he says: the main conclusion of the analysis presented here is that the prohibition and stigmatization of prostitution are the main obstacles to creating safer working conditions for prostitutes? A. I honestly dont know how to answer that question. Im repeating it from Lowmans report, I dont state any opinion about it. This statement here is not that the prohibition and stigmatization of prostitution endangers prostitutes, its a more nuanced and more precise statement. I do know that this is what his reasoning points to, and I understand his reasoning. I honestly cant tell you if this is whats happening or not because, again, I dont know this area.
173

Affidavit of Ronald Frans-Melchers, JAR, Vol. 61, Tab 122, p. 17774.

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Q. So your disagreement would be more if Professor Lowman was to couch his conclusion that the law causes or endangers the prostitute, thats where you part company, but when he says it in this more nuanced way youre a but more agnostic, fair? A. I think he hasnt met a burden of proof of causality. This is a different issue. I dont know if hes met a burden of proof of causality in this case. I simply cant give you an opinion on this statement. It requires knowledge that I dont have. 174 84. Beyond the problem of Professor Melchers assessing the wrong question (i.e. does the

law directly cause harm?) it is submitted that the Melchers critique is not helpful because he chose not to review and assess any of the evidence presented by other social scientists which Professor Lowman claimed provided support for his conclusions and evaluation. Consistent with his statement Im not an expert in prostitution research and I have no desire to become one, 175 Professor Melchers chose not to review any of the other evidence presented in this case or any of the international studies relied upon by John Lowman and appended to his affidavit. 176 7. 85. GOVERNMENT DEBATES AND REPORTS SINCE 1972 In light of the fact that Himel J. found multiple problems with the expert evidence, she

relied extensively on government reports for proof on a balance of probabilities of the laws causal contribution to the deprivation of security. 86. The act of selling sexual services has never been illegal in this country. In Canadas first

Criminal Code in 1892, a provision was included deeming the activities of a prostitute to be a form of vagrancy (known as the vag c charge). Section 207(I) deemed every woman a vagrant

174 175

Cross-Examination of Ronald Frans-Melchers, JAR, Vol. 61, Tab 124, pp. 17946-17947. Ibid., p. 17899. 176 Ibid., pp. 18002-18003, 17932-17934.

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who being a common prostitute or nightwalker is found in a public place and does not, when required, give a good account of herself. 177 87. This provision went unchanged for 80 years, until 1972 when Bill C-2 was given Royal

Assent and section 195.1 soliciting was introduced into the Code. 178 On December 28, 1985, the solicitation provision was repealed and replaced by the communication offence. 88. In introducing the communication provision in the 1980s, the Minister of Justice

indicated that the legislation was only directed to the problem of street nuisance and that the complicated, social problem of prostitution and pornography will be dealt with in the new year. 179 In fact, when the bill passed the Senate, the Senate Committee noted that the Minister has indicated that Bill C-49 is a first step to deal with an urgent problem, and that further amendments concerning prostitution will be forthcoming in the new year. We welcome this pledge by the Minister, and would urge that the other amendments be brought forward as soon as is practically possible. The Committee further said that they had serious concerns about Bill C49, however, they were prepared on balance, to approve it without amendment in view of the provisions for review which are included, and having regard to the assurances of the Minister of Justice that further legislation dealing with other aspects of prostitution will be forthcoming. 180 89. From 1985 until the present, there has been no further law reform, but there has been a

uniform and consistent theme in the various government debates and reports concluding that the
The Criminal Code 1892, JAR, Vol. 65, Tab 141, p. 19182. It should be noted that the term soliciting was taken from the U.K. Street Offenders Act, 1959: Minutes of Proceedings and Evidence of the House of Commons Standing Committee on Justice and Legal Affairs, Issue No. 5 (9 May 1972), JAR, Vol. 67, Tab 150(B), p. 19929; however, British law did not have an absolute prohibition on moving indoors, as the law allows for a single sex worker and an assistant or maid to work from an indoor location: Report of the Special Committee on Pornography and Prostitution, JAR, Vol. 71, Tab 154(B), p. 20997; Cross-examination of John Lowman (Volume Two), JAR, Vol. 22, Tab 53, pp 6281-6283; Singleton v. Ellison, [1895] 1 Q.B. 607; Abbot v. Smith, [1964] 3 All ER 762 (Crown Ct.). 179 Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-49, JAR, Vol. 73, Tab 155(I), p. 21713. 180 Report of the Standing Senate Committee on Legal and Constitutional Affairs on Bill C-49, JAR, Vol. 73, Tab 155(N), pp. 21806, 21808.
178 177

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current laws are ineffective and are leading to greater harm than good. In 1985 the Fraser Committee warned that the fact that we have special laws surrounding prostitution does not, however, result in the curtailing of all the worst aspects of the business, or in affording prostitutes the same protection as other members of the public.181 Since this time, every other government-commissioned report has consistently reached the same conclusion; that our laws provide no safe context for its operation. 182 90. Himel J.s conclusions find strong support from Parliamentary debates and in the

research studies commissioned by the government in the past twenty-five years. In 1998 the Federal/Provincial/Territorial Working Group reported that results of the research and the consultations suggest that the two objectives of harm reduction and violence prevention could most likely occur if prostitution was conducted indoors. 183 In 2006, the Subcommittee on Solicitation Laws reported that numerous studies have shown that the communication law has not adequately reduced the incidence of street prostitution or even the social nuisance associated with its practice but has instead served to move prostitution activities from one place to another, and in so doing, has made those selling sexual services more vulnerable. 184 The Subcommittee also concluded that living on the avails was too broad in scope since it encompasses their employers and security guards, individuals who are essential in ensuring the prostitutes safety. 185

181

Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution Volume 2, JAR, Vol. 71, Tab 154(B), p. 20910 182 Ibid., p. 21808. 183 Federal/Provincial/Territorial/Working Group on Prostitution- Report and Recommendations in respect of Legislation Policy and Practices Concerning Prostitution-Related Activities, 1998, JAR, Vol. 79, Tab 160, p. 23899. 184 House of Commons, Report of the Standing Committee on Justice and Human Rights, The Challenge of Change: A study of Canadas criminal prostitution laws (December 2006), JAR, Vol. 82, Tab 164, p. 24967. 185 Ibid., p. 21051.

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91.

Other examples of this recurring and consistent theme of the laws contribution to the

deprivation of security of sex workers are too numerous to list in this factum; other relevant excerpts from the government debated and reports have been included in the Respondents Compendium Vol. I: Government Debates and Reports 1985 Present. 186 8. 92. INTERNATIONAL EVIDENCE Justice Himel noted that the evidence on this application shows that a number of foreign

jurisdictions over the past 20 years have implemented laws decriminalizing prostitution by varying degrees, with an intention to minimize harms to prostitutes. 187 Based upon these international developments, Himel J. concluded that the communication provision no longer constitutes a minimal impairment of rights. 188 93. The international evidence also demonstrated two additional important points. First, the

evidence shows that working indoors with third party assistance is significantly safer than working alone on the streets. Second, the evidence shows that the lifting of criminal prohibitions on bawdy house and living on the avails does not inexorably lead to a whole host of societal harms (i.e. involvement of children, organized crime, trafficking, and expansion of the trade). 94. Some government reports from the various jurisdictions provide glowing endorsements.

For example, the report of the Queensland Crime and Misconduct Commission indicated that brothels there provide the safest and healthiest environments for sex workers and their clients, compared with those who give or receive prostitution services on the street or in private.189 Other reports contain more tentative endorsements. For example, government reports in The

186

It should be noted that the excerpts do not include any statements made in committee by the witnesses to this case, by other sex workers, and other sex worker associations. 187 Bedford v. Canada, AB, Tab 5, para. 473. 188 Ibid., para. 481. 189 Regulating Prostitution: An Evaluation of the Prostitution Act 1999 (QLD), Crime and Misconduct Commission, December 2004, JAR, Vol. 27, Tab 61(D), p. 7792.

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Netherlands indicate that the new legislative regime is beginning to yield positive benefits: Changes in the regulated sector are only visible to a limited extent, but the field is certainly in movement. Physical working conditions would appear to be changing for the better. 190 95. Whether tentative or glowing, the government reviews all indicate some positive

developments in terms of sex worker safety without any corresponding increase in societal harm. A complete listing of the relevant excerpts from these reports can be found in the Respondents Compendium Vol. II: International Developments and Corroborative Studies.

PART III ISSUES & THE LAW

1. 96. EVALUATION OF EVIDENCE It is respectfully submitted that Himel J. did not commit any error in her approach to

assessing the voluminous body of evidence placed before her. Her approach was thorough and careful, and she made express findings about the evidentiary shortcomings of the evidence when appropriate. It is important to recognize that in its materials in the court below, the Attorney General of Canada asked the court not to exclude evidence on the basis of Mohan, but rather to assign the evidence little weight. Himel J. did exactly what the Appellants asked of her.
Superior Court Factum of the Attorney General of Canada at paras. 150, 175 Bedford v. Canada, AB, Tab 5, para. 352

97.

Because the Appellants are unable to cast doubt on Himel J.s factual findings with

respect to safety precautions and the ineffectiveness of the communication provision, they have chosen to raise specious concerns about the integrity of the fact-finding process undertaken by the court. The Appellants assert that Himel J. did not properly understand her gatekeeper role and failed to make specific findings with respect to each expert witness and the probative value of all their opinions; however, this assertion, even if correct, is academic and inconsequential as
190

Lifting the ban on brothels, Prostitution in 2000-2001, JAR, Vol. 48, Tab 112(B), p. 13865.

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it does not undercut, or even address, the reality that there was a voluminous and diverse body of admissible and credible evidence to support the factual findings made in the court below. A. 98. Common Sense

Although the policy issues surrounding many aspects of the sex trade are controversial,

divisive and the subject-matter of endless debate, it must be remembered that the factual issues raised in this application are far more simple: can safety be enhanced by moving indoors, recruiting assistance and communicating with clients? In light of the simple nature of these factual questions, it is important not to overlook the role of common sense in their resolution. Scientific and empirical inquiry will usually play a critical role, but, in some circumstances, common sense should come into play if science has yet to provide a conclusive resolution. For example, in RJR McDonald the Court needed to reach a factual finding as to whether advertising increased consumption of a product (i.e. cigarettes). The scientific studies presented to the Court were not resolute or determinative of the issue and the Court relied upon the powerful common sense observation that companies would not spend millions on advertising if they did not believe that it would increase consumption of their products.
RJR McDonald v. Canada (Attorney General), [1995] 3 S.C.R. 199 at paras. 84, 184

99.

Scientific study of the sex trade is fraught with methodological problems as the trade is a

hard to reach population for the purposes of statistical study. 191 Nonetheless, the empirical data presented in this case strongly supports the findings of Himel J., especially when assessed in light of the experiential evidence of sex workers and the findings of various government bodies. In reviewing her findings, it is important to remember that the Supreme Court of Canada has noted that predictions respecting the ramifications of legal rules upon the social and economic
The technical limitations on statistical analysis of data relating to hard to reach populations was subject to extensive review in the court below; the expert witnesses were in agreement on these limits. See Superior Court Factum of Bedford et al. at paras. 123-127.
191

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order are not matters of precise measurement, and are often the product of a mix of conjecture, fragmentary knowledge, general experience and knowledge of the needs, aspirations and resources of society, and other components.
RJR McDonald, supra at para. 67

B. 100.

Standard of Review

The Attorney General of Canada notes that the standard of review emerging from Housen

v. Nikolaisen is correctness for questions of law, palpable and overriding error for questions of fact, and for questions of mixed fact and law it depends on where the error lies along a spectrum between fact and law. As a statement of general principle the Respondents agree with the Appellants; however, it is respectfully submitted that the Appellants err in characterizing all findings and conclusions made by Himel J. as questions of mixed fact and law, warranting review on a standard of correctness. The Appellants mistakenly seek a form of review on this appeal which is wide-ranging and tantamount to a de novo hearing. However, it is submitted that the primary findings made by Himel J. with respect to safety-enhancing options and the relative safety of indoor versus outdoor sex work are pure questions of fact for which the Appellants are unable to show any palpable and overriding error.
Factum of the Attorney General of Canada at para. 74 Housen v. Nikolaisen, [2002] 2 S.C.R. 235

101.

It is recognized that the findings with respect to the effectiveness of the communication

provision relate to questions of mixed fact and law and, on the spectrum between fact and law, this question resides closer to the legal side. In addition, the findings of Himel J. with respect to the laws causal contribution in law to impairment of security raise a legal question. Accordingly, it is conceded that these last two issues are to be assessed on the standard of

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correctness; however it is submitted that the findings and conclusions on these two issues easily withstand review no matter how exacting the standard may be. C. 102. Deference

In a veiled attempt to re-litigate this application upon a de novo review of every finding

reached by Himel J., the Appellants suggest that absolutely no deference should be given to the judgment below because the judgment was based solely on legislative facts arising out of a paper record. Although it is recognized that deference to a trier of fact has its strongest and most relevant application with respect to adjudicative facts presented by viva voce evidence, the Appellants contention that Himel J.s lengthy and carefully-reasoned judgment should be afforded no deference is not in accord with the law and, in effect, relegates the role of the Superior Court judge on a paper application to a mere gatekeeper of the evidence to be reviewed de novo by an appellate court. 103. With respect to the fact that this application proceeded on the basis of a paper record,

the comments of Laskin J.A. are apposite: The principle of appellate deference to a trial judges fact-finding and inference-drawing applies even when the entire trial record is in writing. That is so because the principle of deference is grounded in more than a trial judges ability to see and hear the witnesses. Deference recognizes that even on a written record, the trial judge lives though the trial wile a court of appeal reviews the record only though the lens of appellate review. Deference also preserves the integrity of the trial process, maintains the confidence of litigants in that process, reduces the number and length of appeals and therefore, the cost of litigation, and appropriately presumes that trial judges are just as competent as appellate judges to resolve disputes justly.
FL Receivables Trust 2002-A (Administrator of) v. Cobrand Foods Ltd. (2007) 85 O.R. (3d) 561 (C.A.) at paras. 44-46

104.

It is acknowledged that legislative facts are not assessed on appeal with the same level of

deference as for adjudicative facts; however, this does not mean that absolutely no deference is 53

to be afforded to a comprehensive and detailed judgment of a Superior Court judge. As Linden J.A. noted in dissent (but not on this point): While findings of legislative fact are not entitled to the same level of deference as findings of adjudicative fact, such findings are still entitled to respect appellate courts must still be sensitive to the fact that the trial judge has had the advantage of hearing competing expert testimony first hand, and that a case such as this necessarily involves a large body of documentary and viva voce evidence which an appellate court, by its very nature, will not be able to fully canvas.
Lavoie v. Canada (2000), 174 D.L.R. (4th) 588 (F.C.A.) at paras. 73-74

105.

The Attorney General of Ontario submits that Himel J. did not need to become

embroiled in the resolution of controversial policy questions and did not need to make detailed factual findings on the basis of competing and credible experts because the judge should have focused on an entirely different question: whether the government has shown a reasoned apprehension of harm or reasonable basis for its policy choice. In other words, Ontario asserts that if deference has a role to play in this case it should have been Himel J. deferring to Parliaments policy choices.
Factum of the Attorney General for Ontario at para. 24

106.

It is respectfully submitted that the different question posed by the Attorney General of

Ontario has no relevance in this context. The question of whether the government has a rational basis for its policy choice is a relevant consideration in demonstrating a rational connection between law and objective under s. 1 of the Charter (e.g. Butler, supra). In addition, this question has relevance in the context of a s. 7 claim in which an applicant is challenging Parliaments authority to criminalize certain conduct on the basis that Parliament does not have a valid objective in enacting the prohibition (e.g. Malmo-Levine, supra).

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107.

Parliaments decision to criminalize is entitled to deference in terms of its purported

objectives, but this deference does not extend to the means chosen to achieve the objective. Last year, this Honourable Court drew a distinction between social science evidence that went towards the existence of a rights-violation (in that case, discrimination) and evidence that went towards a s. 1-like justification for threshold violations. In cases where the legislative fact evidence related to the existence of a violation as distinct from whether that violation was justified the Court was skeptical that similar deference should apply: In my opinion, the fact that the government may be able to provide a basis for its policy choice should not determine the fundamental question of whether s. 5(2) in fact has a discriminatory effect on the respondents. Rather, it is up to the tribunals and courts who are tasked with determining whether a legislative provision is discriminatory to make the necessary findings based on their assessment of the whole of the evidence before them. [Emphasis added.]
Tranchemontagne v. Ontario (Director, Disability Support Program) (2010), 102 O.R. (3d) 97 (C.A.) at paras. 150-157

108.

In this case, the evidence was not adduced for s. 1 purposes, but rather to determine

whether a threshold violation of s. 7 has occurred. The relevant question is not whether the government had a rational policy choice in enacting the legislation. Rather, it is whether, as a factual matter, the laws actually do impinge on sex workers s. 7 interests. This is not a question on which deference is owed to Parliament. Deference is owed to the first-instance court. D. 109. The Fact-Finding Process

The Attorney General of Canada asserts that Himel J. did not properly exercise the role

of gatekeeper in respect of the expert evidence. This assertion has little or no relevance in the context of an application before a judge alone, especially when the parties did not raise any objections to the admissibility of evidence and invited the judge to assign weight to the expert evidence as she saw fit. The gatekeeper role has been primarily developed in the context of the 55

criminal jury trial. The risks identified by this court in Abbey consumption of time, prejudice and confusion are serious concerns where there is a judge acting as a filter for evidence going to a lay jury. However, when the gatekeeper is also the trier of fact, and the evidence is, by the parties own account, admissible, there is little practical difference between these concerns and the considerations that would go to ultimate reliability and weight. Whether framed as excluding evidence as inadmissible or assigning it no weight, Himel J. clearly approached her gatekeeper role sensibly and appropriately.
Factum of the Attorney General of Canada at para. 84 R. v. Abbey (2009), 97 O.R. (3d) 330 (C.A.) at para. 90 R. v. J.-L.J., [2000] 2 S.C.R. 600 at para. 47

110.

Ultimately, the Appellants argument is that Himel J. failed to provide adequate reasons

for assigning weight to the evidence of various experts. The standard for such a claim is high. The Appellants must demonstrate that Himel J.s reasons, while extensive and detailed, are nevertheless so inadequate as to prevent meaningful appellate review. It is not necessary for reasons to show how a decision was arrived at, only why it was arrived at. When considering these issues, a reviewing court must look not only at the judges reasons, but also to the surrounding context of the evidence and trial and the submissions of the parties.
R. v. Sheppard, [2002] 1 S.C.R. 869 R. v. R.E.M., [2008] 3 S.C.R. 3 at paras. 16-17

111.

Himel J.s reasons were exemplary given the monumental task she was assigned.

Presented with a voluminous record, it is simply unreasonable to demand that she set out in detail the specific grounds on which she assigned each and every experts opinion a particular level of weight. The Supreme Court has held as much, stating that a trial judge need not detail his or her finding on each piece of evidence or controverted fact, so long as the findings linking the evidence to the verdict can be logically discerned. Similarly, as this Court has said, trial

56

judges are under no obligation to recite every witnesss evidence in coming to [her] conclusions and as long as there was credible evidence which [she] must have accepted to come to [her] conclusions, this Court should not be quick to dissect that evidence in minute detail.
R. v. R.E.M., supra at para. 20 Peloso v. 304255 Ontario Ltd. (1981), 14 B.L.R. 29 (Ont. C.A.) at para. 3

112.

The Appellants claim that they are left without an understanding of what concerns Himel

J. had with respect to various experts rings hollow. The parties devoted extensive portions of their factums below to the issue of the credibility and reliability of the experts. The issue was given significant attention during oral argument. The reasons of Himel J. are a clear reflection of these submissions. For example, Himel J. expressed the concern that many of the experts on the experiences of foreign jurisdictions had ventured into the realm of advocacy. 192 This was a clear reference to a limited subset of the experts: Doctors van de Pol, Raymond, Sullivan (both Mary and Barbara), Farley and Weitzer.
Superior Court Factum of Bedford et al. at paras. 276-330 Superior Court Factum of the Attorney General of Canada at paras. 150-187 Bedford v. Canada, AB, Tab 5, paras. 100-103, 181-182

113.

Himel J. also expressed concern that some of the experts focused on issues that were

incidental to the case at bar, such as trafficking, sex tourism and child prostitution. This criticism reflected the Respondents argument below that the evidence of Doctors Farley and Raymond was simply non-responsive to the constitutional claim being raised. In addition, Himel J. criticized some experts for making bold assertions without properly outlined bases for their claims and for being unwilling to qualify their opinions in the face of new facts provided. This is the exact criticism raised by the Respondents to the expert opinion of Dr. Farley.
Bedford. v. Canada, AB, Tab 5, paras. 182-183 Superior Court Factum of Bedford et al. at paras. 21, 276, 283-295

192

Bedford v. Canada, AB, Tab 5, para. 182.

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114.

In light of the concerns she had respecting the evidence of the experts, Himel J. relied on

the many comprehensive government studies that were put before her. It was based on her review of the evidence as a whole that she made her amply supported findings of fact. 115. Finally, in light of the fact that Himel J. relied primarily on government reports to arrive

at her findings, the Attorney General of Canada now argues that she erred in doing so as government reports cannot be tested by way of cross-examination for the truth of their contents and because these reports can only be relied upon to elucidate legislative objectives and not causality. It is submitted that this argument simply cannot be sustained in light of the consistent and routine reliance, by both Crown and Court, upon government reports for the purpose of elucidating legislative objectives and to provide evidence of the effects of legislation (causality). Even a cursory review of Supreme Court jurisprudence in the Charter era reveals extensive reliance on government reports to establish a wide array of legislative facts. 193
Bedford v. Canada, AB, Tab 5, paras. 184, 352-358 Factum of the Attorney General of Canada at para. 92

E. 116.

Reasonable Hypotheticals

Justice Himel concluded that as a result of the voluminous evidentiary record she did

not find it necessary to find a deprivation of personal security based upon reasonable
193

Consider the following examples: In R. v. Butler, [1992] 1 S.C.R. 452, the Court relied on the Fraser Report and the MacGuigan Report to elucidate legislative purpose and the effects of viewing pornography (pp. 484, 493, 513514); in R. v. Malmo-Levine; R. v. Caine, [2003] 3 S.C.R. 571, the Court relied on the Le Dain Report and reports of the Senate Special Committee on Illegal Drugs and the House of Commons Special Committee on Non-Medical Use of Drugs for discerning legislative purpose, demographics of marijuana users, and the effects of marijuana use (paras. 3, 21, 44, 55-56, 58, 195-196); in Moge v. Moge, [1992] 3 S.C.R. 813, the Court relied on three Statistics Canada reports, the 1990 Department of Justice Evaluation of the Divorce Act, and the 1990 Women and Poverty Revisited report with respect to the demographics of single mothers and the economic impact of divorce (pp. 854856, 863-864); in R. v. Gladue, [1999] 1 S.C.R. 688 the Court relied upon the 1967 report Indians and the Law, the 1987 Canadian Sentencing Commission report, a report of the House of Commons Standing Committee on Justice and Solicitor General, a 1997 Federal/Provincial/Territorial report on population growth in prisons, and the five-year review of the Corrections and Conditional Release Act in evaluating the disproportionate impact of the criminal justice system on Aboriginal persons (paras. 55-59); in Reference re: Unemployment Insurance Act (Can.), ss. 22 and 23, [2005] 2 S.C.R. 669, the Court relied on the Rowell-Siros Report, the Gill Report, the Cosineau Report, the Boyer Report and the Forget Report to reach conclusions about the systemic discrimination of women under the Unemployment Insurance regime (paras. 19-20, 31, 64, 72).

58

hypotheticals. It is respectfully submitted that use of reasonable hypotheticals is an alternate mode of demonstrating the unconstitutional impact of an impugned law, and therefore, regardless of how one assesses the probative value of the voluminous evidentiary record, in this case it is entirely reasonable to hypothesize that some sex workers will choose to compromise their security in an effort to comply with the contradictory demands of the law.
Bedford v. Canada, AB, Tab 5, para. 365

117.

Although the Supreme Court of Canada has warned that constitutional issues should not

be argued in an evidentiary vacuum and that a constitutional challenge be fully animated by the relevant adjudicative and legislative facts, the Court has also permitted challenges to laws to proceed on the basis of speculation and hypothesis relating to how the law could potentially violate Charter rights. The reasonable hypothetical methodology was first used in order to demonstrate that a mandatory minimum sentence could constitute cruel and unusual punishment with respect to a hypothetical accused. However, it has since been applied to other s. 7 claims relating to full answer and defence and overbreadth (but not vagueness challenges). Demonstrating that a law is unconstitutional in terms of its effects on the basis of its potential application and operation is an acceptable mode of proof unless the hypotheticals are farfetched, remote or marginally imaginable.
Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086 at 1101 MacKay v. Manitoba, [1989] 2 S.C.R. 357 at 361-362 R. v. Smith, [1987] 1 S.C.R. 1045 R. v. Morrissey, [2000] 2 S.C.R. 90 at paras. 50-53 R. v. Heywood, [1994] 3 S.C.R. 761 at para. 62 R. v. Mills [1999] 3 S.C.R. 668 at paras. 39-42 Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031 R. v. Goltz, [1991] 3 S.C.R. 485 at 505-506 Mussani v. College of Physicians and Surgeons of Ontario (2004), 74 O.R. (3d) 1 (C.A.) at para. 75

118.

It is respectfully submitted that in challenging the legislative means to achieve a state

objective, whether by invoking arbitrariness, overbreadth or gross disproportionality, it is

59

necessary for the Court to undertake a proportionality analysis. The Supreme Court of Canada has noted that constitutional adjudication by means of reasonable hypotheticals is necessary and ideally suited for the assessment of proportionality: Proportionality analysis involves an assessment of whether a law, the terms of which are not vague, applies in a proportionate manner to a particular fact situation. Inevitably, courts will be required to compare the law with the facts. In that situation, the use of reasonable hypotheticals will be of assistance, and may be unavoidable (Goltz, supra, at p. 515)
Ontario v. Canadian Pacific Ltd., supra at paras. 80-82

2. 119.

THE THRESHOLD ISSUE UNDER S. 7 LIBERTY & SECURITY The threshold question under s. 7 of whether s. 210 (bawdy house), s. 212(1)(j) (living on

the avails) and s. 213(1)(c) (communication) deprive the Respondents and those similarly situated of life, liberty or security of the person has already been addressed by the Supreme Court of Canada. In the 1990 Prostitution Reference, the Court considered the constitutionality of what are now ss. 210 and 213(1)(c): With respect to the first component, there is a clear infringement of liberty in this case given the possibility of imprisonment contemplated by the impugned provisions.
Reference Re: ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 at 1140

120.

In addition, it is respectfully submitted that Himel J. was correct in concluding that the

impugned provisions also operate to deprive the Respondents of security of the person. The Supreme Court has clearly held that state interference with bodily integrity and serious stateimposed psychological stress could trigger a restriction of security of the person.
Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 at 587-588 R. v. Morgentaler, [1988] 1 S.C.R 30 at 56 R. v. Parker (2000), 146 C.C.C. (3d) 193 (Ont. C.A.) at paras. 93-97, 105-111 R. v. Hitzig (2003), 177 C.C.C. (3d) 449 (Ont. C.A.) at para. 94

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121.

The Appellants do not question the conclusion that the impugned provisions operate as a

deprivation of liberty and security; however, they take the position that the causal link between the law and the deprivation of security is too remote or tenuous to ground a claim under s. 7. To reach this conclusion, they both misread the relevant case-law and misunderstand the nature of the interests raised by this challenge. 3. 122. CAUSAL CONNECTION The parties all agree, as did Himel J., that there must be a sufficient connection between

state action and a harm to a Charter-protected interest before the government becomes responsible for the result. The disagreement between the parties has to do with the nature of the sufficient connection test and whether Himel J. erred in concluding that it was met.
Bedford v. Canada, AB, Tab 5, para. 287 Factum of the Attorney General of Canada at para. 99

123.

The Attorney General of Canada argues on appeal that there are two discrete branches to

the sufficient connection test: the first, based on the Morgentaler-Rodriguez line of cases, holds that state interference with essential life choices can give rise to a violation of s. 7 interests. The second, based on Blencoe, Burns, Suresh and Khadr, requires that, when the proximate cause of harm to a constitutionally protected interest is a private actor, the state may still be held responsible if the government action is active and central to the deprivation. Ontario largely adopts Canadas position, but introduces concepts of causation that are traditionally based in substantive criminal law.
Factum of the Attorney General of Canada at paras. 101-102 Factum of the Attorney General of Ontario at para. 46

124.

The Respondents position is that there is only one test to be applied: that of sufficient

connection and that the standard of sufficiency is necessarily a contextual one. Its requirements will vary depending on the nature of the right being asserted, the type of government conduct in

61

question, the proximate source of the deprivation, and all other relevant considerations. The case law, relied upon by the Appellants as apparently establishing a strict test, simply provides specific examples of when a sufficient connection does or does not exist in a particular context. 125. However, even accepting the Appellants stricter formulation of the test, the Respondents

submit that Himel J. was correct in concluding that there was a sufficient connection between the impugned provisions and a risk of deprivation of sex workers security of the person. A. 126. Interference with Essential Life Choices

Inherent in s. 7 of the Charter is the notion of personal autonomy. A criminal prohibition

that interferes with an individuals ability to make essential life choices respecting their own physical or psychological integrity must be in accord with the principles of fundamental justice.
R. v. Morgentaler, supra at 56, 171 Rodriguez v. British Columbia, supra at 588 PHS Community Services Society v. Canada (Attorney General) (2010), 314 D.L.R. (4th) 209 (B.C.C.A.) at para. 41, leave to appeal granted [2010] S.C.C.A. No. 49 Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791 at para. 124

127.

In this appeal, the Appellants argue that this line of jurisprudence has no application

because any harms caused to sex workers come from third party sources and that the choice to engage in the sale of sex is a purely economic decision, not an essential life choice. As mentioned in the Overview, this assertion grossly mischaracterizes the nature of the rights claim raised in this case. This case is no more about a constitutionally protected right to engage in prostitution then Morgentaler was about a constitutionally protected right to abortion free from all state interference. Parliament can and in some respects, does regulate the sex industry without running afoul of the Charter. However, when government regulation orchestrates, encourages or sustains danger to the physical safety of those engaged in lawful conduct, the regulation constitutes a deprivation of security attributable to state action.
Factum of the Attorney General of Canada at paras. 102, 110 Factum of the Attorney General of Ontario at paras. 48-49

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Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016 at para. 26

128.

In Morgentaler, the dilemma facing pregnant women by the operation of the Criminal

Code was described aptly in the reasons of Beetz and Estey JJ.: If an act of Parliament forces a pregnant woman whose life or health is in danger to choose between, on the one hand, the commission of a crime to obtain effective and timely medical treatment and, on the other hand, inadequate treatment or no treatment at all, her right to security of the person has been violated. This describes the dilemma facing sex workers. The impugned provisions force sex workers to elect between breaking the law in order to protect themselves or taking inadequate (working outcall without the assistance of third parties) or no protective steps at all. A sex worker who wishes to remain safe must either engage in conduct labeled as criminal by Parliament or else accept the risk inherent in complying with the legislatures dictates. Surely this is not a constitutionally acceptable dilemma. A right to security of the person necessarily encompasses a right to engage in strategies that ameliorate dangers to life or health without fear of criminal sanction.
R. v. Morgentaler, supra at 81, 90-91

129.

Canada argues that this line of jurisprudence has no application in the present appeal

because the private parties are the proximate source of the infringement to the security of the person. The case law simply does not support such a contention. Sopinka J., speaking for the majority in Rodriguez, dismissed a similar argument made by the Federal Government: I do not accept the submission that the appellants problems are due to her physical disabilities caused by her terminal illness and not by governmental action. There is no doubt that the prohibition in s. 241(b) will contribute to the appellants distress if she is prevented from managing her death in the circumstances which she fears will occur. [Emphasis added.]
Rodriguez v. British Columbia, supra at 584

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130.

In this sense, the instant case is analogous to the PHS decision, which related to the

interaction between Vancouvers Insite safe injection facility and the criminal prohibitions contained in the Controlled Drugs and Substances Act. Although the British Columbia Court of Appeal disposed of the case on the basis of interjurisdictional immunity, a majority of the panel also found that the possession and trafficking offences implicated drug users s. 7 interests: In this case, the application of s. 4(1) of the CDSA would have the effect of interfering with the liberty of the personal respondents and those who are similarly situated by foreclosing a choice to minimize the potentially life-threatening hazards of overdose and other serious and life-threatening illnesses though the health services offered at Insite. In this case, the trial judge found as a fact that Insites health services and harm reduction policy prevents death by overdose. Canada argues that any deprivation of life to Insite users is not attributable to state action but to their choice and the manner in which to use the drugs. However, this submission ignores the Supreme Court of Canadas rejection of a similar causal connection argument raised in Morgentaler and Rodriguez. Canadas submission also ignores the finding of fact by the trial judge that the claimants addiction is an illness. Their illness does not mean that the claimants are incapable of choice, but rather than their ability to choose is seriously diminished by their addiction.
PHS Community Services Society v. Canada (B.C.C.A.), supra at paras. 42 (per Rowels J.A.), 263 (per Smith J.A.)

B. 131.

Third Party Harms

The Respondents recognize that, generally speaking, the proximate cause of violence

against sex workers will be private third parties. The Appellants correctly recognize that, even in this type of situation, if there is a sufficient connection between state action and the ultimate harm to a constitutional interest, the state cannot evade Charter review. 132. Canadas position is that government liability for third party conduct will only arise if the

third party is acting as an agent of the state (based on Blencoe), the government involvement is 64

active and central to the deprivation (based on Khadr) or the state conduct is a necessary precondition to the deprivation (based on Burns and Suresh). Ontario styles the test as requiring an integral and proximate connection to the foreseeable risk of harm. This position is predicated on a fundamental misreading of the relevant case law, and the conflation of the question of what is necessary to make out a claim with the question of what is sufficient to do so.
Factum of the Attorney General of Canada at paras. 100-101 Factum of the Attorney General of Ontario at para. 41

133.

As the Attorney General of Ontario concedes, the complaint in Blencoe was rejected not

on causal grounds, but on the basis that the claimants s. 7 interests were not implicated in the first place. That said, the obiter statements by the Supreme Court do provide assistance in discerning what level of connectedness would have been required had the delay in the human rights process engaged s. 7. The Court stated that there was a requirement for a significant connection between the state action and the deprivation, and that something more than showing that the state act might reasonably be expected to contribute to the constitutional infringement was needed.
Factum of the Attorney General of Ontario at para. 40 Blencoe v. British Columbia (Human Rights Commission). [2000] 2 S.C.R. 307 at paras. 64, 70

134.

The issue of sufficient connection was first formally before the court in Burns, a case

dealing with the constitutionality of extradition to face the death penalty. The court found that Canada would be responsible for the risk of the death penalty being imposed because the extradition decision was a necessary link in the chain of causation to that potential result. From this passage, the Appellants seek to transform the sufficient connection test into one approaching but-for causality. However, in order to do this, they must re-cast the holding of Burns from the finding of a sufficient causal connection to a finding of a necessary one. This interpretative re-casting finds no support in the case law.

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United States v. Burns, [2001] 1 S.C.R. 283 at para. 54

135.

The same comments apply to Suresh. This case dealt with deportation to face a risk of

torture. Again, the Supreme Court stated the test for implicating state responsibility as one of a sufficient causal connection. The Appellants are simply wrong in asserting that the Court established a requirement that governmental action be a necessary precondition to the ultimate harm before the state is responsible. The passage that the Appellants rely on undercuts their own position by expressly leaving open that lesser forms of connectedness may be sufficient: At least where Canadas participation is a necessary precondition for the deprivation and where the deprivation is an entirely foreseeable consequence of Canadas participation, the government does not avoid the guarantee of fundamental justice merely because the deprivation in question would be effected by someone elses hand. [Emphasis added.]
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at para. 54

C. 136.

Legislative vs. Non-Legislative State Acts

Part of the contextual exercise of locating a sufficient connection requires an

examination of the nature of the state conduct. One aspect of the Morgentaler/Rodriguez line of jurisprudence that distinguishes it from the third party harm cases relied on by the Appellants is that both Morgentaler and Rodriguez were challenges to legislation, while Blencoe, Burns, Suresh and Khadr were all challenges to non-legislative acts of state. 137. This is a critical distinction to draw when considering whether a sufficient connection is

made out in a given case. When a claimant seeks a s. 24(1) remedy based on non-legislative state acts, it is often easy to think in terms of traditional causality. Ministers make decisions, civil servants execute orders, and chains of causation follow. However, when the state act in question is a legislative provision, the logic of causality does not apply in its traditional manner.

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A provision of the Criminal Code is not an act and produces no effects on its own. The impact of legislation is by definition indirect. 138. The challenge brought by the Respondents, unlike every case relied upon by the

Appellants to deny a sufficient connection, is a challenge to legislation. The Supreme Court and provincial appellate courts (including this Honourable Court) have invalidated legislation on the basis of proximate harms caused by private actors without recourse to the language of precondition or necessary link. 139. For example, in Vriend v. Alberta, the Supreme Court found the exclusion of sexual

orientation from the list of prohibited grounds of discrimination under Albertas human rights legislation violated s. 15 of the Charter. Before the Court, Alberta took the position that if any distinction is made on the basis of sexual orientation that distinction exists because it is present in society and not because of the [statute]. In other words, Alberta claimed that discrimination against gays and lesbians was caused by private conduct and could not be imputed to the state. Cory J., for the majority, rejected this reasoning: [T]he respondents contention that the distinction is not created by law, but rather exists independently of the IRPA in society, cannot be accepted. It is, of course, true that discrimination against gays and lesbians exists in society. The reality of this cruel and unfortunate discrimination was recognized in Egan. Indeed it provides the context in which the legislative distinction challenged in this case must be analyzed. The reality of societys discrimination against lesbians and gay men demonstrates that there is a distinction drawn in the IRPA which denies these groups equal protection, the very protection they so urgently need because of the existence of discrimination against them in society. It is not necessary to find that the legislation creates the discrimination existing in society in order to determine that it creates a potentially discriminatory distinction.
Vriend v. Alberta, [1998] 1 S.C.R. 493 at paras. 75, 84

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140.

An analogous situation arose in the Dunmore case, which dealt with the exclusion of

agricultural workers from Ontarios labour relations legislation. The claimants argued that, absent inclusion in the statutory regime, they could not effectively exercise their associational rights under s. 2(d) of the Charter. At trial, Sharpe J. (as he then was) found that there was no violation because any anti-associational activities were the product of private employers, not any state act.
Dunmore v. Ontario, supra at para. 8

141.

Bastarache J., for the majority of the Supreme Court, concluded otherwise. In his view,

while any negative reaction to employees attempts to form employment associations would come from private actors, this could not be separated from the regime created by the legislation that permitted this to occur. The legislation rendered any associational right illusory by de facto empowering employers to punish employees for exercising it. It was this orchestration of a situation in which private actors could harm the claimants constitutional interests that subjected the legislation to Charter review: [I]t is not a quantum leap to suggest that a failure to include someone in a protective regime may affirmatively permit restraints on the activity the regime is designed to protect. The rationale behind this is that underinclusive state action falls into suspicion not simply to the extent it discriminates against an unprotected class, but to the extent it substantially orchestrates, encourages or sustains the violation of fundamental freedoms.
Dunmore v. Ontario, supra at paras. 22, 26 Fraser v. Ontario (Attorney General) (2008), 92 O.R. (3d) 481 (C.A.) at para. 41, 107, revd on other grounds 2011 SCC 20

142.

The reasoning employed in these cases is not limited to ss. 2 or 15 of the Charter. It

applies with equal logic to claims under s. 7 as demonstrated by Morgentaler, Rodriguez and Chaoulli. Most recently, the British Columbia Court of Appeal struck down a municipal by-law that banned the erection of shelters in city parks on the basis that it violated s. 7. The claim,

68

brought on behalf of the homeless population of Victoria, was based on evidence that sleeping outdoors without adequate protection from the elements which included some form of shelter contributes to a variety of health risks, some of which are potentially fatal. Both the Municipality and the Province argued that there was no state action sufficiently connected to the health problems of homeless persons as to attract Charter scrutiny. They argued that the by-law did not cause the claimants homelessness or any associated health risk. The Court of Appeal rejected this claim, noting that there was no basis to require that government legislation be the sole cause of a Charter deprivation. A direct linkage could be drawn between the legislation and the enhanced risk of harm. This was enough to impute the enhanced risk of harm to the state.
Victoria (City) v. Adams (2009), 313 D.L.R. (4th) 29 (B.C.C.A.) at paras. 12-25, 44, 47, 86-89

143.

Where, as in this case, an act of Parliament substantially orchestrates, encourages or

sustains the violations of fundamental freedoms by private actors, the legislation must be subjected to Charter scrutiny. That Parliament may not intend this outcome is immaterial. Parliament no more intends to harm sex workers than the Ontario legislature intended to see agricultural workers be punished for associating, the Alberta legislature intended to see gays and lesbians face discrimination, or the Victoria City Council intended homeless citizens to die in parks. When legislation produces a regime that structurally supports the perpetuation of Charterinfringing conduct by private actors, the state simply cannot wash its hands of responsibility. 4. 144. LEGISLATIVE OBJECTIVES In light of the fact that the s. 7 fundamental justice arguments raised in this case call into

question the means chosen by Parliament to achieve its objectives, it is essential to properly identify the state objective underlying each of the impugned provisions. 145. It is submitted that Himel J. correctly identified the legislative objectives as follows:

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I find that the objectives of the bawdy-house provisions for the purpose of prostitution are combating neighbourhood disruption or disorder and safeguarding public health and safety The living on the avails provision, s. 212(1)(j) is aimed at preventing the exploitation of prostitutes and profiting from prostitution by pimps The Supreme Court of Canada has established that the communicating offence has as its purpose controlling the social nuisance associated with street prostitution.
Bedford v. Canada (Attorney General), AB, Tab 5, paras. 242, 259, 278

A. 146.

A Proper Understanding of Constitutionally Valid Objectives

It is respectfully submitted that the impugned provisions cannot be grounded or justified

upon the basis of an evaluation of the moral worth of the act of selling sexual services. Although the Supreme Court has concluded that Parliament can validly take action to protect and preserve core values, in the modern era it no longer has authority to enact laws based solely on the values of a moral majority. The rejection of legal moralism as a valid foundation for the enactment of criminal law was expressed in the context of a challenge to the pornography provisions of the Criminal Code: [T]o impose a certain standard of public and sexual morality, solely because it reflects the conventions of a given community, it is inimical to the exercise and enjoyment of individual freedoms, which form the basis of our social contract. D. Dyzenhaus, Obscenity and the Charter: Autonomy and Equality (1991) 1 C.R. (4th) 367 at p. 270, refers to this as legal moralism, of a majority deciding what values should inform individual lives and then coercively imposing those values on minorities. The prevention of dirt for dirts sake is not a legitimate objective which would justify the violation of one of the most fundamental freedoms enshrined in the Charter.
R. v. Butler, [1992] 1 S.C.R. 452 at 492 R. v. Caine; R. v. Malmo-Levine, [2003] 3 S.C.R. 571 at paras. 115-122

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147.

The rejection of legal moralism can be see most clearly in the dramatic re-fashioning of

the elements of the offence of keeping a common bawdy house for the purposes of indecency by the Supreme Court in 2005. With respect to the question of whether a sex club for swingers can be characterized as a bawdy house, the Court replaced the traditional community standards test for determining indecency with a harm-based test grounded in secular values. It is submitted that both the letter and spirit of this 2005 decision leads to the conclusion that the sex trade offences must be justified on the basis of social harm and not on the basis of moral objection to the trade itself.
R. v. Labaye, [2005] 3 S.C.R. 728 at paras. 14, 32-33, 37, 60

148.

In light of the rejection of legal moralism and the development of a harm-based analysis

adopted in the sex club cases, it is submitted that the state objectives underlying the impugned provisions can be simply stated. Reducing or eliminating social and street nuisance are the twin objectives supporting the communication offence. Preventing exploitation is the objective of all the pimping offences including living on the avails, and controlling common nuisance is the goal underlying the bawdy house prohibition. In the modern era, the impugned provisions can no longer be seen as proper legislative tools for imposing a code of sexual morality on Canadians. 149. Himel J. was aware of the need to avoid legal moralism in her construction of state

objectives, and this modern aversion to legal moralism is the basis for her rejection of old common law pronouncements that the bawdy house provisions are designed to prevent moral dissolution or corruption. B. 150. Legislative Objectives Communication (s. 213(1)(c))

Himel J. was correct in concluding that the state objective underlying the street

prostitution offences is narrow in scope. As is clear from all of the government debates and reports since 1972, the enactment of s. 213(1)(c) was designed to be an interim measure to deal 71

with a perceived increase in street prostitution. As was stated by the Minister of Justice in explaining the purpose of the enactment the bill is addressed to the problem of street prostitution. It is not addressed to the whole social problem of prostitution As I have said before, the complicated, social problem of prostitution these issues are going to be dealt with in the new year.
Minutes of the Proceedings and Evidence of the Legislative Committee on Bill C-49, JAR, Vol. 73, Tab 155(1), p. 21713

151.

The limited objective underlying s. 213(1)(c) offence was confirmed by the Supreme

Court in the Prostitution Reference. A clear majority of the Court concluded that the prostitution laws were designed to protect against street and social nuisance (i.e. public visibility), and as stated by Dickson C.J., the legislation is aimed at taking solicitation for the purposes of prostitution off the streets and out of public view. Only Lamer J. (as he then was) concluded that the enactment has a more expansive objective that extended to the additional objective of minimizing the public exposure of an activity that is degrading to women, with the hope that potential entrants in the trade can be deflected at an early stage. The following excerpts capture the conclusions of the court with respect to the critical issue of the relevant state objectives: Dickson C.J. (LaForest and Sopinka JJ. Concurring) Like Wilson J., I would characterize the legislative objective of s. 195.1(1)(c) [now s. 213(1)(c)] in the following manner: the provision is meant to address solicitation in public places and, to that end, seeks to eradicate the various forms of social nuisance arising from the public display of the sale of sex. My colleague Lamer J. finds that s. 195.1(1)(c) is truly directed towards curbing the exposure of prostitution and related violence, drugs and crime to potentially vulnerable young people, and towards eliminating the victimization and economic disadvantage that prostitution, and especially street soliciting, represents for women. I do not share the view that the legislative objective can be characterized so broadly. In prohibiting sales of sexual services in public, the legislation does not attempt, at least in any direct manner, to address the exploitation, degradation and subordination of women that are part 72

of the contemporary realities of prostitution. Rather, in my view, the legislation is aimed at taking solicitation for the purposes of prostitution off the streets and out of public view. Public solicitation for the purposes of prostitution is closely associated with street congestion and noise, oral harassment of nonparticipants and general detrimental effects on passers-by or bystanders, especially children. In my opinion, the eradication of the nuisance-related problems caused by street solicitation is a pressing and substantial concern Wilson J. (LHeureux-Dub Concurring) Lamer J. finds that the legislatures objective goes beyond preventing congestion in the streets and sidewalks; it has the additional objective of restricting the entry of young girls into an activity that is degrading to women and is associated with drugs, crime and physical abuseWhile I do not disagree with my colleague that prostitution is, for the reasons he gives, a degrading way for women to earn a living, I cannot agree with his conclusion that s. 195.1(1)(c) of the Code attempts to address that problem. I have concluded that the submissions made to the court by the majority of counsel are correct and that the fundamental concern attempted to be addressed in s. 195.1(1)(c) is the social nuisance arising from the public display of the sale of sexThe legislature clearly believes that public sensitivities are offended by the sight of prostitutes negotiating openly for the sale of their bodies and customers negotiating, perhaps somewhat less openly, for their purchase. The reality, in other words, is accepted and permitted. Neither prostitution nor solicitation is made illegal. But the high visibility of these activities is offensive and has harmful effects on those compelled to witness it, especially children. This being the legislative approach to prostitution, it forecloses, in my view, any suggestion that in s. 195.1(1)(c) Parliament intended to stamp out all the ills and vices that my colleague sees as flowing from prostitution. The provision addresses only one narrow aspect of prostitution, namely, solicitation in public places.
Reference Re ss. 193 and 195.1(1)(c) of the Criminal Code, supra at 1134-1135, 1191-1194, 1209-1211 R. v. Marceau (2010), 77 C.R. (6th) 70 (Que. C.A.) at para. 72

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152.

The Attorney General of Ontario appears to argue that the state objectives should be

expanded to include preventing the normalization of demeaning portrayals 194 and the promotion of human dignity and equality, 195 and both Attorneys-General baldly assert that the impugned provisions, including the communication offence, operate as a package designed to protect those engaged in prostitution. 196 There is absolutely no evidentiary foundation from which to draw an inference that Parliament intended to expand its objectives beyond nuisance (ss. 210, 213(1)(c)) and exploitation (s. 212(1)(j)). In particular, it is clear that the enactment of communication in 1985 was a short-term response to a perceived expansion in street prostitution as a result of the Hutt decision. Based upon the legislative history, it is impossible to conceive of the impugned provisions operating together as a unified strategy to denounce and deter degrading conduct.
Hutt v. The Queen, [1978] 2 S.C.R. 476

C. 153.

Legislative Objectives Bawdy House (s. 210)

In modern times there has been little or no judicial or legislative discussion of the state

objectives underlying the bawdy house offences. Keeping a common bawdy house has been an offence since the enactment of the 1982 Criminal Code and the offence has been part of British common law for centuries. 154. At common law, disorderly houses were considered a public nuisance. In the 17th

century, Lord Coke noted that this common nuisance offence was the cause of many mischiefs, not only to the overthrow of bodies, and wasting of their livelihoods, but to the engendering of their souls. In the 18th century, Hawkins noted that the offence is a common nuisance not only in respect of its endangering the public peace by drawing together dissolute and debauched
194 195

Factum of the Attorney General of Ontario at para. 94. Factum of the Attorney General of Ontario at para. 96. 196 Factum of the Attorney General of Canada at para. 113; Factum of the Attorney General of Ontario at para. 65.

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persons, but also in respect of its apparent tendency to corrupt the manners of both sexes, by such an open profession of lewdness. Blackstone noted that all disorderly inns, or ale houses, bawdy-houses, gaming houses are public nuisances. Sir Stephens held an identical view.
Edward Coke, The Third Part of the Institutes of the Laws of England (Buffalo: W.S. Hein, 1986) at 204 William Hawkins, 1 Pleas of the Crown 1716-1721 (London: Professional Books Ltd., 1973) at 196 William Blackstone, Commentaries on the Laws of England (London: Dawson, 1966) at 823-824 James Fitzjames Stephen, A General View of the Criminal Law of England 2d ed. (London, Macmillan and Co., 1890) at 104-105 R. v. Corbeil, [1991] 1 S.C.R. 830 at 841-842 R. v. Marceau, supra at para. 48-59

155.

This historical evidence establishes that the bawdy house offences were predicated on

two state objectives: preventing a common nuisance and preventing the dissolution of moral values. As was said by the Alberta Court of Appeal in 1921, the purpose of the provision in question is obviously to check immorality. In 1908 it was noted by the court that the gist of the offence of keeping a common bawdy house is that it is an offence to the public or a public nuisance, offensive to the public and dangerous to the morals of the community.
R. v. Jones (1921), 36 C.C.C. 208 (Alta. C.A.) at 209 R. v. Mercier (1908), 13 C.C.C. 475 (Yuk. Terr. Ct.) at 485

156.

However, it is clear from the early common law cases that legal moralism played a

secondary role to the primary objective of curbing neighbourhood nuisance. A review of cases from the Old Bailey Session Papers 197 shows that prosecutions for this offence were predicated on the evidence of disruption and nuisance in the community. For example, in the case of Elizabeth Eyle (31 May 1693) it is noted that the evidence swore that oftentimes there was Swearing, Roaring and Damning all the Night Long, drinking to such a pitch, that they would fall out, and cry out Murder. In the case of Thomas Johnson (26 February 1849) it was noted
197

The Old Bailey Session Papers recorded in proto-reporter format the trials taking place in the Central Criminal Court in London from the 1600s. Once an obscure historical source found only in archives, the entirety of the Session Papers have recently been digitized and are available online at http://www.oldbaileyonline.org. Because the Session Papers lack a formal citation system, the citations provided in this factum are to the unique identifiers used in the online database.

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that the house is a great nuisance to neighbours complaints have been made of fighting and riotous conduct. In the case of Caroline Howard (2 July 1855), a witness testified that I have heard the most ridiculous conversation there, and most undoubted bad language the neighbours have complained I have been aroused in the night many times by the rows the house is a nuisance to the neighbourhood, and I have complained of it as such.
R. v. Elizabeth Elye, 31 May 1693, ref. no. t16930531-45 R. v. Thomas Johnson, 26 February 1849, ref. no. t18490226-755 R. v. Caroline Howard & Mary Jones, 2 July 1855, ref. no. t18550702-707

157.

Himel J. correctly recognized that in the modern area, the secondary objective of

protecting moral virtue can no longer be considered valid. First, in 1915 the historical conflation of bawdy house and vagrancy was ended such that the bawdy house offence was firmly grounded in the nuisance provisions of the Code without reference to a connection with the moral outcast known as the vagrant. More significantly, it is no longer considered constitutionally valid to justify criminal law on the basis of legal moralism.
An Act to Amend the Criminal Code (1915), JAR, Vol. 66, Tab 145, p. 19395

158.

The Appellants argue that the objectives have evolved and shifted over time to extend to

concerns over the commodification, exploitation and objectification of women. They also suggest that the law was designed to prevent the institutionalization and commercialization of sex work. This proposition is problematic for a number of reasons. 159. First, there is no evidence in the legislative record from which an inference could be

drawn that these objectives were being pursued. Secondly, the bawdy house offence has a long historical pedigree and, in substance, has remained unchanged in terms of its basic elements for centuries. Therefore, the analogy to the Butler shifting purpose analysis for obscenity law is inapt. Obscenity law, unlike bawdy house law, was the subject of statutory reform in the modern era. Further, the obscenity offence was predicated on an evaluative standard and not clear

76

actus reus elements, evidencing that it was anticipated that the objective and legal test would evolve over time. The bawdy house offence shares none of these traits. 160. In addition, the Supreme Court of Canada has clearly limited the Butler shifting purpose

analysis to open-ended legislative provisions of an evaluative nature. The Court has noted that it is inappropriate to premise Charter analysis upon a modern understanding of legislative purpose which is different from, and perhaps more constitutionally acceptable than, the original purpose. It has also noted that confirming a laws purpose is set on its enactment, and cannot be altered other than by enactment. Based upon this aversion to shifting purpose, the Manitoba Court of Appeal has recognized that any judicial alteration of the original intent behind an enactment would be restricted to a mere shift in emphasis: The Supreme Court has reaffirmed its rejection of the shifting purposes approach in numerous subsequent decisions. While modern reality and circumstances may, as always justify a court in reinterpreting the scope of the legislation in question so as to change its emphasis, the court cannot reinvent or change altogether the fundamental objective of the legislation. While a shift in emphasis can take place for example, the extent to which a purpose or object remains to becomes pressing and substantial can change over time (see Irwin Toy) there cannot be a wholesale change in the objectives of the legislation.
Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989 at para. 77 M. v. H., [1999] 2 S.C.R. 3 at para. 197 R. v. Stevens (1995), 96 C.C.C. (3d) 238 (Man. C.A.) at 253-254 R. v. Zundel, [1992] 2 S.C.R. 731 at 733 R. v. Levkovic (2008), 235 C.C.C. (3d) 417 (Ont. S.C.) at paras. 111-113; revd on other grounds: (2010), 103 O.R. (3d) 1 (C.A.)

161.

Finally, it is impossible to construe the objective of the provision as extending to the

prevention of institutionalization and commercialization when the judiciary has consistently interpreted the provision so as to apply to the conduct of one sex worker using her own home on

77

a habitual and frequent basis for purposes of work without the assistance or participation of others.
R. v. Corbeil, supra at 843-844 R. v. Worthington (1972) 10 C.C.C. (2d) 311 (Ont. C.A.)

D. 162.

Legislative Objectives Living on the Avails (s. 212(1)(j))

As with the bawdy house offences, there is little judicial or legislative discussion of the

objective underlying this offence; however, it is clear by its placement in s. 212, along with other offences relating to control and manipulation of sex trade workers, that the objective underlying this offence is to prevent exploitation by controlling the actions of sex trade workers, or by manipulating people into entering the trade. The conflation of those living on the avails with the status of pimp was noted by Mr. Justice Cory: It can be seen that the majority of offences outlined in s. 195 [now s. 213] are aimed at the procurer who entices, encourages or importunes a person to engage in prostitution. Section 195(1)(j) is specifically aimed at those who have an economic stake in the earnings of a prostitute. It has been held correctly, I believe, that the target of s. 195(1)(j) is the person who lives parasitically off a prostitutes earnings. That person is commonly and aptly termed a pimp. A reading of the reports such as those of the Fraser Committee and the Badgley Committee emphasizes the tragedy and the gravity of the social problem posed by prostitution. As well, they carefully document the cruel, pernicious and exploitative evil of the pimp. [Citations omitted.]
R. v. Downey, [1992] 2 S.C.R. 10 at 32

163.

The Appellants argue that Himel J. cast this objective too narrowly as she did not take

into account the state purpose of deterring third parties from developing vested economic interests in sex workers. There is no legislative fact evidence supporting this expansion, and the legislative history of the provision, with its roots in vagrancy law, clearly show that the diverse conduct captured by s. 212 is all directed to exploitative and parasitic relationships with sex

78

workers. It is submitted that the objective of s. 212 is to protect the worker from the pernicious and exploitative evil of the pimp and was not intended to operate as a blanket prohibition on the development of any form of economic relationship with a sex worker. 5. 164. THE PRINCIPLES OF FUNDAMENTAL JUSTICE Once the legislative objectives of the impugned provisions have been properly identified,

the constitutional analysis under s. 7 requires an assessment of the means chosen to achieve these objectives. This analysis occurs in order to ensure that the means chosen are not inconsistent with, or undercut, a stated objective (arbitrariness), that they do not overshoot the mark and include within its net conduct not related to the objectives (overbreadth), or that they do not lead to harms that grossly outweigh the importance of the objectives (gross disproportionality). A. 165. Fundamental Justice Arbitrariness

In 1993 three years after the Prostitution Reference the Supreme Court confirmed that

the principles of fundamental justice include a prohibition on arbitrary law-making. Laws may be arbitrary in either of two ways: (1) where it bears no relation to, or is inconsistent with, the objective that lies behind [it] or (2) when the deprivation of the right in question does little or nothing to enhance the states interest.
Rodriguez, supra at 594-595 Sfetkopoulos v. Canada (Attorney General), [2008] 3 F.C.R. 399, affd (2008), 382 N.R. 71 (C.A.) Chaoulli v. Quebec, supra at paras. 129-133

166.

The Respondents concede that Himel J. applied the correct test as articulated by the

Supreme Court of Canada in concluding that the communication and bawdy house provisions were not arbitrary in that they did bear some relationship to the objective underlying the prohibition. Although the Respondents tendered a great deal of evidence to demonstrate that the communication provision has failed to achieve its objectives and that the bawdy house provision

79

is rarely enforced, Himel J. was correct in not taking this evidence into account on this branch of s. 7, but rather considering it during her s. 1 analysis. 167. Himel J. was also correct in concluding that the living on the avails provision was

arbitrary in that it was internally inconsistent with the underlying objective of protecting sex workers from exploitation. The Appellants argue that this latter conclusion is skewed by Himel J.s failure to recognize that the living on the avails provision has a secondary objective of discouraging the development of vested economic interests with sex workers. For the reasons stated earlier, there is no evidence to demonstrate that the provision was designed to achieve this secondary objective. 168. The arbitrary nature and operation of the living on the avails provision was recognized by

McLachlin J. (as she then was) in 1992, in the context of commenting on the presumption under s. 212(3) that living with a sex trade worker raises a presumption of living on the avails. Downey involved a s. 11(d) Charter claim brought by an accused charged with this offence. In the course of delivering a dissenting opinion on the operation of s. 1, McLachlin J. commented on how this provision impacts on the interests of sex workers in an arbitrary manner: The irrational and unfair effects of the presumption extend beyond those who innocently keep company with prostitutes, to prostitutes themselves. Insofar as the object of the presumption is the suppression of pimping and the protection of prostitutes from the evil of being subject to the malevolent control of pimps, these effects on prostitutes are such as to bring into question the external rationality of the presumption i.e., whether the legislation furthers its purported objects. While few in our society approve of prostitution and most regard it as an unfortunate fact of life, a fact of life it remains, and one which Parliament has not seen fit to sanction by making it a crime. The effect of the presumption is to compel prostitutes to live and work alone, deprived of human relationships save with those whom they are prepared to expose to the risk of a criminal charge and conviction and who are themselves prepared to flaunt that possibility. By this presumption prostitutes are put in the position of being unable to associate with

80

friend and family, or to enter into arrangements such as those evidenced in this case, arrangement which may alleviate some of the more pernicious aspects of their frequently dangerous and dehumanizing trade. The predictable result is to force prostitutes onto the streets or into the exploitative power of pimps, thereby undercutting the very pressing and substantial objective which the presumption was designed to address. Where legislation has the actual effect of operating to preserve and exacerbate the very exploitation the amelioration of which is its purported objective, it cannot be said to possess the degree of rationality necessary to justify the violation of a right guaranteed by our Charter.
R. v. Downey, supra at 47

169.

It is submitted that Himel J. was also correct in concluding that the interplay of the three

offences rendered the bawdy house provision to be arbitrary on the basis that the objectives underlying the three impugned offences were undercut by the clear inconsistency in the operation of the three provisions. She stated that although I do not find that the bawdy-house provisions are themselves arbitrary, I find that their interplay with the other impugned provisions renders them so. when seen in conjunction with the other impugned provisions, the bawdyhouse provisions are arbitrary in the sense that they may actually exacerbate the nuisance Parliament intends to eradicate.
Bedford v. Canada, AB, Tab 5, para. 387.

170.

Himel J. was correct in concluding that the state objectives underlying all three offences

will never be achieved because the interplay of the three provisions is a contradiction in action. The courts define the state purpose underlying the communication offence as aimed at taking solicitation for the purposes of prostitution off the streets and out of public view, yet the other provisions foreclose the possibility of moving out of public view in a legal manner. In fact, there is a significant legal cost imposed on those who move out because the other impugned provisions trigger more serious legal sanctions. In the same vein, the bawdy house law prohibits the use of an indoor location on a habitual and frequent basis, yet the alternative working out81

171.

Although Himel J.s conclusion on the inconsistent interplay appears to only apply to the

invalidation of the bawdy house provision, it is submitted that she did not err in striking down the three impugned provisions in order to remedy the constitutionally invalid interplay. It is clear that the three provisions cannot co-exist in a rational way and to only invalidate the communication offence or the bawdy house provision as a solution to the inconsistency is to engage in the impermissible task of a court making ad hoc choices from a variety of options. The Appellants have argued that the provisions serve a multitude of valid state objectives and this multitude prevents a court from effectively choosing which provisions to salvage as the court cannot undertake the task of setting legislative priorities amongst competing objectives. Where Parliament has made an unequivocal choice to prohibit the conduct contained in three different provisions, it would constitute an unwarranted intrusion into the legislative domain for the court to further the objective of the legislative scheme thorough different means.
Schachter v. Canada, [1992] 2 S.C.R. 679 at 708-710

172.

The Appellants argue that Himel J. was wrong to consider the interplay of the different

provisions in concluding that the provisions were arbitrary. There is simply no principled basis to restrict the arbitrariness analysis to a compartmentalized assessment of the rationality of one provision in isolation from the entire legislative regime. In fact, when arbitrariness is assessed on the basis of inconsistency (as opposed to the rational connection branch of the doctrine) it is most likely that the inconsistency will arise from the interplay of related provisions. It is the height of arbitrariness to enact legislation that makes contradictory demands in that compliance with one 82

part of the law leads to a violation of another part. The constitutional vice arises whether the inconsistency is internal to the provision or whether it arises by operation of related or even unrelated provisions. 173. The Appellants also argue that the provisions have multiple objectives, many of which

were not identified or approved of by Himel J., and that proper consideration of the full range of objectives associated with the provisions must lead to the conclusion that they do not operate collectively in an arbitrary or irrational manner. 198 The presence of multiple objectives for offences which have evolved independently over the centuries is often the source of inconsistent legislative demands. Asserting the presence of multiple objectives, whether recognized or not, does not serve to bolster the claim that the interplay of the provisions is not arbitrary. A multitude of objectives does not answer the fundamental contradiction between the state objective of moving sex workers off the street to prevent street and social nuisance and the state objective of moving them out of home to prevent community disorder and nuisance. B. 174. Fundamental Justice Overbreadth and Blanket Prohibitions

In 1994, the Supreme Court confirmed the existence of another constitutional vice related

to arbitrariness: overbreadth. In the context of a lifetime ban on sex offenders attending specific public venues after release from prison, the Court outlined the basis of the doctrine: Overbreadth analysis looks at the means chosen by the state in relation to its purpose. In considering whether a legislative provision is over broad, a court must ask the question: are those means necessary to achieve the State objective? If the state, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individuals rights will have been limited for no reason. The effect of overbreadth is that in some applications the law is arbitrary or disproportionate.

198

Factum of the Attorney General of Ontario at para. 106.

83

Reviewing legislation for overbreadth as a principle of fundamental justice is simply an example of the balancing of the State interest against that of the individual.
R. v. Heywood, [1994] 3 S.C.R. 761 at 792-793

175.

Overbreadth essentially requires the court to determine if the lawmakers have overshot

the mark in formulating the terms and conditions of a criminal offence. By 2004, the Supreme Court acknowledged that it is a well-established principle of fundamental justice that criminal legislation must not be overbroad, and in that case the Court invalidated a provision allowing for the continued subjection of an unfit person to the criminal process, where there is no clear evidence that capacity will never be recovered and there is no evidence of a significant threat to public safety. In other words, if the criminal law extends its reach to persons not posing a threat to public safety, or the proper functioning of society, there is a violation of fundamental justice because the deprivation of the right to liberty does not advance the states objective.
R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577 at 619, 627 Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 at 969 R. v. Zundel, supra at 776 R. v. Demers, [2004] 2 S.C.R. 489 at paras. 37, 43

176.

It is respectfully submitted that Himel J. applied the correct test and reached the correct

conclusion in holding that the bawdy house and living on the avails provisions are overbroad. As she found, the elements of these two provisions are narrowly circumscribed to address situations of nuisance and exploitation. The existing case law demonstrates that the enforcement of the provisions extends far beyond the objectives of the legislation. The Respondents do not challenge the conclusion of Himel J. that the communication provision is not overbroad. 177. The Appellants argue that Himel J. erred in applying the established test for overbreadth

because they assert that this constitutional doctrine has now been completely subsumed by the doctrine of gross disproportionality. In arguing for the conflation of the two doctrines, the

84

Appellants suggest that Himel J. erred in applying overbreadth when the means chosen are broader than necessary to accomplish the objective. Instead, the Appellants argue that the test properly understood required the court to ask whether Parliament had a rational basis for extending the law beyond its apparent objective, and that this assessment should accord a deferential substantial elbow room for Parliament.
Bedford v. Canada, AB, Tab 5, para. 403 Factum of the Attorney General for Canada, para. 129

178.

The Appellants reformulation of the test for overbreadth has no clear foundation in case

law; however, in two recent decision of this Honourable Court, there appeared to be a conflation of the doctrine of overbreadth and the doctrine of gross disproportionality. In the context of an unsuccessful challenge to the provincial sex offender registry, the Court initially noted that the proscription against overbreadth, has its roots in the notion that legislation must not be arbitrary or unnecessarily broad in terms of the objectives it seeks to achieve; however, it concluded its analysis by stating that since gross disproportionality is the ultimate standard, the threshold for striking down legislation on the grounds of overbreadth is clearly high. Similarly, in the context of an unsuccessful challenge to a provincial ban on pit bull dogs, the Court appeared to analyze overbreadth in terms of gross disproportionality.
R. v. Dyck (2008), 232 C.C.C. (3d) 450 (Ont. C.A.) at paras. 91, 96 Cochrane v. Ontario (2008), 92 O.R. (3d) 321 (C.A.)

179.

It is respectfully submitted that these cases do not stand for the proposition that

constitutional review no longer exists solely on the basis of overbreadth for overshooting the mark. The doctrine of gross disproportionality under s. 7 was first introduced by the Supreme Court in 2003, and since that time both the Supreme Court (Demers) and the Divisional Court for Ontario (Musani) have undertaken overbreadth review without reference to gross disproportionality. It is submitted that these two cases do not govern the analysis of criminal law,

85

and the purported conversion of overbreadth into a more rigorous and exacting gross disproportionality review should be restricted to the review of provincial legislation which has a much less dramatic impact on the liberty and security of Canadians. It is submitted that this Court has recognized that its analysis may not be applicable in the criminal context as the legislatures response to the problem posed by pit bulls is not analogous to the legislative responses in the cases relied upon by the appellant [Heywood and Demers].
Cochrane v. Ontario, supra at para. 35 R. v. Demers, supra Mussani v. College of Physicians & Surgeons of Ontario (2003), 64 O.R. (3d) 641 (Div. Ct.)

180.

The Attorney General of Canada also argues that the impugned provisions are not

overbroad because Parliament is permitted to enact a blanket prohibition on a dangerous activity, even if not all forms of activity crystallize into actual harm. Stated at a level of generality, this proposition is correct. However, when viewed within the context in which the Supreme Court of Canada has endorsed blanket prohibitions, it can be seen that this proposition does not apply in this context.
Factum of the Attorney General of Canada at para. 133

181.

In the contexts of assisted suicide and marijuana use, the Supreme Court upheld

legislative resort to blanket prohibitions on the basis that the objective of both laws was to protect the vulnerable and that there did not currently exist an effective mechanism for distinguishing in advance which people seeking assisted suicide or the use of marijuana would be vulnerable to the harms for which the law was enacted in the first place.
Rodriguez v. British Columbia, supra at 605 R. v. Malmo-Levine, supra at paras. 76-77, 148, 166

182.

It is respectfully submitted that the logic of these cases has no application here because

the objective of the impugned laws in this case is not to protect the vulnerable, and it is possible

86

in this context to distinguish in advance the vulnerable from those not needing protection, especially in light of the fact that a myriad of alternative legal regimes exist which have mechanisms for identifying the vulnerable. 183. A blanket prohibition can significantly impair both liberty and security, particularly if the

blanket prohibition prevents individuals from taking legal steps to protect their physical and psychological integrity. For example, in 2000, this Court invalidated the marijuana possession offence on the basis that it operated arbitrarily in extending the net of criminality too wide by prohibiting medical use of the substance. Similarly, in 2008, the British Columbia Supreme Court invalidated the blanket prohibitions of possession and trafficking in a controlled substance because this blanket prohibition prevented heroin users from resorting to safe injection sites. The evidence in the case disclosed that the safe injection site provided addicts with a healthier and safer environment for the administration of their drugs, whereas outside of the controlled setting of the injection site the risk of mortality from overdose increased. The Court concluded that the blanket prohibition in the CDSA impaired the right to security in that it denies the addict access to a health care facility where the risk of morbidity associated with infectious disease is diminished, if not eliminated. The blanket prohibition was found to be overbroad because instead of being rationally connected to a reasonable apprehension of harm, the blanket prohibition contributes to the very harm it seeks to prevent.
R. v. Parker, supra PHS Community Services Society v. Canada (2008), 293 D.L.R. (4th) 392 (B.C.S.C.) at paras. 140, 144, 146, 152, affd on other grounds (2010), 314 D.L.R. (4th) 209 (B.C.C.A.), leave to appeal granted [2010] S.C.C.A. No. 49

(i) The Overbroad Operation of Bawdy House (s. 210)

87

184.

Since 1982 the Criminal Code has prohibited the keeping of a bawdy house for the

purpose of prostitution. In 1913 the Code extended liability to landlords who permit the operation of bawdy houses and persons found-in the disorderly clients (i.e. clients). In 1915, liability was expanded to inmates (employees). The definition of keeping and of being a keeper has been modified and expanded on a number of occasions; however, the definition of keeper is not the source of the constitutional infirmity. The source of infirmity lies in the failure to require proof of any element in the nature of disorder, nuisance or exploitation.
An Act to Amend the Criminal Code (1913), JAR, Vol. 66, Tab 144, p. 19347 An Act to Amend the Criminal Code (1915), JAR, Vol. 66, Tab 145, p. 19395

185.

In 1967, the Supreme Court ruled that a place was not a bawdy house unless it was

resorted to on a habitual and frequent basis. The requirement for habitual and frequent use was a recognition by the court that the offence must have some foundation in nuisance. However, habitual use does not serve as a proxy for proof of disorder and community disruption, and the absence of a statutory element requiring proof of disorder or disruption has led to the application of the bawdy house law to situations bearing no relationship to its original objectives.
R. v. Patterson, [1968] S.C.R. 157 at 161

186.

In particular, a review of all reported cases available in Quicklaw, Westlaw, Criminal

Spectrum, the Canadian Abridgement, Crankshaws Case Digests and the C.C.C. index between 1972 (when the soliciting offence was enacted) and the hearing of this application below clearly demonstrated that in the large majority of bawdy house cases there is no evidence of nuisance, in terms of community complaints. Of 38 cases reviewed, only 3 cases had some clear

88

evidence suggesting some nuisance with the nuisance being inferred from complaints from members of the public (Badali; Klaus; Nguyen). 199
R. v. Juneja, 2009 ABQB 243; R. v. Huang, 2007 BCPC 205; R. v. Ng, 2007 BCPC 204; R. v. Ponomarey, [2007] O.J. No. 271 (Ct. Jus.); R. v. Tannenbaum, [2006] M.J. No. 156 (Q.B.); R. v. Badali, [2005] O.J. No. 5802 (Ct. Jus.); R. v. Saengchanh (2004), 51 Imm. L.R. (3d) 91 (Alta. Prov. Ct.); R. v. Zakreski (2004), 362 A.R. 10 (Prov. Ct.); R. v. Ni (2002), 158 O.A.C. 230 (C.A.); R. v. Caringi, [2002] O.J. No. 2367 (Ct. Jus.); R. v. Yeung, [2001] B.C.J. No. 2045 (Prov. Ct.); R. v. St-Onge (2001), 155 C.C.C. (3d) 311 (Ont. C.A.); R. v. McNab (2000), 264 A.R. 76 (Prov. Ct.); R. v. Carroll (1999), 118 B.C.A.C. 219 (C.A.); R. v. Klaus, [1998] O.J. No. 6513 (Ct. Jus. (Prov. Div.)); R. v. Brandes, [1997] O.J. No. 5443 (Ct. Jus. (Prov. Div.)); R. v. Mohammed, [1996] B.C.J. No. 1285 (C.A.); R. v. Webb, [1995] S.J. No. 252 (Q.B.); R. v. Suen, [1995] O.J. No. 4409 (Ct. Jus. (Prov. Div.)); R. v. Tardif (1995), 97 C.C.C. (3d) 381 (Que. C.A.); R. v. Guan, R. v. Soh, R. v. Look, [1992] O.J. No. 2588 (Ct. Jus. (Prov. Div.)); R. v. Habib (1992), 135 A.R. 162 (C.A.); R. v. Nguyen (1992), 16 W.C.B. (2d) 447 (Ont. Ct. Jus. (Prov. Div.)); R. v. Corbeil, [1991] 1 S.C.R. 860; R. v. Woszczyna (1983), 6 C.C.C. (3d) 221 (Ont. C.A.); R. v. Pierce and Golloher (1982), 66 C.C.C. (2d) 388 (Ont. C.A.); R. v. Yee, [1982] B.C.J. No. 1905 (C.A.); R. v. McLellan (1980), 55 C.C.C. (2d) 543 (B.C.C.A.); R. v. Ikeda (1978), 42 C.C.C. (2d) 195 (Ont. C.A.); R. v. Ramberran, [1978] 1 W.W.R. 19 (Man. Prov. Ct.); R. v. Wong (1977), 33 C.C.C. (2d) 6 (Alta. S.C.A.D.); R. v. Broccolo (1976), 30 C.C.C. (2d) 540 (Ont. Prov. Ct.); R. v. Barrie (1975), 25 C.C.C. (2d) 216 (Ont. Co. Ct.); R. v. Baskind (1975), 23 C.C.C. (2d) 268 (Que. C.A.); R. v. Evans (1973), 12 C.C.C. (2d) 109 (Que. C.A.); R. v. Worthington (1972), 10 C.C.C. (2d) 311 (Ont. C.A.)

187.

Finally, it must also be recognized that bawdy house liability does not simply extend to

individuals engaged in an organized business venture. The law prohibits sex trade workers from resorting to their home, or designated premises, as a safe haven for conducting their business. The size and sophistication of the operation is immaterial in the eyes of the law, and habitual use of a premise by an individual sex trade worker will attract bawdy house liability.
R. v. Corbeil, supra at 843-844 R. v. Worthington, supra

(ii) The Overbroad Operation of Living on the Avails (s. 212(1)(j)) 188. Section 212 covers a wide range of exploitive conduct involving procuring, enticing,

concealing, exercising control, direction or influence and administering drugs or stupefying substances. Subjection (1)(j) applies to living on the avails with the term avails being defined as earnings. This subjection has been applied in two broad categories: (1) to
199

Although prevention of exploitation is not a recognized objective underlying this law, it should be noted that the review of cases only found evidence of exploitation in 7 of 38 cases - the exploitation consisting of employers fining sex workers and attempting to obtain free sexual services (Juneja; McNab),. Two cases involved allegations of trafficking (Ng; Saengchanh) and three involved under-age prostitution (Suen; Zakreski; Carroll).

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people who live with sex workers and take part of all of the workers earnings, and (2) to people engaged in providing business services to sex workers. The Appellants argue that those engaged in providing paid services to sex workers are by definition acting in an exploitative and parasitic manner; however, the case law does not support this proposition. 189. In 1991, this Court addressed the first scenario (live-in partners) and concluded that there

must be a parasitic relationship in order for the partner to incur criminal liability for taking some or all of the workers money. However, with respect to a scenario of providing a business service, the law does not require evidence of exploitation. This Court adopted the test articulated by the House of Lords in Shaw: a person may fairly be said to be living in whole or in part on the earnings of prostitution if he is paid for goods and services supplied by him to them for the purpose of prostitution which he would not supply but for the fact that they were prostitutes.
R. v. Grilo (1991), 64 C.C.C. (3d) 53 (Ont. C.A.) at 60-61 Shaw v. Director of Public Prosecutions, [1961] All ER 446 at 450 R. v. Celebrity Enterprises Ltd., [1977] 4 W.W.R. 144 (B.C. Co. Ct.) at 156

190.

In 2001, this Court confirmed that the Shaw test still applied to the provision of business

services and upheld a conviction for a supportive manager because her occupation is parasitic in that it would not exist if the escorts were not prostitutes. This notion that the provision of any business service will be deemed to be parasitic if the service is exclusively offered only to sex workers has been accepted in other cases post-Grilo.
R. v. Barrow (2001), 54 O.R. (3d) 417 (C.A.) at para. 23 R. v. Friesen (1995), 129 Sask. R. 223 (Q.B.) R. v. Ranville (1995), 129 Sask. R. 318 (Q.B.)

191.

The fact that living on the avails clearly extends to non-exploitative conduct is also

demonstrated by sentencing decisions. An 86 year-old offender was sentenced to 15 months in 2006 for charging prostitutes a fee for working at his home; the Court noted that there is no suggestion the accused engaged in violence or that the girls were under duress or were coerced in

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any manner by the accused. An accused who operated an escort agency over several years was sentenced to 12 months in 2002 and it was noted that he did not use violence or intimidation and the trial judge found that the escorts joined the service of their own free will. Finally, an accused who ran an escort service with an escort business license issued by the city was sentenced to a conditional discharge in 2005, when it was noted: It is first to be noted that the activities of the accused are very different from those who commit the crime by being pimps (i.e. those who control the actions of a prostitute by reliance on a personal relationship with the prostitute, or by violence, or threats of violence). Those who are pimps live on the avails of prostitution by having a parasitic relationship with the prostitute In the case at bar, the element of parasitism is absent.
R. v. Odgers (2006), 400 A.R. 322 (Prov. Ct.) at para. 8 R. v. Lucacko (2002), 59 O.R. (3d) 58 (C.A.) at para. 56 R. v. Manion (2005), 377 A.R. 95 (Prov. Ct.) at paras. 18-19

C. 192.

Fundamental Justice Gross Disproportionality

In 2003, the Supreme Court of Canada dismissed a constitutional challenge to the

criminal prohibition on the possession of marijuana. The Court rejected the notion that the principles of justice demanded that there must be evidence of a sufficient level of harm to others before Parliament can invoke the criminal sanction; however, the Court did recognize that it would violate principles of fundamental justice if the harmful effects of a law were grossly disproportionate to the benefits gained in pursuing the state objective underlying it. The Court stated that if the use of the criminal law were shown by the appellants to be grossly disproportionate in its effects on accused persons, when considered in light of the objective of protecting them from the harm caused by marijuana use, the prohibition would be contrary to fundamental justice and s. 7 of the Charter.
R. v. Malmo-Levine, supra at paras. 169-170

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193.

Since 2003, the doctrine of gross disproportionality has gained acceptance as a principle

of fundamental justice and has been applied, without success, in a number of contexts.
Flora v. Ontario Health Insurance Plan (2006), 83 O.R. (3d) 721 (Div. Ct.) Cheskes v. Ontario (Attorney General) (2007), 87 O.R. (3d) 581 (S.C.) Cochrane v. Ontario, supra R. v. Dyck, supra

194.

In the marijuana cases, the balancing of harms and benefits required an assessment of

whether the benefits of protecting Canadians from the documented harms of marijuana use were grossly outweighed by the harms of possible imprisonment and the imposition of a criminal record with its attendant stigma and economic consequences for young people. The Supreme Court concluded that the harms caused by the law were routine and ordinary side effects of the criminal process and these hardships could not constitute the type of harm which could outweigh the benefits gained by the prohibition. In the case at bar, it is respectfully submitted that the law materially contributes to a type of harm that does grossly outweigh the benefits of the law. 195. The harms caused by the blanket prohibitions on communicating, on moving indoors and

on relying upon services provided by third parties are not routine side effects of the process as was the case with the marijuana prohibition. Himel J. was correct in concluding that the evidence in this case demonstrated on a balance of probabilities that the blanket prohibitions on sex trade activities increase the risks of violence for sex workers, and the evidence demonstrates that this increased risk of victimization includes exposure to the horrors of predatory killers. It is respectfully submitted that it is clear that the magnitude of the harm caused by laws which restrict safety options for an occupation at risk grossly outweigh any benefits to be achieved in pursuing the objectives of reducing or eliminating nuisance and exploitation. 196. Himel J. applied the correct test and arrived at the correct result in balancing the harms

against the state objectives. The Appellants argue that she applied the wrong test because she

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balanced the documented harms against the laws limited efficacy as opposed to balancing them against the importance of the objective. The Appellants are correct only in noting that Himel J. mentioned that complaints are rare with respect to bawdy houses, and that the communication provision was providing little benefit to communities, but these were incidental remarks reflecting on the state of the evidence. They do not detract from her ultimate finding that all three offences were grossly disproportionate to their purposes or objectives divorced from consideration of whether the laws were effectively serving the public.
Bedford v. Canada, AB, Tab 5, paras. 427, 434

197.

In any event, even if Himel J. committed an error in considering the s. 1 factor of

salutary effects or lack thereof of the law in the course of her s. 7 analyses, it is submitted that this is a harmless error that does not skew her ultimate conclusion. Although the objectives underlying these provisions serve an important state objective it is impossible to conceive of any situation in which these objectives could outweigh the harm of serious, and often fatal, violence. 198. The Attorney General of Ontario argues that the balancing exercise conducted by Himel

J. was predicated on the error of failing to recognize that the law is only a minor causal agent in the exposure of sex workers to harm, if it has a causal role to play at all. It is submitted that once a causal link has been shown between the law and a significant deprivation of security, it does not make sense to absolve the state for its contribution on the basis that the contribution is minor. In light of the magnitude of harm to which sex workers are exposed, it should matter little for the gross disproportionality analysis that the major contributor to the harm is a psychopath, and that the law is only a minor contributor in preventing sex workers from taking steps to protect themselves against the major contributor. The Charter cannot protect a victim from the evil designs of a predator or psychopath, but the Charter should be able to protect the victim from a law which prevents the victim from taking steps to avoid the evil designs of the predator. 93

6.

REASONABLE LIMITS UNDER SECTION 1 A. Fundamental Justice and Reasonable Limits

199.

It is respectfully submitted that Himel J. did not err in concluding that the fundamental

justice violations in this case cannot be saved by s. 1 of the Charter. The Supreme Court has consistently held that it would be a rare occasion when s. 1 could cure a breach of fundamental justice, and these rare occasions would tend to involve emergency situations. In addition, the Supreme Court has clearly stated that s. 1 cannot cure an overbreadth defect as it would be inconsistent to conclude that an overbroad law constitutes a minimal impairment of rights.
Bedford v. Canada, AB, Tab 5, para. 440 Reference Re: B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 at 518 New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46 at para. 99 Suresh v. Canada, supra at para. 78 R v. Demers, supra at para. 46 R. v. Heywood, supra at 802-803 Cheskes v. Ontario, supra at paras. 137-138

B. 200.

The Communication Law and Reasonable Limits

In 1990, the Supreme Court concluded that the communication offence violated freedom

of expression but was a reasonable limit upon this fundamental freedom. As Himel J. noted, none of the parties to this proceeding made submissions to the contrary with respect to the s. 2(b) violation; however, it is submitted that the Supreme Courts conclusions with respect to s. 1 cannot stand in light of new developments. In 1990, the Court did not take into consideration the possibility that the broad formulation of any communication could serve to impair a sex workers security interest as the evidence relating to street violence and the need to take rudimentary screening precautions was simply not before the Court for its consideration.
Bedford v. Canada, AB, Tab 5, para. 444

201.

Himel J. did not err in undertaking a new balancing of interests under s. 1 on the basis

that new evidence has demonstrated that the nature of the expression being prohibited should no

94

longer be relegated to the periphery of constitutionally protected expression. Himel J. characterized the nature of the expression in question by noting that communication for the purpose of engaging in prostitution by necessity includes communications that serve to screen customers for safety purposes, as these communications are ultimately in furtherance of the eventual transaction A conversation aimed at detecting whether or not a potential customer is belligerent, armed, or intoxicated, even one about something as banal as the weather, is a communication that is ultimately directed at safely exchanging sexual services for payment.
Bedford v. Canada, AB, Tab 5, paras. 459-461

202.

Given that expressive rights in this context are not restricted to commercial speech, it is

submitted that Himel J. was correct in concluding that this speech, which protects autonomy and security, lies at the core of constitutionally protected speech. Once the importance of the expressive content of the speech being prohibited is properly understood as relating to the core of constitutionally protected speech, it is submitted that the balancing of state versus individual interests will be a fundamentally different exercise than the one conducted in 1990. 203. In undertaking a new balance of competing interests, Himel J. took into account the

international experiences, evidence pertaining to the laws ineffectiveness, and evidence pertaining to the increased security risks triggered by the enforcement of the communication law. These are all relevant factors to be taken into account in the s. 1 analysis, and Himel J. was correct in concluding that the international experience demonstrates that the impugned law is not a minimal impairment on rights and that the evidence of ineffectiveness and increased security risks clearly demonstrates that the deleterious effects of the law far outweigh its salutary effects.
Bedford v. Canada, AB, Tab 5, paras. 481, 498-502

204.

The Appellants are wrong in suggesting that Himel J. should not have compared s.

213(1)(c) with laws of foreign jurisdictions because they do not have the same legislative 95

objectives as s. 213(1)(c). It is clear that law reform efforts in foreign jurisdictions did have as one of many objectives the reduction of street and social nuisance as they all have retained some form of prohibition on street solicitation. Further, the various legal approaches undertaken by foreign jurisdictions in the past two decades have always been considered to be highly relevant to the s. 1 determination of whether a limit is reasonable in a free and democratic society.
Factum of the Attorney General of Canada at para. 174

205.

For example, the Supreme Court of Canada upheld the prohibition on assisted suicide

partly on the basis that other free and democratic societies have also maintained a ban on this conduct, and the Court invalidated the constructive murder provisions partly on the basis that other Commonwealth jurisdictions had already repealed similar provisions. Whether or not Canada is no longer in step with changing international responses, the important point to be taken from this evidence is that there exists a diversity of legislative responses to combating the harms of street prostitution without the need for a blanket and broad prohibition which has been shown to increase a sex workers exposure to risk of serious harm.
Rodriguez v. British Columbia, supra at 581-582, 613 R. v. Vaillancourt, [1987] 2 S.C.R. 636 at 650 Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at para. 60

206.

Finally, it is submitted that an ineffective law, or a law which cannot meet its

objectives, cannot constitute a reasonable limit. As Himel J. concluded, a law that is proven to be ineffective in terms of meeting its stated objective cannot be considered a minimal impairment on a right. Allowing an ineffective law to cure or save a violation of free expression would mean that expressive freedom could then be violated for no apparent reason. It is conceded that the Supreme Court has clearly stated on two occasions that there is no free-standing constitutional review of the efficacy of the law as this would be an unjustified intrusion onto the realm of public policy. However, both cases involved division of powers challenges, and it is

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acknowledged that the efficacy of law is clearly not relevant to the jurisdictional question of legislative competence. However, in terms of judicial review for compliance with Charter rights, the Supreme Court has recognized that different considerations may come into play: This Court has exercised caution in accepting arguments about the alleged ineffectiveness of legal measures: see Reference re Firearms Act (Can.), supra, where the Court held that [t]he efficacy of a law, or lack thereof, is not relevant to Parliaments ability to enact it under the division of powers analysis (para. 57). While somewhat different considerations come into play under a Charter analysis, it remains important that some deference be accorded to Parliament in assessing the utility of its chosen responses to perceived social ills.
R. v. Malmo-Levine, supra at para. 177 Reference Re: Firearms Act (Can.), [2000] 1 S.C.R. 783 Ward v. Canada (Attorney General), [2002] 1 S.C.R. 569

207.

In the context of judicial review for violations of the Charter, the Supreme Court has

recognized that efficacy of the law is relevant to the s. 1 determination of reasonable limits. In the Keegstra case, the hate literature provisions of the Code were upheld as a reasonable limit on freedom of expression. The dissenting judges would not uphold the provisions as a reasonable limit because of evidence suggesting that these types of law are ineffective in achieving their stated objectives. It was noted in the case that the Nazi regime in Germany had extensive hate literature laws and, of course, history shows that these laws could not prevent genocide. Dickson C.J., for the majority, addressed this claim of inefficacy. He concluded that there was insufficient evidence to demonstrate a lack of efficacy, though he recognized that an ineffective law is an arbitrary and irrational law. He did state that: If s. 319(2) can be said to have no impact in the quest to achieve Parliaments admirable objectives, or in fact works in opposition to these objectives, then I agree that the provision could be described as arbitrary, unfair or based on irrational considerations (Oakes, supra, at p. 139). I recognize that the effect of s. 319(2) is impossible to define with exact precision the same can be said for many laws, criminal or otherwise. In my view, however, the

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position that there is no strong and evident connection between the criminalization of hate propaganda and its suppression is unconvincing. [Emphasis added.]
R. v. Keegstra, [1990] 3 S.C.R. 697 at 768

PART IV ADDITIONAL ISSUES

208. It is respectfully submitted that the three impugned sections, considered individually or

collectively, deprive the Respondents of their right to liberty in a manner not in accordance with one further principle of fundamental justice. It is submitted that that the direct effect of the interplay of these three provisions is to create an environment in which sex trade workers must rely upon the illegal acts of third parties in the black market to secure assistance and to increase the safety in their operations. It runs contrary to the rule of law principle of promoting compliance with the law for the state to authorize a legal activity (i.e. selling sex) while concurrently closing down any legal option for the effective and safe pursuit of the activity. 209. Himel J. concluded that it was not necessary for her to consider whether the impugned

provisions also offend this principle in light of the other s. 7 violations. However, she then noted that she was of the view that this principle is not applicable to this case: see British Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 S.C.R. 473, 2005 SCC 49. It is respectfully submitted that Justice Himel erred in concluding that this decision of the Supreme Court of Canada governed the applicability of this principle. The rule of law, i.e. that the state has an obligation to promote compliance with its own laws, is an alternative basis for understanding the constitutional infirmity of irrationality permeating the impugned provisions.
Bedford v. Canada, AB, Tab 5, para. 439

210.

In Imperial Tobacco, the Supreme Court was simply reflecting on the fact that the

general concept of the rule of law lacked the requisite specificity to be considered a principle

98

of fundamental justice; however, in this case the Respondents have not simply relied upon a principle of high generality; rather reliance has been placed upon a judicially-crafted and specific principle which is derived from the general concept. Vagueness is a well-recognized principle of fundamental justice yet vagueness is clearly an example of another judicially crafted and specific principle based upon the philosophical concept of the rule of law. 211. This rule of law principle was first articulated by this Court in 2003 in addressing s. 7

claims raised in the context of the authorized use of medical marijuana. In that case, the Federal government had issued authorizations to numerous Canadians to legally use and possess marijuana for medical purposes. However, the government did not establish any legal sources of supply, and therefore patients were compelled to enter the black market to access a supply of medicine. The Court concluded that the deprivation of liberty and security by restricting a patients lawful access to medicine was not in accordance with the principles of fundamental justice because no person should be required to recruit the services of alleged criminals in order to satisfy a legal entitlement. The rule of law considerations were outlined as follows: The states obligation to obey the law is central to the very existence of the rule of law. Without this obligation, there would be no enforceable limit on the states power over individuals. The states obligation to obey its own laws not only serves as an invaluable brake on the exercise of state power against the individual, it also makes the state a role model for its citizens. By adhering to the law, the state encourages its citizenry to do likewise. The states obligation to obey the law is fundamental to our system of justice. No one would argue that it does not have general acceptance among reasonable people We have no hesitation in concluding that the states obligation to obey the law is a principle of fundamental justice. The MMAR [Marihuana Medical Access Regulations] do not require the state to violate the law. They do, however, create an alliance between the Government and the black market whereby

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the Government authorizes the possession of marihuana for medical purposes and the black market supplies the necessary product. The MMAR provide a viable medical exemption to the prohibition against possession of marijuana only as long as there are individuals who are prepared to commit a crime by supplying the necessary medical marijuana to the individuals that the Government has determined are entitled to use the drug. At the same time, the MMAR force seriously ill individuals who have been found to be in need of medical marihuana to consort with criminals to fill that medical need. Forcing sick people to go to the black market to get their medicine can only discourage respect for the law and at the same time signal that the medical needs of these people are somehow not worthy of the same kind of considerations as other medical needs. A Government scheme that depends on the criminal element to deliver the medically necessary product, and that drives those in need of that product to the black market strikes at the same values that underlie the states obligation to obey the law. The MMAR, far from placing the Government in the position of a positive role model or on the moral high ground, are calculated to bring the law into disrepute and devalue the worth and dignity of those individuals to whom the MMAR are applied. The Governments obligation to obey the law must include an obligation to promote compliance with and respect for the law. [Emphasis added.]
Hitzig v. Canada, supra at paras. 113-118

PART V ORDER REQUESTED

212. The Respondents request that the appeal be dismissed.

ALL OF WHICH is respectfully submitted Dated at Toronto this 1st day of May, 2011 ___________________________ Alan N. Young Counsel for the Respondents SCHEDULE A LIST OF AUTHORITIES Para. JURISPRUDENCE Abbot v. Smith, [1964] 3 All ER 762 (Crown Ct.) 87

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Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791 Cheskes v. Ontario (Attorney General) (2007), 87 O.R. (3d) 581 (C.A.) Cochrane v. Ontario (2008), 92 O.R. (3d) 321 (C.A.) Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086 Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989 Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016 FL Receivables Trust 2002-A (Administrator of) v. Cobrand Foods Ltd. (2007), 85 O.R. (3d) 561 (C.A.) Flora v. Ontario Health Insurance Plan (2006), 83 O.R. (3d) 721 (Div. Ct.) Fraser v. Ontario (Attorney General) (2008), 92 O.R. (3d) 481 (C.A.) Hitzig v. Canada (2003), 177 C.C.C. (3d) 449 (Ont. C.A.) Housen v. Nikolaisen, [2002] 2 S.C.R. 235 Hutt v. The Queen, [1978] 2 S.C.R. 476 Lavoie v. Canada (2000), 174 D.L.R. (4th) 588 (F.C.A.) M. v. H., [1999] 2 S.C.R. 3 MacKay v. Manitoba, [1989] 2 S.C.R. 357 Moge v. Moge, [1992] 3 S.C.R. 813 Mussani v. College of Physicians and Surgeons of Ontario (2003), 64 O.R. (3d) 641 (Div. Ct.) Mussani v. College of Physicians and Surgeons of Ontario (2004), 74 O.R. (3d) 1 (C.A.) New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46 Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031 Peloso v. 304255 Ontario Ltd. (1981), 14 B.L.R. 29 (Ont. C.A.) PHS Community Services Society v. Canada (Attorney General) (2008), 293 D.L.R. (4th) 392 (B.C.S.C.) PHS Community Services Society v. Canada (Attorney General) (2010), 314 D.L.R. (4th) 209 (B.C.C.A.) R. v. Abbey (2009), 97 O.R. (3d) 330 (C.A.)

133 175 126, 165 193, 199 178-179, 193 117 160 127, 141 103 193 141 19, 120, 211 100 152 104 160 117 115 179 115 199 117-118 111 183 126, 131 109

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R. v. Badali, [2005] O.J. No. 5802 (Ct. Jus.) R. v. Barrie (1975), 25 C.C.C. (2d) 216 (Ont. Co. Ct.) R. v. Barrow (2001), 54 O.R. (3d) 417 (C.A.) R. v. Baskind (1975), 23 C.C.C. (2d) 268 (Que. C.A.) R. v. Brandes, [1997] O.J. No. 5443 (Ct. Jus. (Prov. Div.)) R. v. Broccolo (1976), 30 C.C.C. (2d) 540 (Ont. Prov. Ct.) R. v. Butler, [1992] 1 S.C.R. 452 R. v. Caringi, [2002] O.J. No. 2367 (Ct. Jus.) R. v. Caroline Howard & Mary Jones, ref. no. t18550702-707 (Old Bailey) R. v. Carroll (1999), 118 B.C.A.C. 219 (C.A.) R. v. Celebrity Enterprises Ltd., [1977] 4 W.W.R. 144 (B.C. Co. Ct.) R. v. Corbeil, [1991] 1 S.C.R. 830 R. v. Downey, [1992] 2 S.C.R. 10 R. v. Demers, [2004] 2 S.C.R. 489 R. v. Dyck (2008), 232 C.C.C. (3d) 450 (Ont. C.A.) R. v. Elizabeth Elye, ref. no. t16930531-45 (Old Bailey) R. v. Evans (1973), 12 C.C.C. (2d) 109 (Que. C.A.) R. v. Friesen (1995) 129 Sask. R. 223 (Q.B.) R. v. Gladue, [1999] 1 S.C.R. 688 R. v. Goltz, [1991] 3 S.C.R. 485 R. v. Grilo (1991), 64 C.C.C. (3d) 53 (Ont. C.A.) R. v. Guan, R. v. Soh, R. v. Look, [1992] O.J. No. 2588 (Ct. Jus. (Prov. Div.)) R. v. Habib (1992), 135 A.R. 162 (C.A.) R. v. Heywood, [1994] 3 S.C.R. 761 R. v. Huang, 2007 BCPC 205 R. v. Ikeda (1978), 42 C.C.C. (2d) 195 (Ont. C.A.) R. v. J.-L.J., [2000] 2 S.C.R. 600 R. v. Jones (1921), 36 C.C.C. 208 (Alta. C.A.) R. v. Juneja, 2009 ABQB 243

186 186 190 186 186 186 106, 115, 146 186 156 186 189 154, 161, 186-187 162, 168 175, 179, 199 178, 193 156 186 190 115 117 189 186 186 19, 117, 174, 199 186 186 109 155 186

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R. v. Keegstra, [1990] 3 S.C.R. 697 R. v. Klaus, [1998] O.J. No. 6513 (Ct. Jus. (Prov. Div.)) R. v. Labaye, [2005] 3 S.C.R. 728 R. v. Levkovic (2008), 235 C.C.C. (3d) 417 (Ont. S.C.) R. v. Lucacko (2002), 59 O.R. (3d) 58 (C.A.) R. v. Manion (2005), 377 A.R. 95 (Prov. Ct.) R. v. Marceau (2010), 77 C.R. (6th) 70 (Que. C.A.) R. v. Malmo-Levine; R. v. Caine, [2003] 3 S.C.R. 571

207 186 147 160 191 191 151, 154 19, 106, 146, 181, 192, 206 186 186 155 117 186 120, 126, 128 117 186 186 186 191 185 120, 183 186 186 110-111, 115 186 190 186 175 110

R. v. McLellan (1980), 55 C.C.C. (2d) 543 (B.C.C.A.) R. v. McNab (2000), 264 A.R. 76 (Prov. Ct.) R. v. Mercier (1908), 13 C.C.C. 475 (Yuk. Terr. Ct.) R. v. Mills, [1999] 3 S.C.R. 761 R. v. Mohammed, [1996] B.C.J. No. 1285 (C.A.) R. v. Morgentaler, [1988] 1 S.C.R. 30 R. v. Morrissey, [2000] 2 S.C.R. 90 R. v. Ng, 2007 BCPC 204 R. v. Nguyen (1992), 16 W.C.B. (2d) 447 (Ont. Ct. Jus. (Prov. Div.)) R. v. Ni (2002), 158 O.A.C. 230 (C.A.) R. v. Odgers (2006), 400 A.R. 322 (Prov. Ct.) R. v. Patterson, [1968] S.C.R. 157 R. v. Parker (2000), 146 C.C.C. (3d) 193 (Ont. C.A.) R. v. Pierce and Golloher (1982), 66 C.C.C. (2d) 388 (Ont. C.A.) R. v. Ponomarey, [2007] O.J. No. 271 (Ct. Jus.) R. v. R.E.M., [2008] 3 S.C.R. 3 R. v. Ramberran, [1978] 1 W.W.R. 19 (Man. Prov. Ct.) R. v. Ranville (1995), 129 Sask. R. 318 (Q.B.) R. v. Saengchanh (2004), 51 Imm. L.R. (3d) 91 (Alta. Prov. Ct.) R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577 R. v. Sheppard, [2002] 1 S.C.R. 869

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R. v. Smith, [1987] 1 S.C.R. 1045 R. v. St-Onge (2001), 155 C.C.C. (3d) 311 (Ont. C.A.) R. v. Stevens (1995), 96 C.C.C. (3d) 238 (Man. C.A.) R. v. Suen, [1995] O.J. No. 4409 (Ct. Jus. (Prov. Div.)) R. v. Tannenbaum, [2006] M.J. No. 156 (Q.B.) R. v. Tardif (1995), 97 C.C.C. (3d) 381 (Que. C.A.) R. v. Thomas Johnson, ref. no. t18490226-755 (Old Bailey) R. v. Vaillancourt, [1987] 2 S.C.R. 636 R. v. Webb, [1995] S.J. No. 252 (Q.B.) R. v. Wong (1977), 33 C.C.C. (2d) 6 (Alta. S.C.A.D.) R. v. Worthington (1972) 10 C.C.C. (2d) 311 (Ont. C.A.) R. v. Woszczyna (1983), 6 C.C.C. (3d) 221 (Ont. C.A.) R. v. Yee, [1982] B.C.J. No. 1905 (C.A.) R. v. Yeung, [2001] B.C.J. No. 2045 (Prov. Ct.) R. v. Zakreski (2004), 362 A.R. 10 (Prov. Ct.) R. v. Zundel, [1992] 2 S.C.R. 731 Reference Re: B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 Reference Re: Firarms Act (Can.), [2000] 1 S.C.R. 783 Reference Re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 Reference re: Unemployment Insurance Act (Can.), ss. 22 and 23, [2005] 2 S.C.R. 669 RJR McDonald v. Canada (Attorney General), [1995] 3 S.C.R. 199 Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519

117 186 160 186 186 186 156 205 186 186 161, 186187 186 186 186 186 160, 175 199 206 4, 19, 22, 119, 151 115 98-99 19, 120, 126, 129, 165, 181, 205 171 165 189 87 135, 199

Schachter v. Canada, [1992] 2 S.C.R. 976 Sfetkopoulos v. Canada (Attorney General), [2008] 3 F.C.R. 399 (F.C.) Shaw v. Director of Public Prosecutions, [1961] All ER 446 Singleton v. Ellison, [1985] 1 Q.B. 607 Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3

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Tranchemontagne v. Ontario (Director, Disability Support Program) (2010), 102 O.R. (3d) 97 (C.A.) United States v. Burns [2001] 1 S.C.R. 283 Victoria (City) v. Adams (2009), 313 D.L.R. (4th) 29 (B.C.C.A.) Vriend v. Alberta, [1998] 1 S.C.R. 493 Ward v. Canada (Attorney General), [2002] 1 S.C.R. 569 LITERATURE Blackstone, William. Commentaries on the Laws of England (London: Dawson, 1966) Coke, Edward. The Third Part of the Institutes of the Laws of England (Buffalo: W.S. Hein, 1986) Hawkins, William. 1 Pleas of the Crown 1716-1721 (London: Professional Books Ltd., 1973) Stephen, James Fitzjames. A General View of the Criminal Law of England 2d ed. (London: Macmillian and Co., 1890)

107 134 142 139 206 154 154 154 154

SCHEDULE B STATUES AND REGULATIONS No additional statutes and regulations are relied upon by the Respondents.

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Court File No. C52799 & C52814 Terri Jean Bedford, Amy Lebovitch, Valerie Scott Applicants (Respondents) AND Attorney General of Canada Respondent (Appellant) AND Attorney General of Ontario Intervener (Appellant)

COURT OF APPEAL FOR ONTARIO

FACTUM OF THE RESPONDENTS

Alan N. Young Barrister & Solicitor Osgoode Hall Law School York University 4700 Keele Street Toronto, Ontario M3J 1P3 Tel: 416-736-5595 Fax: 416-736-5736 Email: ayoung@osgoode.yorku.ca Counsel for the Respondents