Bedford v. Can. (A.G.),

• Jurisdiction: Ontario
• Judge: Doherty, Rosenberg, Feldman, MacPherson and Cronk, JJ.A.
• Neutral Citation: 2012 ONCA 186
• Citation: (2012), 290 O.A.C. 236 (CA),2012 ONCA 186,109 OR (3d) 1,346 DLR (4th) 385,282 CCC (3d) 1,91 CR (6th) 257,[2012] CarswellOnt 3557,[2012] OJ No 1296 (QL),100 WCB (2d) 704,290 OAC 236,109 O.R. (3d) 1,346 D.L.R. (4th) 385,[2012] O.J. No 1296 (QL),(2012), 290 OAC 236 (CA),290 O.A.C. 236
• Date: 26 March 2012
• Court: Court of Appeal (Ontario)

Bedford v. Can. (A.G.) (2012), 290 O.A.C. 236 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. AP.002

Attorney General of Canada (appellant) v. Attorney General of Ontario (appellant) and Terri Jean Bedford, Amy Lebovitch and Valerie Scott (respondents)

(C52799; C52814; 2012 ONCA 186)

Indexed As: Bedford et al. v. Canada (Attorney General)

Ontario Court of Appeal

Doherty, Rosenberg, Feldman, MacPherson and Cronk, JJ.A.

March 26, 2012.

Summary:

The applicants challenged the following three Criminal Code provisions that indirectly restricted the practice of prostitution by criminalizing various related activities. Section 210, which prohibited the operation of common bawdy-houses, prevented prostitutes from offering their services out of fixed indoor locations such as brothels, or even their own homes. Section 212(1)(j), which prohibited living on the avails of prostitution, prevented anyone, including but not limited to pimps, from profiting from another's prostitution. Section 213(1)(c), which prohibited communicating for the purpose of prostitution in public, prevented prostitutes from offering their services in public, and particularly on the streets.

The Ontario Superior Court, in a decision reported at [2010] O.T.C. Uned. 4264, held that the provisions were unconstitutional and had to be struck down because they did not accord with the principles of fundamental justice enshrined in s. 7 of the Canadian Charter of Rights and Freedoms. The court reasoned that the challenged laws exacerbated the harm that prostitutes already faced by preventing them from taking steps that could enhance their safety. Those steps included: working indoors, alone or with other prostitutes (prohibited by s. 210); paying security staff (prohibited by s. 212(1)(j)); and screening customers encountered on the street to assess the risk of violence (prohibited by s. 213(1)(c)). The court also held that s. 213(1)(c) was unconstitutional and had to be struck down because, inter alia, it constituted a prima facie infringement of s. 2(b) of the Charter and could not be saved by s. 1. The court issued supplementary reasons respecting a stay of the judgment and costs. See [2010] O.T.C. Uned. 5712. The Attorney Generals of Canada and Ontario appealed the decision on the merits.

The Ontario Court of Appeal allowed the appeal in part. The court agreed that the prohibition on common bawdy-houses for the purpose of prostitution was unconstitutional and had to be struck down. However, it suspended the declaration of invalidity for 12 months to give Parliament an opportunity to redraft a Charter-compliant provision. The court also held that the prohibition on living on the avails of prostitution infringed s. 7 of the Charter to the extent that it criminalized non-exploitative commercial relationships between prostitutes and other people. However, the court did not strike down the prohibition, but read in words of limitation so that the prohibition applied only to those who lived on the avails of prostitution in circumstances of exploitation. The court, MacPherson and Cronk, JJ.A., dissenting on this point, overturned the application judge's conclusion that the ban on communicating in public for the purpose of prostitution was unconstitutional. The court extended the stay on the application judge's decision for a further 30 days so that all parties could consider their positions.

Civil Rights - Topic 201

Life - General - The Ontario Court of Appeal stated that "s. 7 of the Charter declares: 'Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.' Although the language of the English version of s. 7 might suggest otherwise, the case law has established that s. 7 creates a single constitutional right: the right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice. There is no freestanding right to life, liberty and security of the person ... Legislation that limits the right to life, liberty and security of the person will attract s. 7 scrutiny. It will, however, survive that scrutiny and avoid judicial nullification unless it is shown to be contrary to the principles of fundamental justice. ... An applicant alleging a breach of s. 7 must demonstrate on the balance of probabilities that: (1) the challenged legislation interferes with or limits the applicant's right to life, or the right to liberty, or the right to security of the person; and (2) that the interference or limitation is not in accordance with the principles of fundamental justice. While non-compliance with s. 7 can theoretically be justified under s. 1 of the Charter, in reality s. 1 will rarely, if ever, trump a s. 7 infringement ..." - See paragraphs 87 to 89.

Civil Rights - Topic 721

Liberty - Charter of Rights and Freedoms - General - [See Civil Rights - Topic 201 ].

Civil Rights - Topic 725

Liberty - Charter of Rights and Freedoms - Liberty defined - The applicants challenged three Criminal Code provisions that indirectly restricted the practice of prostitution by criminalizing various related activities - On appeal, all parties agreed that the risk of imprisonment flowing from conviction for any of the challenged offences was sufficient to engage the applicants' liberty interests under s. 7 of the Charter - An intervener submitted that a person's decision to engage in prostitution involved personal life choices that were also protected under the right to liberty - The Ontario Court of Appeal rejected the submission - The court stated that "To accept the interveners' submission would be to read into s. 7 a constitutional protection for what are economic or commercial decisions. That reading would be inconsistent with the deliberate decision to exclude property-related rights from the ambit of s. 7" - See paragraphs 92 to 94.

Civil Rights - Topic 1200

Security of the person - General - [See Civil Rights - Topic 201 ].

Civil Rights - Topic 1205

Security of the person - Security of the person defined - The Ontario Court of Appeal stated that "The phrase 'security of the person' defies exhaustive definition. Its meaning is best articulated in the context of the specific facts and claims advanced in a given case. ... The preservation of one's physical safety and well-being is a fundamental component of personal autonomy. Personal autonomy lies at the heart of the right to security of the person." - See paragraphs 97 and 99.

Civil Rights - Topic 1210

Security of the person - General - Denial of security - What constitutes - The applicants challenged three Criminal Code provisions that indirectly restricted the practice of prostitution by criminalizing various related activities - Section 210 prohibited the operation of common bawdy-houses, which prevented prostitutes from offering their services out of fixed indoor locations such as brothels, or even their own homes - Section 212(1)(j) prohibited living on the avails of prostitution, which prevented anyone, including but not limited to pimps, from profiting from another's prostitution - Section 213(1)(c) prohibited communicating for the purpose of prostitution in public, which prevented prostitutes from offering their services in public, and particularly on the streets - An applications judge held that the provisions had to be struck down because they did not accord with the principles of fundamental justice enshrined in s. 7 of the Charter - She reasoned that the challenged laws exacerbated the harm that prostitutes already faced by preventing them from taking steps that could enhance their safety - Those steps included: working indoors, alone or with other prostitutes (prohibited by s. 210); paying security staff (prohibited by s. 212(1)(j)); and screening customers encountered on the street to assess the risk of violence (prohibited by s. 213(1)(c)) - The Ontario Court of Appeal agreed with the application judge that the current legal regime, and specifically the challenged Criminal Code provisions, interfered with prostitutes' security of the person - See paragraphs 95 to 142.

Civil Rights - Topic 1860.1

Freedom of speech or expression - Limitations on - Communications between prostitute and client - The applicants challenged three Criminal Code provisions that indirectly restricted the practice of prostitution by criminalizing various related activities, including s. 213(1)(c) which prohibited communicating for the purpose of prostitution in public - This prevented prostitutes from offering their services in public, and particularly on the streets - An applications judge held that the provision was unconstitutional and had to be struck down because, inter alia, it constituted a prima facie infringement of s. 2(b) of the Charter and, departing from the Prostitution Reference case (1990 SCC) because of "the changed context" in the 20 years since that case was decided, it could not be saved by s. 1 - She reasoned that the challenged laws exacerbated the harm that prostitutes already faced by preventing them from taking steps that could enhance their safety - Those steps included screening customers encountered on the street to assess the risk of violence (prohibited by s. 213(1)(c)) - The Attorney Generals of Canada and Ontario appealed, submitting, inter alia, that the applicants were precluded from challenging the constitutionality of s. 213(1)(c) by the decision in the Prostitution Reference (1990 SCC), coupled with the principle of stare decisis - The Ontario Court of Appeal agreed that the application judge erred in reconsidering whether or not the communicating provision was an unjustified infringement of s. 2(b) of the Charter - The Supreme Court had definitively decided that issue in the Prostitution Reference and only that court could revisit it - The court stated that "... the need for a robust application of stare decisis is particularly important in the context of Charter litigation. Given the nature of the s. 1 test, especially in controversial matters, the evidence and legislative facts will continue to evolve, as will values, attitudes and perspectives. But this evolution alone is not sufficient to trigger a reconsideration in the lower courts." - See paragraphs 71 to 85.

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - [See Civil Rights - Topic 201 ].

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - The Ontario Court of Appeal stated that "Section 7 of the Charter has two components: the deprivation of a right (life, liberty and security of the person) and a subsequent inquiry into the nature of that deprivation (whether it accords with the principles of fundamental justice)." - See paragraph 61.

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - The Ontario Court of Appeal provided an overview of the principles of fundamental justice - The court stated that, in the case before it, three principles of fundamental justice were implicated: arbitrariness, overbreadth and gross disproportionality - While each principle was to be treated as a distinct concept, there was significant overlap among them - When the court considered arbitrariness, it asked whether the challenged law bore no relation to, or was inconsistent with, its legislative objective - Arbitrariness was established where a law deprived a person of his or her s. 7 rights for no valid purpose - The court adopted the more conservative test for arbitrariness that required proof of inconsistency, and not merely a lack of necessity - Necessity was a key component of the overbreadth analysis - When a court considered overbreadth, it asked whether the challenged law deprived a person of his or her s. 7 rights more than necessary to achieve the legislative objective - In analysing whether a statutory provision offended the principle against overbreadth, the court had to accord the legislature deference and not interfere with legislation simply because it might have chosen a different means of accomplishing the objective - When a court considered gross disproportionality, it asked whether the deprivation of a person's s. 7 rights was so extreme as to be per se disproportionate to any legitimate government interest - The court stated that the fluidity of these concepts had led some to question whether there was now only one principle of fundamental justice, gross disproportionality, or whether arbitrariness and overbreadth remained independent principles - The court held that they remained three distinct, if closely related, principles - See paragraphs 143 to 155.

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - The Ontario Court of Appeal held that the bawdy-house provisions of the Criminal Code (ss. 210(1) and 210(2)) violated the principles of fundamental justice - The provisions were aimed at combatting neighbourhood disruption or disorder and safeguarding public health and safety (interests of the community) - There was no evidence of a broader objective of controlling the institutionalization or commercialization of prostitution with the ultimate aim of eradicating or discouraging prostitution - The prohibition was not arbitrary, because it targeted many of the social harms associated with bawdy-houses - However, it was overbroad because it captured conduct that was unlikely to lead to the problems that Parliament sought to curtail - In particular, the provisions prohibited a single prostitute operating discreetly by herself, in her own premises - Further, the impact of the bawdy-house prohibition was grossly disproportionate to the legislative objective, because the record was clear that the safest way to sell sex was for a prostitute to work indoors, in a location under her control - It followed that the prohibition could not be justified as a reasonable limit under s. 1 - The court suspended the declaration of invalidity for 12 months to provide Parliament an opportunity to draft a Charter-compliant provision if it chose - See paragraphs 172 to 218.

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - The Ontario Court of Appeal held that the prohibition against living on the avails of prostitution in the Criminal Code (s. 212(1)(j)) violated the principles of fundamental justice (Charter, s. 7) - The provision was not arbitrary, as it targeted the legislative objective of preventing the exploitation of prostitutes by pimps - However, it was overbroad because it captured conduct that was in no way exploitative - Further, it was grossly disproportionate to the extent that it criminalized non-exploitative commercial relationships between prostitutes and others, and particularly with those who might enhance prostitutes' safety - Because it was overbroad and grossly disproportionate to its objectives, it could not be justified under s. 1 of the Charter - The court held that the Charter breach could be cured by reading words of limitation into s. 212(1)(j) so that the prohibition was against living on the avails of prostitution in circumstances of exploitation - The court could employ this remedy despite the fact that the Attorney General of Canada did not seek it - The reason was that, by reading in words of limitation, it proposed to clarify the intent of the provision, rather than amend it - See paragraphs 219 to 278.

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - The Ontario Court of Appeal agreed with an applications judge that the prohibition against communicating for the purpose of prostitution in the Criminal Code did not violate the principles of fundamental justice (Charter, s. 7) - Just because a law was largely ineffective did not necessarily mean that it was arbitrary or irrational - Further, the provision was not overbroad - The application judge was concerned that a more narrowly tailored law might actually increase the danger to prostitutes by moving their activities to isolated areas - The court discussed the test for gross disproportionality and held that the provision was not grossly disproportionate - In coming to that conclusion, the court took into account that it had just concluded in the same case that the bawdy-house prohibition was unconstitutional, which gave prostitutes the ability to move indoors - See paragraphs 279 to 324.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 201 , Civil Rights - Topic 1860.1 and fourth Civil Rights - Topic 8344 ].

Civil Rights - Topic 8380.1

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Reading in - [See fifth Civil Rights - Topic 8344 ].

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing) - The applicants challenged three Criminal Code provisions that indirectly restricted the practice of prostitution by criminalizing various related activities - One applicant currently worked independently as a prostitute - The other two wanted to resume working as prostitutes if the litigation was successful - The applications judge struck down the provisions - The Attorney Generals of Canada and Ontario appealed - They submitted, inter alia, that only the first applicant had standing - The Ontario Court of Appeal held that where the first applicant had private interest standing to challenge the three Criminal Code provisions, all the constitutional issues were squarely placed before the application judge and now before the Court of Appeal - Accordingly, the issue of the other two applicants' standing was irrelevant and the court declined to address it - See paragraphs 48 to 50.

Courts - Topic 5

Stare decisis - Authority of judicial decisions - General principles - Authority and use of precedents - General - The Ontario Court of Appeal stated that "The notion of binding precedent, often used interchangeably with the principle of stare decisis, requires that courts render decisions that are consistent with the previous decisions of higher courts. The rationale for the rule is self-evident: it promotes consistency, certainty and predictability in the law, sound judicial administration, and enhances the legitimacy and acceptability of the common law ... the traditional division between ratio and obiter has become more nuanced. It is now recognized that there is a spectrum of authoritativeness on which the statements of an appellate court may be placed." - The court stated that the boundary between binding and non-binding statements of the Supreme Court of Canada was based on an inquiry into the Court's substantive reasoning process - The words of the Supreme Court did not bind lower courts when those words were sufficiently tangential to the disposition of the case - See paragraphs 56 to 60 and 69.

Courts - Topic 5

Stare decisis - Authority of judicial decisions - General principles - Authority and use of precedents - General - The applicants challenged three Criminal Code provisions that indirectly restricted the practice of prostitution by criminalizing various related activities - Two of the provisions were s. 210 and s. 213(1)(c) - Section 210 prohibited the operation of common bawdy-houses, which prevented prostitutes from offering their services out of fixed indoor locations such as brothels, or even their own homes - Section 213(1)(c) prohibited communicating for the purpose of prostitution in public, which prevented prostitutes from offering their services in public, and particularly on the streets - An applications judge held that the provisions were unconstitutional and had to be struck down because they did not accord with the principles of fundamental justice enshrined in s. 7 of the Charter - She reasoned that the challenged laws exacerbated the harm that prostitutes already faced by preventing them from taking steps that could enhance their safety - Those steps included: working indoors, alone or with other prostitutes (prohibited by s. 210) and screening customers encountered on the street to assess the risk of violence (prohibited by s. 213(1)(c)) - The Attorney Generals of Canada and Ontario appealed - They submitted, inter alia, that the applicants were precluded from challenging the constitutionality of ss. 210 and 213(1)(c) by the decision in the Prostitution Reference (1990 SCC), coupled with the principle of stare decisis - The Ontario Court of Appeal held that the application judge did not err in considering whether or not the bawdy-house and communicating provisions violated s. 7 of the Charter because both the legal issues raised, and the legal framework to be applied, were different now than they were at the time of the Prostitution Reference - The applicants' s. 7 security of the person was not engaged in the Prostitution Reference - Further, the number of recognized "principles of fundamental justice" referenced in the second half of s. 7 had expanded over the last 20 years - In 1990 the Supreme Court considered only vagueness and the perceived inconsistency in Parliament's response to prostitution, whereas the application judge was asked to evaluate the infringements against the principles of arbitrariness, overbreadth, and gross disproportionality - It could not be said that the Prostitution Reference decided the substantive s. 7 issues before the application judge - Therefore, stare decisis did not apply, and the application judge did not err by conducting her own analysis and coming to her own conclusions - See paragraphs 51 to 70.

Courts - Topic 19

Stare decisis - Authority of judicial decisions - Constitutional issues - [See Civil Rights - Topic 1860.1 ].

Courts - Topic 126.1

Stare decisis - Authority of judicial decisions - Courts of superior jurisdiction - Supreme Court of Canada - General - [See both Courts - Topic 5 ].

Courts - Topic 129

Stare decisis - Authority of judicial decisions - Courts of superior jurisdiction - Supreme Court of Canada - Obiter dictum - [See first Courts - Topic 5 ].

Criminal Law - Topic 766

Sexual offences - Living on the avails of prostitution - General - The applicants challenged three Criminal Code provisions that indirectly restricted the practice of prostitution by criminalizing various related activities - Section 210 prohibited the operation of common bawdy-houses, which prevented prostitutes from offering their services out of fixed indoor locations such as brothels, or even their own homes - Section 212(1)(j) prohibited living on the avails of prostitution, which prevented anyone, including but not limited to pimps, from profiting from another's prostitution - Section 213(1)(c) prohibited communicating for the purpose of prostitution in public, which prevented prostitutes from offering their services in public, and particularly on the streets - The Ontario Court of Appeal held that the challenged laws did not reflect an overarching legislative objective of eradicating or discouraging prostitution - The court stated that if anything could be gleaned from the history of the treatment of prostitution in Canada, it was that acts of prostitution associated with public nuisance, and the exploitation of prostitutes by pimps were to be prohibited, but prostitution itself was tolerated - See paragraphs 156 to 169.

Criminal Law - Topic 766

Sexual offences - Living on the avails of prostitution - General - [See fifth Civil Rights - Topic 8344 ].

Criminal Law - Topic 787

Sexual offences, public morals and disorderly conduct - Soliciting - Communications to obtain prostitute's services - [See sixth Civil Rights - Topic 8344 and Criminal Law - Topic 766 ].

Criminal Law - Topic 871

Disorderly houses - Bawdy-houses - General - [See fourth Civil Rights - Topic 8344 and Criminal Law - Topic 766 ].

Practice - Topic 8800

Appeals - General principles - Duty of appellate court regarding findings of fact - The Ontario Court of Appeal stated that "findings of social or legislative fact are not accorded the strong appellate deference given to adjudicative fact-finding ... Adjudicative facts, the standard fare of litigation, speak to the who, what, where, when and why of a specific event or claim. Social facts describe conditions, causes or relationships at a societal rather than an individual level. Thus, a finding that an individual is a racist is an adjudicative fact, while a finding that society is racist is a social fact. Unlike adjudicative facts, social facts are not readily provable through the firsthand testimony of lay witnesses. Social facts are often proven through an amalgam of testimony of the experiences of individuals, and the opinions of experts. Legislative facts, cousins of social facts, are facts that speak to the meaning or effect of legislation. These facts are often established through Parliamentary debates and government reports of various types ..." - See paragraphs 127 and 128.

Statutes - Topic 502

Interpretation - General principles - Intention of legislature - [See first Criminal Law - Topic 766 ].

Cases Noticed:

Reference Re ss. 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1, consd. [para. 21].

R. v. Rockert, [1978] 2 S.C.R. 704; 19 N.R. 308, refd to. [para. 29].

Shaw v. Director of Public Prosecutions, [1962] A.C. 220 (H.L.), refd to. [para. 30].

R. v. Downey and Reynolds, [1992] 2 S.C.R. 10; 136 N.R. 266; 125 A.R. 342; 14 W.A.C. 342, refd to. [para. 30].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 32].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 44].

Polowin (David) Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 199 O.A.C. 266; 76 O.R.(3d) 161 (C.A.), refd to. [para. 56].

R. v. Henry (D.B.) et al., [2005] 3 S.C.R. 609; 342 N.R. 259; 376 A.R. 1; 360 W.A.C. 1; 219 B.C.A.C. 1; 361 W.A.C. 1; 2005 SCC 76, appld. [para. 58].

R. v. Prokofiew (E.) (2010), 264 O.A.C. 174; 100 O.R.(3d) 401; 2010 ONCA 423, leave to appeal granted (2010), 413 N.R. 392 (S.C.C.), appld. [para. 59].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 64].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, folld. [para. 68].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161, refd to. [para. 68].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [para. 68].

Wakeford v. Canada (Attorney General), [2001] O.T.C. 84; 81 C.R.R.(2d) 342 (Sup. Ct.), affd. (2001), 156 O.A.C. 385 (C.A.), leave to appeal refused (2002), 300 N.R. 197 (S.C.C.), refd to. [para. 77].

Leeson et al. v. University of Regina et al. (2007), 301 Sask.R. 316; 2007 SKQB 252, refd to. [para. 80].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 88].

Cunningham v. Canada, [1993] 2 S.C.R. 143; 151 N.R. 161; 62 O.A.C. 243, refd to. [para. 88].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 88].

PHS Community Services Society et al. v. Canada (Attorney General) (2011), 421 N.R. 1; 310 B.C.A.C. 1; 526 W.A.C. 1; 2011 SCC 44, appld. [para. 88].

R. v. Parker (T.) (2000), 135 O.A.C. 1; 49 O.R.(3d) 481 (C.A.), refd to. [para. 88].

R. v. D.B., [2008] 2 S.C.R. 3; 374 N.R. 221; 237 O.A.C. 110; 2008 SCC 25, refd to. [para. 89].

R. v. Clay (C.J.) (2003), 313 N.R. 252; 181 O.A.C. 350; 2003 SCC 75, refd to. [para. 94].

Siemens et al. v. Manitoba (Attorney General) et al., [2003] 1 S.C.R. 6; 299 N.R. 267; 173 Man.R.(2d) 1; 293 W.A.C. 1; 2003 SCC 3, refd to. [para. 94].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, refd to. [para. 99].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, dist. [para. 106].

United States of America v. Burns and Rafay, [2001] 1 S.C.R. 283; 265 N.R. 212; 148 B.C.A.C. 1; 243 W.A.C. 1; 151 C.C.C.(3d) 97; 2001 SCC 7, dist. [para. 106].

Khadr v. Prime Minister (Can.) et al., [2010] 1 S.C.R. 44; 397 N.R. 294; 2010 SCC 3, dist. [para. 106].

Blencoe v. Human Rights Commission (B.C.), [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, dist. [para. 106].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 127].

Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827; 320 N.R. 49; 348 A.R. 201; 321 W.A.C. 201; 2004 SCC 33, refd to. [para. 127].

R. v. Spence (S.A.), [2005] 3 S.C.R. 458; 342 N.R. 126; 206 O.A.C. 150; 2005 SCC 71, refd to. [para. 128].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161; 2001 SCC 2, refd to. [para. 140].

R. v. Dyck (A.) (2008), 236 O.A.C. 26; 90 O.R.(3d) 409; 2008 ONCA 309, refd to. [para. 151].

Cochrane v. Ontario (Attorney General) (2008), 242 O.A.C. 192; 92 O.R.(3d) 321 (C.A.), leave to appeal refused (2009), 398 N.R. 398; 262 O.A.C. 395 (S.C.C.), refd to. [para. 151].

R. v. Lindsay (S.P.) et al. (2009), 251 O.A.C. 1; 97 O.R.(3d) 567 (C.A.), leave to appeal refused (2010), 405 N.R. 392; 405 N.R. 393 (S.C.C.), refd to. [para. 151].

United States of America et al. v. Nadarajah (2010), 278 O.A.C. 1; 266 C.C.C.(3d) 447; 2010 ONCA 859, leave to appeal refused (2011), 425 N.R. 398 (S.C.C.), refd to. [para. 151].

R. v. Demers (R.), [2004] 2 S.C.R. 489; 323 N.R. 201; 2004 SCC 46, refd to. [para. 154].

R. v. Mara (P.) et al. (1996), 88 O.A.C. 358; 27 O.R.(3d) 643 (C.A.), affd. [1997] 2 S.C.R. 630; 213 N.R. 41; 101 O.A.C. 1, dist. [para. 159].

R. v. Corbeil, [1991] 1 S.C.R. 830; 124 N.R. 241; 40 Q.A.C. 283, refd to. [para. 174].

R. v. Patterson, [1968] S.C.R. 157, refd to. [para. 175].

R. v. Worthington (1972), 10 C.C.C.(2d) 311 (Ont. C.A.), refd to. [para. 177].

R. v. Cohen, [1939] S.C.R. 212, refd to. [para. 177].

R. v. Patterson, [1967] 1 O.R. 429 (C.A.), refd to. [para. 188].

R. v. Butler and McCord, [1992] 1 S.C.R. 452; 134 N.R. 81; 78 Man.R.(2d) 1; 16 W.A.C. 1, refd to. [para. 189].

R. v. Zundel (No. 2), [1992] 2 S.C.R. 731; 140 N.R. 1; 56 O.A.C. 161, refd to. [para. 191].

R. v. Grilo (1991), 44 O.A.C. 284; 2 O.R.(3d) 514 (C.A.), refd to. [para. 228].

R. v. Barrow (2001), 146 O.AC. 363; 54 O.R.(3d) 417 (C.A.), refd to. [para. 232].

R. v. Foster (1984), 54 A.R. 372; 13 C.C.C.(3d) 435 (C.A.), refd to. [para. 257].

R. v. Boston, [1988] B.C.J. No. 1185 (C.A.), refd to. [para. 257].

R.v. Vance - see R. v. C.L.V.

R. v. C.L.V., [2004] Sask.R. Uned. 114; 2004 SKCA 77, refd to. [para. 257].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 266].

Baron et al. v. Minister of National Revenue et al., [1993] 1 S.C.R. 416; 146 N.R. 270, dist. [para. 273].

R. v. Hutt, [1978] 2 S.C.R. 476; 19 N.R. 331, refd to. [para. 281].

R. v. Head (1987), 36 C.C.C.(3d) 562 (B.C.C.A.), refd to. [para. 281].

R. v. Morrisey (M.L.) (No. 2), [2000] 2 S.C.R. 90; 259 N.R. 95; 187 N.S.R.(2d) 1; 585 A.P.R. 1; 2000 SCC 39, refd to. [para. 300].

PHS Community Services Society et al. v. Canada (Attorney General) (2010), 281 B.C.A.C. 161; 475 W.A.C. 161; 100 B.C.L.R.(4th) 269; 2010 BCCA 15, refd to. [para. 314].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 356].

Statutes Noticed:

Criminal Code, R.S.C. 1985, sect. 197(1) [para. 14]; sect. 210(1), sect. 210(2), sect. 212(1)(j), sect. 213(1)(c) [para. 13]; sect. 213(2) [para. 15].

Authors and Works Noticed:

Canada, House of Commons, Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-49 (October 31, 1985), p. 7:10 [para. 209, footnote 10].

Canada, Special Committee on Pornography and Prostitution, Report of (Fraser Report) (1985), p. 404 [para. 180].

Canada, Standing Committee on Justice and Human Rights, Subcommittee on Solicitation Laws, The Challenge of Change: A Study of Canada's Criminal Prostitution Laws (December 2006), pp. 62, 63, 64 [para. 352]; 65 [paras. 349, 352].

Fraser Report - see Canada, Special Committee on Pornography and Prostitution.

Halsbury's Laws of Canada, Civil Procedure I (1st Ed. 2008), p. 282 [para. 57].

Hogg, P.W., Constitutional Law of Canada (5th Ed.) (Looseleaf 1996), paras. 47.7(b) [para. 94]; 47.20 [para. 88]; 47.33 [para. 90]; 60.2(f) [para. 140].

Rogerson, Carol, The Judicial Search for Appropriate Remedies Under the Charter: The Examples of Overbreadth and Vagueness, in Sharpe, Robert J., Charter Litigation (1987), p. 288 [para. 266].

Sharpe, Robert J., Charter Litigation (1987), p. 288 [para. 266].

Counsel:

Michael H. Morris, Gail Sinclair, Mathew Sullivan, and Roy Lee, for the appellant, Attorney General of Canada;

Jamie C. Klukach, Christine E. Bartlett-Hughes and Megan Stephens, for the appellant, Attorney General of Ontario;

Alan N. Young, Daniel Sheppard, Sabrina Pingitore, Ron Marzel and Stacey Nichols, for the respondents, Terri Jean Bedford, Amy Lebovitch and Valerie Scott;

Robert W. Staley, Derek J. Bell, Ranjan K. Agarwal and Stephen N. Libin, for the interveners, Christian Legal Fellowship, Catholic Civil Rights League, and Real Women of Canada;

Linda R. Rothstein, Michael Fenrick and Andrew Lokan, for the intervener, Canadian Civil Liberties Association;

Fay Faraday and Janine Benedet, for the interveners, Canadian Association of Sexual Assault Centres, Native Women's Association of Canada, Canadian Association of Elizabeth Fry Societies, Action Ontarienne Contre la Violence Faite aux Femmes, La Concertation des Luttes Contre L'Exploitation Sexuelle, Le Regroupement Québécois des Centres d'Aide et de Lutte Contre les Agressions à Caractère Sexuel, and Vancouver Rape Relief Society (the "Women's Coalition for the Abolition of Prostitution");

Joseph Arvay and Katrina Pacey, for the interveners, Providing Alternatives Counselling and Education Society, Downtown Eastside Sex Workers United Against Violence Society, and Pivot Legal Society;

Renée Lang, for the intervener, Canadian HIV/AIDS Legal Network;

Jonathan Shime, for the intervener, British Columbia Centre for Excellence in HIV/AIDS;

Brent B. Olthuis and Megan Vis-Dunbar, for the intervener, British Columbia Civil Liberties Association;

Cynthia Petersen, Charlene Wiseman, Leslie Robertson and Karin Galldin, for the interveners, POWER and Maggie's.

This appeal was heard on June 13-17, 2011, by Doherty, Rosenberg, Feldman, MacPherson and Cronk, JJ.A., of the Ontario Court of Appeal. The court delivered its decision on March 26, 2012, which included the following opinions:

Doherty, Rosenberg and Feldman, JJ.A. - see paragraphs 1 to 330;

MacPherson, J.A. (Cronk, J.A., concurring), dissenting in part - see paragraphs 331 to 374.