application judge found that the evidence supported this proposition and the Court of Appeal agreed. For reasons set out below, I am of the same view. The prohibitions at issue do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks. Sections 197 and 210: Keeping a Common Bawdy-House It is not an offence to sell sex for money. The bawdy-house provisions, however, make it an offence to do so in any “place” that is “kept or occupied” or “resorted to” for the purpose of prostitution (ss. 197 and 210(1) of the Code). The reach of these provisions is broad. “Place” includes any defined space, even if unenclosed and used only temporarily (s. 197(1) of the Code; R. v. Pierce and Golloher (1982), 37 O.R. (2d) 721 (C.A.)). And by definition, it applies even if resorted to by only one person (s. 197(1); R. v. Worthington (1972), 10 C.C.C. (2d) 311 (Ont. C.A.)). The practical effect of s. 210 is to confine lawful prostitution to two categories: street prostitution and (application decision, at para. 385). where the john comes to the prostitute’s residence, are prohibited. Out-calls, where the prostitute goes out and meets the client at a designated location, such as the
clients. In Vancouver, for example, “Grandma’s House” was established to support street workers in the Downtown Eastside, at about the same time as fears were growing that a serial killer was prowling the streets — fears which materialized in the notorious Robert Pickton. Street prostitutes — who the application judge found are largely the most vulnerable class of prostitutes, and who face an alarming amount of violence (para. 361) — were able to bring clients to Grandma’s House. However, charges were laid under s. 210, and although the charges were eventually stayed — four years after they were laid — Grandma’s House was shut down (supplementary affidavit of Dr. John Lowman, May 6, 2009, J.A.R., vol. 20, at p. 5744). For some prostitutes, particularly those who are destitute, safe houses such as Grandma’s House may be critical. For these people, the ability to work in brothels or hire security, even if those activities were lawful, may be illusory. I conclude, therefore, that the bawdy-house provision negatively impacts the security of the person of prostitutes and engages s. 7 of the Charter. Section 212(1)(j): Living on the Avails of Prostitution Section 212(1)(j) criminalizes living on the avails of prostitution of another person, wholly or in part. targeting parasitic relationships (R. v. Downey, [1992] 2 S.C.R. 10), it has a broad reach. As interpreted by the courts, it makes it a crime for anyone to supply a service to a prostitute, because she is a prostitute (R. v. Grilo (1991), 2 O.R. (3d) 514 (C.A.); R. v. Barrow (2001), 54 O.R. (3d) 417 (C.A.)). In effect, it prevents a prostitute from hiring bodyguards, drivers
Most recently, in PHS, this Court found that the Minister’s decision not to extend a safe injection site’s exemption from drug possession laws was arbitrary. The purpose of drug possession laws was the protection of health and public safety, and the services provided by the safe injection site actually contributed to these objectives. Thus, the effect of not extending the exemption — that is, prohibiting the safe injection site from operating — was contrary to the objectives of the drug possession laws. Another way in which laws may violate our basic values is through what the cases have called “overbreadth”: the law goes too far and interferes with some conduct that bears no connection to its objective. In R. v. Heywood, [1994] 3 S.C.R. 761, the accused challenged a vagrancy law that prohibited offenders convicted of listed offences from “loitering” in public parks. The majority of the Court found that the law, which aimed to protect children from sexual predators, was overbroad; insofar as the law applied to offenders who did not constitute a danger to children, and insofar as it applied to parks where children were unlikely to be present, it was unrelated to its objective. In R. v. Demers, 2004 SCC 46, [2004] 2 S.C.R. 489, the challenged provisions of the Criminal Code prevented an accused who was found unfit to stand trial from receiving an absolute discharge, and subjected the accused to indefinite appearances before a review board. The purpose of the provisions was “to allow for the ongoing treatment or assessment of the accused in order for him or her to become
question is different — whether the negative impact of a law on the rights of individuals is proportionate to the pressing and substantial goal of the law in furthering the public interest. The question of justification on the basis of an overarching public goal is at the heart of s. 1, but it plays no part in the s. 7 analysis, which is concerned with the narrower question of whether the impugned law infringes individual rights. As a consequence of the different questions they address, s. 7 and s. 1 work in different ways. Under s. 1, the government bears the burden of showing that a law that breaches an individual’s rights can be justified having regard to the government’s goal. Because the question is whether the broader public interest justifies the infringement of individual rights, the law’s goal must be pressing and substantial. The “rational connection” branch of the s. 1 analysis asks whether the law was a rational means for the legislature to pursue its objective. “Minimal impairment” asks whether the legislature could have designed a law that infringes rights to a lesser extent; it considers the legislature’s reasonable alternatives. At the final stage of the s. 1 analysis, the court is required to weigh the negative impact of the law on people’s rights against the beneficial impact of the law in terms of achieving its goal for the greater public good. The impacts are judged both qualitatively and quantitatively. Unlike individual claimants, the Crown is well placed to call the social science and expert evidence required to justify the law’s impact in terms of society as a whole.