(with whom LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ. concurred. delivered the judgment of the Court)
It is not a crime in Canada to sell sex for money. However, it is a crime to keep a bawdy-house, to live on the avails of prostitution or to communicate in public with respect to a proposed act of prostitution. It is argued that these restrictions on prostitution put the safety and lives of prostitutes at risk, and are therefore unconstitutional.
These appeals and the cross-appeal are not about whether prostitution should be legal or not. They are about whether the laws Parliament has enacted on how prostitution may be carried out pass constitutional muster. I conclude that they do not. I would therefore make a suspended declaration of invalidity, returning the question of how to deal with prostitution to Parliament.
I. The Case
Three applicants, all current or former prostitutes, brought an application seeking declarations that three provisions of the Criminal Code, R.S.C. 1985, c. C-46, are unconstitutional.
The three impugned provisions criminalize various activities related to prostitution. They are primarily concerned with preventing public nuisance, as well as the exploitation of prostitutes. Section 210 makes it an offence to be an inmate of a bawdy-house, to be found in a bawdy-house without lawful excuse, or to be an owner, landlord, lessor, tenant, or occupier of a place who knowingly permits it to be used as a bawdy-house. Section 212(1)(j) makes it an offence to live on the avails of another’s prostitution. Section 213(1)(c) makes it an offence to either stop or attempt to stop, or communicate or attempt to communicate with, someone in a public place for the purpose of engaging in prostitution or hiring a prostitute.
However, prostitution itself is not illegal. It is not against the law to exchange sex for money. Under the existing regime, Parliament has confined lawful prostitution to two categories: street prostitution and “out-calls” – where the prostitute goes out and meets the client at a designated location, such as the client’s home. This reflects a policy choice on Parliament’s part. Parliament is not precluded from imposing limits on where and how prostitution may be conducted, as long as it does so in a way that does not infringe the constitutional rights of prostitutes.
The applicants allege that all three provisions infringe s. 7 of the Canadian Charter of Rights and Freedoms by preventing prostitutes from implementing certain safety measures – such as hiring security guards or “screening” potential clients – that could protect them from violent clients. The applicants also allege that s. 213(1)(c) infringes s. 2(b) of the Charter, and that none of the provisions are saved under s. 1.
The backgrounds of the three applicants as revealed in their evidence were reviewed in the application judge’s decision (2010 ONSC 4264, 102 O.R. (3d) 321).
Terri Jean Bedford was born in Collingwood, Ontario, in 1959, and as of 2010 had 14 years of experience working as a prostitute in various Canadian cities. She worked as a street prostitute, a massage parlour attendant, an escort, an owner and manager of an escort agency, and a dominatrix. Ms. Bedford had a difficult childhood and adolescence during which she was subjected to various types of abuse. She also encountered brutal violence throughout her career – largely, she stated, while working on the street. In her experience, indoor prostitution is safer than prostitution on the street, although she conceded that safety of an indoor location can vary. Ms. Bedford has been convicted of both keeping and being an inmate of a common bawdy-house, for which she has paid a number of fines and served 15 months in jail.
When she ran an escort service in the 1980s, Ms. Bedford instituted various safety measures, including: ensuring someone else was on location during in-calls, except during appointments with well-known clients; ensuring that women were taken to and from out-call appointments by a boyfriend, husband, or professional driver; if an appointment was at a hotel, calling the hotel to verify the client’s name and hotel room number; if an appointment was at a client’s home, calling the client’s phone to ensure it was the correct number; turning down appointments from clients who sounded intoxicated; and verifying that credit card numbers matched the names of clients. She claimed she was not aware of any incidents of violence by the clientele towards her employees during that time. At some point in the 1990s, Ms. Bedford ran the Bondage Bungalow, where she offered dominatrix services. She also instituted various safety measures at this establishment, and claimed she only experienced one incident of “real violence” (application decision, at para.30).
Ms. Bedford is not currently working in prostitution but asserted that she would like to return to working as a dominatrix in a secure, indoor location; however, she is concerned that in doing so, she would be exposed to criminal liability. Furthermore, she does not want the people assisting her to be subject to criminal liability due to the living on the avails of prostitution provision.
Amy Lebovitch was born in Montréal in 1979. She comes from a stable background and attended both CEGEP and university. She currently works as a prostitute and has done so since approximately 1997 in various cities in Canada. She worked first as a street prostitute, then as an escort, and later in a fetish house. Ms. Lebovitch considers herself lucky that she was never subjected to violence during her years working on the streets. She moved off the streets to work at the escort agency after seeing other women’s injuries and hearing stories of the violence suffered by other street prostitutes. Ms. Lebovitch maintains that she felt safer in an indoor location; she attributed remaining safety issues mainly to poor management. Ms. Lebovitch experienced one notable instance of violence, which she did not report to the police out of fear of police scrutiny and the possibility of criminal charges.
Presently, Ms. Lebovitch primarily works independently out of her home, where she takes various safety precautions, including: making sure client telephone calls are from unblocked numbers; not taking calls from clients who sound drunk, high, or in another manner undesirable; asking for expectations upfront; taking clients’ full names and verifying them using directory assistance; getting referrals from regular clients; and calling a third party – her “safe call” – when the client arrives and before he leaves. Ms. Lebovitch fears being charged and convicted under the bawdy-house provisions and the consequent possibility of forfeiture of her home. She says that the fear of criminal charges has caused her to work on the street on occasion. She is also concerned that her partner will be charged with living on the avails of prostitution. She has never been charged with a criminal offence of any kind. Ms. Lebovitch volunteers as the spokesperson for Sex Professionals of Canada (“SPOC”), and she also records information from women calling to report “bad dates” – incidents that ended in violence or theft. Ms. Lebovitch stated that she enjoys her job and does not plan to leave it in the foreseeable future.
Valerie Scott was born in Moncton, New Brunswick, in 1958. She is currently the executive director of SPOC, and she no longer works as a prostitute. In the past, she worked indoors, from her home or in hotel rooms; she also worked as a prostitute on the street, in massage parlours, and she ran a small escort business. She has never been charged with a criminal offence of any kind. When Ms. Scott worked from home, she would screen new clients by meeting them in public locations. She never experienced significant harm working from home. Around 1984, as awareness about HIV/AIDS increased, Ms. Scott was compelled to work as a street prostitute, since indoor clients felt entitled not to wear condoms. On the street, she was subjected to threats of violence, as well as verbal and physical abuse. Ms. Scott described some precautions street prostitutes took prior to the enactment of the communicating law, including working in pairs or threes and having another prostitute visibly write down the client’s licence plate number, so he would know he was traceable if something was to go wrong.
Ms. Scott worked as an activist and, among other things, advocated against Bill C-49 (which included the current communicating provision). Ms. Scott stated that following the enactment of the communicating law, the Canadian Organization for the Rights of Prostitutes (“CORP”) began receiving calls from women working in prostitution about the increased enforcement of the laws and the prevalence of bad dates. In response, Ms. Scott was involved in setting up a drop-in and phone centre for prostitutes in Toronto; within the first year, Ms. Scott spoke to approximately 250 prostitutes whose main concerns were client violence and legal matters arising from arrest. In 2000, Ms. Scott formed SPOC to revitalize and continue the work previously done by CORP. As the executive director of this organization, she testified before a Parliamentary Subcommittee on Solicitation Laws in 2005. Over the years, Ms. Scott estimates that she has spoken with approximately 1,500 women working in prostitution. If this challenge is successful, Ms. Scott would like to operate an indoor prostitution business. While she recognizes that clients may be dangerous in both outdoor and indoor locations, she would institute safety precautions such as checking identification of clients, making sure other people are close by during appointments to intervene if needed, and hiring a bodyguard.
The three applicants applied pursuant to rule 14.05(3)(g.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for an order that the provisions restricting prostitution are unconstitutional. The evidentiary record consists of over 25,000 pages of evidence in 88 volumes. The affidavit evidence was accompanied by a large volume of studies, reports, newspaper articles, legislation, Hansard and many other documents. Some of the affiants were cross-examined.
The relevant legislation is as follows:
Canadian Charter of Rights and Freedoms
III. Prior Decisions
A. Ontario Superior Court of Justice (Himel J.)
The application judge, Himel J., concluded that the applicants had private interest standing to challenge the provisions. She held that the decision of this Court upholding the bawdy-house and communicating law in the Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 105 (SCC),  1 S.C.R. 1123 (“Prostitution Reference”), did not prevent her from reviewing their constitutionality because:
s. 7 jurisprudence has evolved considerably since 1990; in particular, the doctrines of arbitrariness, overbreadth and gross disproportionality had not yet been fully articulated and therefore were not argued or considered in the Prostitution Reference;
the evidentiary record before her was much richer, based on research not available in 1990;
the social, political and economic assumptions underlying the Prostitution Reference may no longer be valid; and
the type of expression at issue differed from that considered in the Prostitution Reference.
In considering the legislative scheme as it exists and the evidence before her, Himel J. found that each of the impugned laws deprived the applicants and others like them of their liberty (by reason of potential imprisonment) and their security of the person (because they increased the risk of injury). The increased risk of violence created by the laws constituted a “sufficient” cause, engaging the security of the person protected by s. 7. She stated [paras. 361-62]:
With respect to s. 210, the evidence suggests that working in-call is the safest way to sell sex; yet, prostitutes who attempt to increase their level of safety by working in-call face criminal sanction. With respect to s. 212(1)(j), prostitution, including legal out-call work, may be made less dangerous if a prostitute is allowed to hire an assistant or a bodyguard; yet, such business relationships are illegal due to the living on the avails of prostitution provision. Finally, s. 213(1)(c) prohibits street prostitutes, who are largely the most vulnerable prostitutes and face an alarming amount of violence, from screening clients at an early, and crucial, stage of a potential transaction, thereby putting them at an increased risk of violence.
In conclusion, these three provisions prevent prostitutes from taking precautions, some extremely rudimentary, that can decrease the risk of violence towards them. Prostitutes are faced with deciding between their liberty and their security of the person. Thus, while it is ultimately the client who inflicts violence upon a prostitute, in my view the law plays a sufficient contributory role in preventing a prostitute from taking steps that could reduce the risk of such violence.
Himel J. concluded that the deprivation of security thus established was not in accordance with the principles of fundamental justice, notably the requirements that laws not infringe security of the person in a way that is arbitrary, overbroad or grossly disproportionate.
Himel J. found the bawdy-house provision (s. 210) overbroad because it extended to virtually any place and allowed for convictions that were unrelated to the objective of preventing community nuisance. And the harms it inflicted were grossly disproportionate to the few nuisance complaints received. The effect of preventing prostitutes from working in-call at a regular indoor location was to force them to choose between their liberty interest (obeying the law) and their personal security.
Himel J. found the prohibition against living on the avails of prostitution (s. 212(1)(j)) arbitrary, overbroad and grossly disproportionate. While targeting exploitation by pimps, the provision encompasses virtually anyone who provides services to prostitutes. Prostitutes are forced to work alone, increasing the risk of harm, or work with people prepared to break the law. It increases reliance on pimps, and is therefore arbitrary. It catches non-exploitative relationships, and is therefore overbroad. And it creates the risk of severe violence from pimps and exploiters, making it grossly disproportionate.
Finally, Himel J. found the prohibition on communicating for the purposes of prostitution (s. 213(1)(c)) violates the principle against gross disproportionality. By preventing prostitutes from screening clients – an essential tool for enhancing their safety – it endangers them out of all proportion to the small social benefit it provides. It also infringes the freedom of expression guarantee under s. 2(b) of the Charter.
Himel J. found that the infringement of the s. 7 and s. 2(b) rights imposed by the laws could not be justified under s. 1 of the Charter.
In the result, Himel J. declared the communicating and living on the avails offences unconstitutional, without suspension, and rectified the bawdy-house prohibition by striking the word “prostitution” from the definition of “common bawdy-house” in s. 197(1) as it applies to s. 210.
B. Ontario Court of Appeal (Doherty, Rosenberg, Feldman, MacPherson and Cronk JJ.A.)
The majority of the Court of Appeal, per Doherty, Rosenberg and Feldman J.J.A. (with whom the minority per MacPherson J.A. concurred on these issues), agreed with the application judge that the bawdy-house and living on the avails provisions were unconstitutional on the basis that they engaged the security of the person in a way that was not in accordance with the principles of fundamental justice (2012 ONCA 186, 109 O.R. (3d) 1). In particular, the majority found as follows.
The prohibition on bawdy-houses was overbroad and had an impact on security that was grossly disproportionate to any benefit conferred. The court agreed that the word “prostitution” should be struck from the definition of “common bawdy-house”. However, it suspended the declaration of invalidity for 12 months.
The prohibition on living on the avails was not arbitrary, as the application judge found, but was overbroad and grossly disproportionate in its effects. However, instead of striking the provision out, the court narrowed the provision by reading in “in circumstances of exploitation” (para. 267).
The majority of the Court of Appeal found the prohibition on communicating in public for the purpose of prostitution was constitutional. While it engaged security of the person, it did so in accordance with the principles of fundamental justice. The provision aims to combat nuisance-related problems caused by street solicitation. It is not arbitrary; it has been effective in protecting residential neighbourhoods from the targeted harms. Nor is it overbroad or grossly disproportionate. In finding the provision grossly disproportionate, the application judge erred by understating the objective in a way that did not reflect the evidence, and by over-emphasizing the impact of the provision on prostitutes’ security of the person. The evidence did not establish that inability to communicate with customers contributed to the harm experienced by prostitutes to a degree that made the impact grossly disproportionate to the benefits. The majority also found that it was bound by the Prostitution Reference: thus, this provision violated s. 2(b) of the Charter, but was justified under s. 1 of the Charter.
The minority, per MacPherson J.A. (dissenting only on this one issue), would have struck down the communicating prohibition under ss. 7 and 1 of the Charter as grossly disproportionate to the legislative objective of combatting social nuisance. The minority found that:
its effects were equally or more serious than the other provision;
the application judge correctly stated the objective of the provision;
the record supported the conclusion that screening is an essential tool for safety;
beyond screening, the provision adversely impacts safety by forcing prostitutes to work in isolated and dangerous areas;
the provision impacts the most vulnerable class of prostitutes, street workers, raising s. 15 equality concerns;
the recent decision of this Court in Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44,  3 S.C.R. 134,supports the conclusion that the provision violates s. 7; and
the compounding effect of legislation that drives prostitutes onto the streets and then denies them the ability to evaluate prospective clients supports unconstitutionality.
This conclusion made it unnecessary for the minority to consider s. 2(b) of the Charter.
In the course of arriving at its conclusions, the majority of the Court of Appeal made a number of ancillary observations of importance.
In considering the doctrine of stare decisis and whether the application judge was bound by the Prostitution Reference, the court adopted a narrow view of when a trial judge can reconsider previous decisions of the Supreme Court of Canada on the basis of changes in the social, economic or political landscapes: the trial judge cannot change the law, but is limited to making findings of fact and credibility to create the necessary evidentiary record which the Supreme Court of Canada can then consider. Reasons that justify a court departing from its own prior decisions cannot justify a lower court revisiting binding authority. This applies to determining what constitutes a reasonable limit on a right under s. 1 of the Charter (paras. 75-76).
On the standard of causation required to engage s. 7, the Court of Appeal held that the traditional causation analysis is inappropriate where it is legislation, and not the actions of a government official, that is said to have interfered with a s. 7 interest. Rather, the judge should conduct a practical, pragmatic analysis to determine what the legislation prohibits or requires, its impact on the persons affected, and whether this amounts to an interference with protected rights (paras. 107-9).
On the issue of deference to findings of fact of the application judge, the Court of Appeal held that findings on social and legislative facts are not entitled to appellate deference, while findings on the credibility of affiants and the objectivity of expert witnesses attract deference (paras. 128-31).
Regarding the purpose of the laws, the court rejected the Attorney General of Ontario’s submission that there was an overarching legislative objective to eradicate, or at least discourage, prostitution. Rather, the purpose of each of the laws must be independently ascertained with reference to its unique historical context (paras. 165-70).
On the principles of fundamental justice, the Court of Appeal held that arbitrariness, overbreadth, and gross disproportionality each use a different filter to examine the connection between the law and the legislative objective. Arbitrariness is the absence of any link between the objective of the law and its negative impact on security of the person. Overbreadth addresses the situation where the law imposes limits on security of the person that go beyond what is required to achieve its objective. Gross disproportionality describes the case where the effects of the impugned law are so extreme that they cannot be justified by its object (paras. 143-49).
The appellant Attorneys General appeal from the Court of Appeal’s declaration that ss. 210 and 212(1)(j) of the Code are unconstitutional. The respondents cross-appeal on the issue of the constitutionality of s. 213(1)(c), and in respect of the Court of Appeal’s remedy to resolve the unconstitutionality of s. 210.
Before turning to the Charter arguments before us, I will first discuss two preliminary issues:
whether the 1990 decision in the Prostitution Reference, upholding the bawdy-house and communication prohibitions, is binding on trial judges and this Court; and
the degree of deference to be accorded to the application judge’s findings on social and legislative facts.
A. Preliminary Issues
(1) Revisiting the Prostitution Reference
Certainty in the law requires that courts follow and apply authoritative precedents. Indeed, this is the foundational principle upon which the common law relies.
The issue of when, if ever, such precedents may be departed from takes two forms. The first “vertical” question is when, if ever, a lower court may depart from a precedent established by a higher court. The second “horizontal” question is when a court such as the Supreme Court of Canada may depart from its own precedents.
In this case, the precedent in question is the Supreme Court of Canada’s 1990 advisory opinion in the Prostitution Reference, which upheld the constitutionality of the prohibitions on bawdy-houses and communicating – two of the three provisions challenged in this case. The questions in that case were whether the laws infringed s. 7 or s. 2(b) of the Charter, and, if so, whether the limit was justified under s. 1. The Court concluded that neither of the impugned laws were inconsistent with s. 7, and that although the communicating law infringed s. 2(b), it was a justifiable limit under s. 1 of the Charter. While reference opinions may not be legally binding, in practice they have been followed (G. Rubin, “The Nature, Use and Effect of Reference Cases in Canadian Constitutional Law” (1960), 6 McGill L.J. 168, at p. 175).
The application judge in this case held that she could revisit those conclusions because: the legal issues under s. 7 were different, in light of the evolution of the law in that area; the evidentiary record was richer and provided research not available in 1990; the social, political and economic assumptions underlying the Prostitution Reference no longer applied; and the type of expression at issue in that case (commercial expression) differed from the expression at issue in this case (expression promoting safety). The Court of Appeal disagreed with respect to the s. 2(b) issue, holding that a trial judge asked to depart from a precedent on the basis of new evidence, or new social, political or economic assumptions, may make findings of fact for consideration by the higher courts, but cannot apply them to arrive at a different conclusion from the previous precedent (at para. 76).
In my view, a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue. Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.
The intervener, the David Asper Centre for Constitutional Rights, argues that the common law principle of stare decisis is subordinate to the Constitution and cannot require a court to uphold a law which is unconstitutional. It submits that lower courts should not be limited to acting as “mere scribe[s]”, creating a record and findings without conducting a legal analysis (I.F., at para. 25).
I agree. As the David Asper Centre also noted, however, a lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one to reach. In my view, as discussed above, this threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence. This balances the need for finality and stability with the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role.
It follows that the application judge in this case was entitled to rule on whether the laws in question violated the security of the person interests under s. 7 of the Charter. In the Prostitution Reference, the majority decision was based on the s. 7 physical liberty interest alone. Only Lamer J., writing for himself, touched on security of the person – and then, only in the context of economic interests. Contrary to the submission of the Attorney General of Canada, whether the s. 7 interest at issue is economic liberty or security of the person is not “a distinction without a difference” (A.F., at para. 94). The rights protected by s. 7 are “independent interests, each of which must be given independent significance by the Court” (R. v Morgentaler, 1988 90 (SCC),  1 S.C.R. 30, at p. 52). Furthermore, the principles of fundamental justice considered in the Prostitution Reference dealt with vagueness and the permissibility of indirect criminalization. The principles raised in this case – arbitrariness, overbreadth, and gross disproportionality – have, to a large extent, developed only in the last 20 years.
These considerations do not apply to the question of whether the communication provision is a justified limit on freedom of expression. That issue was decided in the Prostitution Reference. Re-characterizing the type of expression alleged to be infringed did not convert this argument into a new legal issue, nor did the more current evidentiary record or the shift in attitudes and perspectives amount to a change in the circumstances or evidence that fundamentally shifted the parameters of the debate.
This brings me to the question of whether this Court should depart from its previous decision on the s. 2(b) aspect of this case. At heart, this is a balancing exercise, in which the Court must weigh correctness against certainty (Canada v Craig, 2012 SCC 43,  2 S.C.R. 489, at para. 27). In this case, however, it is not necessary to determine whether this Court can depart from its s. 2(b) conclusion in the Prostitution Reference, since it is possible to resolve the case entirely on s. 7 grounds.
(2) Deference to the Application Judge’s Findings on Social and Legislative Facts
The Court of Appeal held that the application judge’s findings on social and legislative facts – that is, facts about society at large, established by complex social science evidence – were not entitled to deference. With respect, I cannot agree. As this Court stated in Housen v Nikolaisen, 2002 SCC 33,  2 S.C.R. 235, appellate courts should not interfere with a trial judge’s findings of fact, absent a palpable and overriding error.
When social and legislative evidence is put before a judge of first instance, the judge’s duty is to evaluate and weigh that evidence in order to arrive at the conclusions of fact necessary to decide the case. The trial judge is charged with the responsibility of establishing the record on which subsequent appeals are founded. Absent reviewable error in the trial judge’s appreciation of the evidence, a court of appeal should not interfere with the trial judge’s conclusions on social and legislative facts. This division of labour is basic to our court system. The first instance judge determines the facts; appeal courts review the decision for correctness in law or palpable and overriding error in fact. This applies to social and legislative facts as much as to findings of fact as to what happened in a particular case.
There are two important practical reasons not to depart from the usual standard of review simply because social or legislative facts are at issue.
First, to do so would require the appeal court to duplicate the sometimes time-consuming and tedious work of the first instance judge in reviewing all the material and reconciling differences between the experts, studies and research results. A new set of judges would need to take the hours if not weeks required to intimately appreciate and analyze the evidence. And counsel for the parties would be required to take the appellate judges through all the evidence once again so they could draw their own conclusions. All this would increase the costs and delay in the litigation process. In a review for error – which is what an appeal is – it makes more sense to have counsel point out alleged errors in the trial judge’s conclusions on the evidence and confine the court of appeal to determining whether those errors vitiate the trial judge’s conclusions.
Second, social and legislative facts may be intertwined with adjudicative facts – that is, the facts of the case at hand – and with issues of credibility of experts. To posit a different standard of review for adjudicative facts and the credibility of affiants and expert witnesses on the one hand, and social and legislative facts on the other (as proposed by the Court of Appeal), is to ask the impossible of courts of appeal. Untangling the different sources of those conclusions and applying different standards of review to them would immensely complicate the appellate task.
As the Attorney General of Canada points out, this Court’s decision in RJR-MacDonald Inc. v Canada (Attorney General), 1995 64 (SCC),  3 S.C.R. 199, suggested that legislative fact findings are owed less deference. However, the use of social science evidence in Charter litigation has evolved significantly since RJR-MacDonald was decided. In the intervening years, this Court has expressed a preference for social science evidence to be presented through an expert witness (R. v Malmo-Levine; R. v Caine, 2003 SCC 74,  3 S.C.R. 571, at paras. 26-28; R. v Spence, 2005 SCC 71,  3 S.C.R. 458, at para. 68). The assessment of expert evidence relies heavily on the trial judge (R. v Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at paras. 62-96). This is particularly so in the wake of the Ontario report by Justice Goudge, which emphasized the role of the trial judge in preventing miscarriages of justice flowing from flawed expert evidence (Inquiry into Pediatric Forensic Pathology in Ontario: Report, vol. 3, Policy and Recommendations (2008)). The distinction between adjudicative and legislative facts can no longer justify gradations of deference.
This case illustrates the problem. The application judge arrived at her conclusions on the impact of the impugned laws on s. 7 security interests on the basis of the personal evidence of the applicants, the evidence of affiants and experts, and documentary evidence in the form of studies, reports of expert panels and Parliamentary records. The Court of Appeal conceded that it must accord deference to her findings of adjudicative facts and the credibility of affiants and experts, but said it owes no deference to findings on social and legislative facts. The task of applying different standards of review when the evidence is intertwined would be daunting.
It is suggested that no deference is required on social and legislative facts because appellate courts are in as good a position to evaluate such evidence as trial judges. If this were so, adjudicative facts presented only in affidavit form would similarly be owed less deference. Yet this Court has been clear that, absent express statutory instruction, there is no middling standard of review for findings of fact (H.L. v Canada (Attorney General), 2005 SCC 25,  1 S.C.R. 401). Furthermore, this view does not meet the concerns of duplication of effort and the intertwining of such evidence with other kinds of evidence. Nor does it address the point that the appellate task is not to review evidence globally, but rather to review the conclusions the first instance judge has drawn from the evidence.
For these reasons, I am of the view that a no-deference standard of appellate review for social and legislative facts should be rejected. The standard of review for findings of fact – whether adjudicative, social, or legislative – remains palpable and overriding error.
B. Section 7 Analysis
In the discussion that follows, I first consider whether the applicants have established that the impugned laws impose limits on security of the person, thus engaging s. 7. I then examine the appellant Attorneys Generals’ arguments that the laws do not cause the alleged harms. I go on to consider whether any limits on security of the person are in accordance with the principles of fundamental justice.
(1) Is Security of the Person Engaged?
Section 7 provides that the state cannot deny a person’s right to life, liberty or security of the person, except in accordance with the principles of fundamental justice. At this stage, the question is whether the impugned laws negatively impact or limit the applicants’ security of the person, thus bringing them within the ambit of, or engaging, s. 7 of the Charter.
Here, the applicants argue that the prohibitions on bawdy-houses, living on the avails of prostitution, and communicating in public for the purposes of prostitution, heighten the risks they face in prostitution – itself a legal activity. The 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.
(a) 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 2153 (ON CA), (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 out-calls (application decision, at para. 385). In-calls, 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 client’s home, are allowed. Working on the street is also permitted, though the practice of street prostitution is significantly limited by the prohibition on communicating in public (s. 213 (1) (c)).
The application judge found, on a balance of probabilities, that the safest form of prostitution is working independently from a fixed location (para. 300). She concluded that indoor work is far less dangerous than street prostitution – a finding that the evidence amply supports. She also concluded that out-call work is not as safe as in-call work, particularly under the current regime where prostitutes are precluded by virtue of the living on the avails provision from hiring a driver or security guard. Since the bawdy-house provision makes the safety-enhancing method of in-call prostitution illegal, the application judge concluded that the bawdy-house prohibition materially increased the risk prostitutes face under the present regime. I agree.
First, the prohibition prevents prostitutes from working in a fixed indoor location, which would be safer than working on the streets or meeting clients at different locations, especially given the current prohibition on hiring drivers or security guards. This, in turn, prevents prostitutes from having a regular clientele and from setting up indoor safeguards like receptionists, assistants, bodyguards and audio room monitoring, which would reduce risks (application decision, at para. 421). Second, it interferes with provision of health checks and preventive health measures. Finally – a point developed in argument before us – the bawdy-house prohibition prevents resort to safe houses, to which prostitutes working on the street can take 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.
(b) 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. While targeting parasitic relationships (R. v Downey, 1992 109 (SCC),  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 7241 (ON CA), (1991), 2 O.R. (3d) 514 (C.A.); R. v Barrow 2001 8550 (ON CA), (2001), 54 O.R. (3d) 417 (C.A.)). In effect, it prevents a prostitute from hiring bodyguards, drivers and receptionists. The application judge found that by denying prostitutes access to these security-enhancing safeguards, the law prevented them from taking steps to reduce the risks they face and negatively impacted their security of the person (para. 361). As such, she found that the law engages s. 7 of the Charter.
The evidence amply supports the judge’s conclusion. Hiring drivers, receptionists, and bodyguards, could increase prostitutes’ safety (application decision, at para. 421), but the law prevents them from doing so. Accordingly, I conclude that s. 212(1)(j) negatively impacts security of the person and engages s. 7.
(c) Section 213(1)(c): Communicating in a Public Place
Section 213(1)(c) prohibits communicating or attempting to communicate for the purpose of engaging in prostitution or obtaining the sexual services of a prostitute, in a public place or a place open to public view. The provision extends to conduct short of verbal communication by prohibiting stopping or attempting to stop any person for those purposes (R. v Head 1987 2823 (BC CA), (1987), 59 C.R. (3d) 80 (B.C.C.A.)).
The application judge found that face-to-face communication is an “essential tool” in enhancing street prostitutes’ safety (para. 432). Such communication, which the law prohibits, allows prostitutes to screen prospective clients for intoxication or propensity to violence, which can reduce the risks they face (paras. 301 and 421). This conclusion, based on the evidence before her, sufficed to engage security of the person under s. 7.
The application judge also found that the communicating law has had the effect of displacing prostitutes from familiar areas, where they may be supported by friends and regular customers, to more isolated areas, thereby making them more vulnerable (paras. 331 and 502).
On the evidence accepted by the application judge, the law prohibits communication that would allow street prostitutes to increase their safety. By prohibiting communicating in public for the purpose of prostitution, the law prevents prostitutes from screening clients and setting terms for the use of condoms or safe houses. In these ways, it significantly increases the risks they face.
I conclude that the evidence supports the application judge’s conclusion that s. 213(1)(c) impacts security of the person and engages s. 7.
(2) A Closer Look at Causation
For the reasons discussed above, the application judge concluded – and I agree – that the impugned laws negatively impact and thus engage security of the person rights of prostitutes. However, the appellant Attorneys General contend that s. 7 is not engaged because there is an insufficient causal connection between the laws and the risks faced by prostitutes. First, they argue that the courts below erroneously measured causation by an attenuated standard. Second, they argue that it is the choice of the applicants to engage in prostitution, rather than the law, that is the causal source of the harms they face. These arguments cannot succeed.
(a) The Nature of the Required Causal Connection
Three possible standards for causation are raised for our consideration:
“sufficient causal connection”, adopted by the application judge (paras. 287-88);
a general “impact” approach, adopted by the Court of Appeal (paras. 108-9); and
“active, foreseeable and direct” causal connection, urged by the appellant Attorneys General (A.G. of Canada factum, at para. 65; A.G. of Ontario factum, at paras. 14-15).
I conclude that the “sufficient causal connection” standard should prevail. This is a flexible standard, which allows the circumstances of each particular case to be taken into account. Adopted in Blencoe v British Columbia (Human Rights Commission),2000 SCC 44 (), 2000 SCC 44,  2 S.C.R. 307, and applied in a number of subsequent cases (see e.g. United States v Burns, 2001 SCC 7 (), 2001 SCC 7,  1 S.C.R. 283; Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1,  1 S.C.R. 3), it posits the need for “a sufficient causal connection between the state-caused [effect] and the prejudice suffered by the [claimant]” for s. 7 to be engaged (Blencoe, at para. 60 (emphasis added)).
A sufficient causal connection standard does not require that the impugned government action or law be the only or the dominant cause of the prejudice suffered by the claimant, and is satisfied by a reasonable inference, drawn on a balance of probabilities (Canada (Prime Minister) v Khadr, 2010 SCC 3,  1 S.C.R. 44, at para. 21). A sufficient causal connection is sensitive to the context of the particular case and insists on a real, as opposed to a speculative, link. Understood in this way, a sufficient causal connection standard is consistent with the substance of the standard that the Court of Appeal applied in this case. While I do not agree with the Court of Appeal that causation is not the appropriate lens for examining whether legislation – as opposed to the conduct of state actors – engages s. 7 security interests, its “practical and pragmatic” inquiry (para. 108) tracks the process followed in cases such as Blencoe and Khadr.
The Attorney General of Canada argues for a higher standard. The prejudice to the claimant’s security interest, he argues, must be active, foreseeable, and a “necessary link” (factum, at paras. 62 and 65). He relies on this Court’s statement in Rodriguez v British Columbia (Attorney General),1993 75 (SCC),  3 S.C.R. 519, (cited by way of contrast in Blencoe, at para. 69) that “[i]n the absence of government involvement, Mrs. Rodriguez would not have suffered a deprivation of her s. 7 rights.” He also relies on the Court’s statement in Suresh, at para. 54, that “[a]t least where Canada’s participation is a necessary precondition for the deprivation and where the deprivation is an entirely foreseeable consequence of Canada’s participation, the government does not avoid the guarantee of fundamental justice”. These statements establish that a causal connection is made out when the state action is a foreseeable and necessary cause of the prejudice. They do not, however, establish that this is the only way a causal connection engaging s. 7 of the Charter can be demonstrated.
Finally, from a practical perspective, a sufficient causal connection represents a fair and workable threshold for engaging s. 7 of the Charter. This is the port of entry for s. 7 claims. The claimant bears the burden of establishing this connection. Even if established, it does not end the inquiry, since the claimant must go on to show that the deprivation of her security of the person is not in accordance with the principles of fundamental justice. Although mere speculation will not suffice to establish causation, to set the bar too high risks barring meritorious claims. What is required is a sufficient connection, having regard to the context of the case.
(b) Is the Causal Connection Negated by Choice or the Role of Third Parties?
The Attorneys General of Canada and Ontario argue that prostitutes choose to engage in an inherently risky activity. They can avoid both the risk inherent in prostitution and any increased risk that the laws impose simply by choosing not to engage in this activity. They say that choice – and not the law – is the real cause of their injury.
The Attorneys General contend that Parliament is entitled to regulate prostitution as it sees fit. Anyone who chooses to sell sex for money must accept these conditions. If the conditions imposed by the law prejudice their security, it is their choice to engage in the activity, not the law, that is the cause.
What the applicants seek, the Attorneys General assert, is a constitutional right to engage in risky commercial activities. Thus the Attorney General of Ontario describes the s. 7 claim in this case as a “veiled assertion of a positive right to vocational safety” (factum, at para. 25).
The Attorneys General rely on this Court’s decision in Malmo-Levine, which upheld the constitutionality of the prohibition of possession of marijuana on the basis that the recreational use of marijuana was a “lifestyle choice” and that lifestyle choices were not constitutionally protected (para. 185).
The Attorneys General buttress this argument by asserting that if this Court accepts that these laws can be viewed as causing prejudice to the applicants’ security, then many other laws that leave open the choice to engage in risky activities by only partially or indirectly regulating those activities will be rendered unconstitutional.
Finally, in a variant on the argument that the impugned laws are not the cause of the applicants’ alleged loss of security, the Attorneys General argue that the source of the harm is third parties – the johns who use and abuse prostitutes and the pimps who exploit them.
For the following reasons, I cannot accept the argument that it is not the law, but rather prostitutes’ choice and third parties, that cause the risks complained of in this case.
First, while some prostitutes may fit the description of persons who freely choose (or at one time chose) to engage in the risky economic activity of prostitution, many prostitutes have no meaningful choice but to do so. Ms. Bedford herself stated that she initially prostituted herself “to make enough money to at least feed myself” (cross-examination of Ms. Bedford, J.A.R., vol. 2, at p. 92). As the application judge found, street prostitutes, with some exceptions, are a particularly marginalized population (paras. 458 and 472). Whether because of financial desperation, drug addictions, mental illness, or compulsion from pimps, they often have little choice but to sell their bodies for money. Realistically, while they may retain some minimal power of choice – what the Attorney General of Canada called “constrained choice” (transcript, at p. 22) – these are not people who can be said to be truly “choosing” a risky line of business (see PHS, at paras. 97-101).
Second, even accepting that there are those who freely choose to engage in prostitution, it must be remembered that prostitution – the exchange of sex for money – is not illegal. The causal question is whether the impugned laws make this lawful activity more dangerous. An analogy could be drawn to a law preventing a cyclist from wearing a helmet. That the cyclist chooses to ride her bike does not diminish the causal role of the law in making that activity riskier. The challenged laws relating to prostitution are no different.
Nor is it accurate to say that the claim in this case is a veiled assertion of a positive right to vocational safety. The applicants are not asking the government to put into place measures making prostitution safe. Rather, they are asking this Court to strike down legislative provisions that aggravate the risk of disease, violence and death.
It makes no difference that the conduct of pimps and johns is the immediate source of the harms suffered by prostitutes. The impugned laws deprive people engaged in a risky, but legal, activity of the means to protect themselves against those risks. The violence of a john does not diminish the role of the state in making a prostitute more vulnerable to that violence.
The government’s call for deference in addressing the problems associated with prostitution has no role at this stage of the analysis. Calls for deference cannot insulate legislation that creates serious harmful effects from the charge that they negatively impact security of the person under s. 7 of the Charter. The question of deference arises under the principles of fundamental justice, not at the early stage of considering whether a person’s life, liberty, or security of the person is infringed.
Finally, recognizing that laws with serious harmful effects may engage security of the person does not mean that a host of other criminal laws will be invalidated. Trivial impingements on security of the person do not engage s. 7 (New Brunswick (Minister of Health and Community Services) v G. (J.), 1999 653 (SCC),  3 S.C.R. 46, at para. 59). As already discussed, the applicant must show that the impugned law is sufficiently connected to the prejudice suffered before s. 7 is engaged. And even if s. 7 is found to be engaged, the applicant must then show that the deprivation of security is not in accordance with the principles of fundamental justice.
For all these reasons, I reject the arguments of the Attorneys General that the cause of the harm is not the impugned laws, but rather the actions of third parties and the prostitutes’ choice to engage in prostitution. As I concluded above, the laws engage s. 7 of the Charter. That conclusion remains undisturbed.
(3) Principles of Fundamental Justice
(a) The Applicable Norms
I have concluded that the impugned laws deprive prostitutes of security of the person, engaging s. 7. The remaining step in the s. 7 analysis is to determine whether this deprivation is in accordance with the principles of fundamental justice. If so, s. 7 is not breached.
The principles of fundamental justice set out the minimum requirements that a law that negatively impacts on a person’s life, liberty, or security of the person must meet. As Lamer J. put it, “[t]he term ‘principles of fundamental justice’ is not a right, but a qualifier of the right not to be deprived of life, liberty and security of the person; its function is to set the parameters of that right” (Re B.C. Motor Vehicle Act, 1985 81 (SCC),  2 S.C.R. 486 (“Motor Vehicle Reference”), at p. 512).
The principles of fundamental justice have significantly evolved since the birth of the Charter. Initially, the principles of fundamental justice were thought to refer narrowly to principles of natural justice that define procedural fairness. In the Motor Vehicle Reference, this Court held otherwise [pp. 501-2]:
.... it would be wrong to interpret the term “fundamental justice” as being synonymous with natural justice .... To do so would strip the protected interests of much, if not most, of their content and leave the “right” to life, liberty and security of the person in a sorely emaciated state. Such a result would be inconsistent with the broad, affirmative language in which those rights are expressed and equally inconsistent with the approach adopted by this Court toward the interpretation of Charter rights in Law Society of Upper Canada v Skapinker, 1984 3 (SCC),  1 S.C.R. 357, per Estey J., and Hunter v Southam Inc., supra.
The Motor Vehicle Reference recognized that the principles of fundamental justice are about the basic values underpinning our constitutional order. The s. 7 analysis is concerned with capturing inherently bad laws: that is, laws that take away life, liberty, or security of the person in a way that runs afoul of our basic values. The principles of fundamental justice are an attempt to capture those values. Over the years, the jurisprudence has given shape to the content of these basic values. In this case, we are concerned with the basic values against arbitrariness, overbreadth, and gross disproportionality.
The concepts of arbitrariness, overbreadth, and gross disproportionality evolved organically as courts were faced with novel Charter claims.
Arbitrariness was used to describe the situation where there is no connection between the effect and the object of the law. In Morgentaler, the accused challenged provisions of the Criminal Code that required abortions to be approved by a therapeutic abortion committee of an accredited or approved hospital. The purpose of the law was to protect women’s health. The majority found that the requirement that all therapeutic abortions take place in accredited hospitals did not contribute to the objective of protecting women’s health and, in fact, caused delays that were detrimental to women’s health. Thus, the law violated basic values because the effect of the law actually contravened the objective of the law. Beetz J. called this “manifest unfairness” (Morgentaler, at p. 120), but later cases interpreted this as an “arbitrariness” analysis (see Chaoulli v Quebec (Attorney General),2005 SCC 35,  1 S.C.R. 791, at para. 133, per McLachlin C.J. and Major J.).
In Chaoulli, the applicant challenged a Quebec law that prohibited private health insurance for services that were available in the public sector. The purpose of the provision was to protect the public health care system and prevent the diversion of resources from the public system. The majority found, on the basis of international evidence, that private health insurance and a public health system could co-exist. Three of the four-judge majority found that the prohibition was “arbitrary” because there was no real connection on the facts between the effect and the objective of the law.
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 34 (SCC),  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,  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 fit for an eventual trial” (at para. 41). The Court found that insofar as the law applied to permanently unfit accused, who would never become fit to stand trial, the objective did “not apply” and therefore the law was overbroad (at paras. 42-43).
Laws are also in violation of our basic values when the effect of the law is grossly disproportionate to the state’s objective. In Malmo-Levine, the accused challenged the prohibition on the possession of marijuana on the basis that its effects were grossly disproportionate to its objective. Although the Court agreed that a law with grossly disproportionate effects would violate our basic norms, the Court found that this was not such a case: “.... the effects on accused persons of the present law, including the potential of imprisonment, fall within the broad latitude within which the Constitution permits legislative action” (para. 175).
In PHS, this Court found that the Minister’s refusal to exempt the safe injection site from drug possession laws was not in accordance with the principles of fundamental justice because the effect of denying health services and increasing the risk of death and disease of injection drug users was grossly disproportionate to the objectives of the drug possession laws, namely public health and safety.
The overarching lesson that emerges from the case law is that laws run afoul of our basic values when the means by which the state seeks to attain its objective is fundamentally flawed, in the sense of being arbitrary, overbroad, or having effects that are grossly disproportionate to the legislative goal. To deprive citizens of life, liberty, or security of the person by laws that violate these norms is not in accordance with the principles of fundamental justice.
As these principles have developed in the jurisprudence, they have not always been applied consistently. The Court of Appeal below pointed to the confusion that has been caused by the “commingling” of arbitrariness, overbreadth, and gross disproportionality (at paras. 143-51). This Court itself recently noted the conflation of the principles of overbreadth and gross disproportionality (R. v Khawaja, 2012 SCC 69,  3 S.C.R. 555, at paras. 38-40; see also R. v S.S.C., 2008 BCCA 262, 257 B.C.A.C. 57, at para. 72). In short, courts have explored different ways in which laws run afoul of our basic values, using the same words – arbitrariness, overbreadth, and gross disproportionality – in slightly different ways.
Although there is significant overlap between these three principles, and one law may properly be characterized by more than one of them, arbitrariness, overbreadth, and gross disproportionality remain three distinct principles that stem from what Hamish Stewart calls “failures of instrumental rationality” – the situation where the law is “inadequately connected to its objective or in some sense goes too far in seeking to attain it” (Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (2012), at p. 151). As Peter Hogg has explained:
The doctrines of overbreadth, disproportionality and arbitrariness are all at bottom intended to address what Hamish Stewart calls “failures of instrumental rationality”, by which he means that the Court accepts the legislative objective, but scrutinizes the policy instrument enacted as the means to achieve the objective. If the policy instrument is not a rational means to achieve the objective, then the law is dysfunctional in terms of its own objective.
(“The Brilliant Career of Section 7 of the Charter” (2012), 58 S.C.L.R. (2d) 195, at p. 209 (citation omitted))
The case law on arbitrariness, overbreadth and gross disproportionality is directed against two different evils. The first evil is the absence of a connection between the infringement of rights and what the law seeks to achieve – the situation where the law’s deprivation of an individual’s life, liberty, or security of the person is not connected to the purpose of the law. The first evil is addressed by the norms against arbitrariness and overbreadth, which target the absence of connection between the law’s purpose and the s. 7 deprivation.
The second evil lies in depriving a person of life, liberty or security of the person in a manner that is grossly disproportionate to the law’s objective. The law’s impact on the s. 7 interest is connected to the purpose, but the impact is so severe that it violates our fundamental norms.
Against this background, it may be useful to elaborate on arbitrariness, overbreadth and gross disproportionality.
Arbitrariness asks whether there is a direct connection between the purpose of the law and the impugned effect on the individual, in the sense that the effect on the individual bears some relation to the law’s purpose. There must be a rational connection between the object of the measure that causes the s. 7 deprivation, and the limits it imposes on life, liberty, or security of the person (Stewart, at p. 136). A law that imposes limits on these interests in a way that bears no connection to its objective arbitrarily impinges on those interests. Thus, in Chaoulli, the law was arbitrary because the prohibition of private health insurance was held to be unrelated to the objective of protecting the public health system.
Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part. At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some, but not all, of its impacts. For instance, the law at issue in Demers required unfit accused to attend repeated review board hearings. The law was only disconnected from its purpose insofar as it applied to permanently unfit accused; for temporarily unfit accused, the effects were related to the purpose.
Overbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others. Despite this recognition of the scope of the law as a whole, the focus remains on the individual and whether the effect on the individual is rationally connected to the law’s purpose. For example, where a law is drawn broadly and targets some conduct that bears no relation to its purpose in order to make enforcement more practical, there is still no connection between the purpose of the law and its effect on the specific individual. Enforcement practicality may be a justification for an overbroad law, to be analyzed under s. 1 of the Charter.
It has been suggested that overbreadth is not truly a distinct principle of fundamental justice. The case law has sometimes said that overbreadth straddles both arbitrariness and gross disproportionality. Thus, in Heywood, Cory J. stated: “The effect of overbreadth is that in some applications the law is arbitrary or disproportionate” (p. 793).
And in R. v Clay, 2003 SCC 75,  3 S.C.R. 735, the companion case to Malmo-Levine, Gonthier and Binnie JJ. explained [para. 38]:
Overbreadth in that respect addresses the potential infringement of fundamental justice where the adverse effect of a legislative measure on the individuals subject to its strictures is grossly disproportionate to the state interest the legislation seeks to protect. Overbreadth in this aspect is, as Cory J. pointed out [in Heywood], related to arbitrariness.
In part this debate is semantic. The law has not developed by strict labels, but on a case-by-case basis, as courts identified laws that were inherently bad because they violated our basic values.
Moving forward, however, it may be helpful to think of overbreadth as a distinct principle of fundamental justice related to arbitrariness, in that the question for both is whether there is no connection between the effects of a law and its objective. Overbreadth simply allows the court to recognize that the lack of connection arises in a law that goes too far by sweeping conduct into its ambit that bears no relation to its objective.
An ancillary question, which applies to both arbitrariness and overbreadth, concerns how significant the lack of correspondence between the objective of the infringing provision and its effects must be. Questions have arisen as to whether a law is arbitrary or overbroad when its effects are inconsistent with its objective, or whether, more broadly, a law is arbitrary or overbroad whenever its effects are unnecessary for its objective (see, e.g., Chaoulli, at paras. 233-34).
As noted above, the root question is whether the law is inherently bad because there is no connection, in whole or in part, between its effects and its purpose. This standard is not easily met. The evidence may, as in Morgentaler, show that the effect actually undermines the objective and is therefore “inconsistent” with the objective. Or the evidence may, as in Chaoulli, show that there is simply no connection on the facts between the effect and the objective, and the effect is therefore “unnecessary”. Regardless of how the judge describes this lack of connection, the ultimate question remains whether the evidence establishes that the law violates basic norms because there is no connection between its effect and its purpose. This is a matter to be determined on a case-by-case basis, in light of the evidence.
Gross disproportionality asks a different question from arbitrariness and overbreadth. It targets the second fundamental evil: the law’s effects on life, liberty or security of the person are so grossly disproportionate to its purposes that they cannot rationally be supported. The rule against gross disproportionality only applies in extreme cases where the seriousness of the deprivation is totally out of sync with the objective of the measure. This idea is captured by the hypothetical of a law with the purpose of keeping the streets clean that imposes a sentence of life imprisonment for spitting on the sidewalk. The connection between the draconian impact of the law and its object must be entirely outside the norms accepted in our free and democratic society.
Gross disproportionality under s. 7 of the Charter does not consider the beneficial effects of the law for society. It balances the negative effect on the individual against the purpose of the law, not against societal benefit that might flow from the law. As this Court said in Malmo-Levine [para. 181]:
In effect, the exercise undertaken by Braidwood J.A. was to balance the law’s salutary and deleterious effects. In our view, with respect, that is a function that is more properly reserved for s. 1. These are the types of social and economic harms that generally have no place in s. 7.
Thus, gross disproportionality is not concerned with the number of people who experience grossly disproportionate effects; a grossly disproportionate effect on one person is sufficient to violate the norm.
All three principles – arbitrariness, overbreadth, and gross disproportionality – compare the rights infringement caused by the law with the objective of the law, not with the law’s effectiveness. That is, they do not look to how well the law achieves its object, or to how much of the population the law benefits. They do not consider ancillary benefits to the general population. Furthermore, none of the principles measure the percentage of the population that is negatively impacted. The analysis is qualitative, not quantitative. The question under s. 7 is whether anyone’s life, liberty or security of the person has been denied by a law that is inherently bad; a grossly disproportionate, overbroad, or arbitrary effect on one person is sufficient to establish a breach of s. 7.
(b) The Relationship Between Section 7 and Section 1
This Court has previously identified parallels between the rules against arbitrariness, overbreadth, and gross disproportionality under s. 7 and elements of the s. 1 analysis for justification of laws that violate Charter rights. These parallels should not be allowed to obscure the crucial differences between the two sections.
Section 7 and s. 1 ask different questions. The question under s. 7 is whether the law’s negative effect on life, liberty, or security of the person is in accordance with the principles of fundamental justice. With respect to the principles of arbitrariness, overbreadth, and gross disproportionality, the specific questions are whether the law’s purpose, taken at face value, is connected to its effects and whether the negative effect is grossly disproportionate to the law’s purpose. Under s. 1, the 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.
By contrast,under s. 7, the claimant bears the burden of establishing that the law deprives her of life, liberty or security of the person, in a manner that is not connected to the law’s object or in a manner that is grossly disproportionate to the law’s object. The inquiry into the purpose of the law focuses on the nature of the object, not on its efficacy. The inquiry into the impact on life, liberty or security of the person is not quantitative – for example, how many people are negatively impacted – but qualitative. An arbitrary, overbroad, or grossly disproportionate impact on one person suffices to establish a breach of s. 7. To require s. 7 claimants to establish the efficacy of the law versus its deleterious consequences on members of society as a whole, would impose the government’s s. 1 burden on claimants under s. 7. That cannot be right.
In brief, although the concepts under s. 7 and s. 1 are rooted in similar concerns, they are analytically distinct.
It has been said that a law that violates s. 7 is unlikely to be justified under s. 1 of the Charter (Motor Vehicle Reference, at p. 518). The significance of the fundamental rights protected by s. 7 supports this observation. Nevertheless, the jurisprudence has also recognized that there may be some cases where s. 1 has a role to play (see, e.g., Malmo-Levine, at paras. 96-98). Depending on the importance of the legislative goal and the nature of the s. 7 infringement in a particular case, the possibility that the government could establish that a s. 7 violation is justified under s. 1 of the Charter cannot be discounted.
(4) Do the Impugned Laws Respect the Principles of Fundamental Justice?
(a) Section 210: The Bawdy-House Prohibition
(i) The Object of the Provision
The bawdy-house provision has remained essentially unchanged since it was moved to Part V of the Criminal Code, “Disorderly Houses, Gaming and Betting”, in the 1953-54 Code revision (c. 51, s. 182). In Rockert v The Queen, 1978 31 (SCC),  2 S.C.R. 704, Estey J. found “little, if any, doubt” in the authorities that the disorderly house provisions were not directed at the mischief of betting, gaming and prostitution per se, but rather at the harm to the community in which such activities were carried on in a notorious and habitual manner (p. 712). This objective can be traced back to the common law origins of the bawdy-house provisions (see, e.g., E. Coke, The Third Part of the Institutes of the Laws of England: Concerning High Treason, and Other Pleas of the Crown and Criminal Causes (1817, first published 1644, at pp. 205-6).
The appellant Attorneys General argue that the object of this provision, considered alone and in conjunction with the other prohibitions, is to deter prostitution. The record does not support this contention; on the contrary, it is clear from the legislative record that the purpose of the prohibition is to prevent community harms in the nature of nuisance.
There is no evidence to support a reappraisal of this purpose by Parliament. The doctrine against shifting objectives does not permit a new object to be introduced at this point (R. v Zundel, 1992 75 (SCC),  2 S.C.R. 731). On its face, the provision is only directed at in-call prostitution, and so cannot be said to aim at deterring prostitution generally. To find that it operates with the other Criminal Code provisions to deter prostitution generally is also unwarranted, given their piecemeal evolution and patchwork construction, which leaves out-calls and prostitution itself untouched. I therefore agree with the lower courts that the objectives of the bawdy-house provision are to combat neighbourhood disruption or disorder and to safeguard public health and safety.
(ii) Compliance With the Principles of Fundamental Justice
The courts below considered whether the bawdy-house prohibition is overbroad, or grossly disproportionate.
I agree with them that the negative impact of the bawdy-house prohibition on the applicants’ security of the person is grossly disproportionate to its objective. I therefore find it unnecessary to decide whether the prohibition is overbroad insofar as it applies to a single prostitute operating out of her own home (C.A., at para. 204). The application judge found on the evidence that moving to a bawdy-house would improve prostitutes’ safety by providing “the safety benefits of proximity to others, familiarity with surroundings, security staff, closed-circuit television and other such monitoring that a permanent indoor location can facilitate” (para. 427). Balancing this against the evidence demonstrating that “complaints about nuisance arising from indoor prostitution establishments are rare” (ibid.), she found that the harmful impact of the provision was grossly disproportionate to its purpose.
The Court of Appeal acknowledged that empirical evidence on the subject is difficult to gather, since almost all the studies focus on street prostitution. However, it concluded that the evidence supported the application judge’s findings on gross disproportionality – in particular, the evidence of the high homicide rate among prostitutes, with the overwhelming number of victims being street prostitutes. The Court of Appeal agreed that moving indoors amounts to a “basic safety precaution” for prostitutes, one which the bawdy-house provision makes illegal (paras. 206-7).
In my view, this conclusion was not in error. The harms identified by the courts below are grossly disproportionate to the deterrence of community disruption that is the object of the law. Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes. A law that prevents street prostitutes from resorting to a safe haven such as Grandma’s House while a suspected serial killer prowls the streets, is a law that has lost sight of its purpose.
(b) Section 212(1)(j): Living on the Avails of Prostitution
(i) The Object of the Provision
This Court has held, per Cory J. for the majority in Downey, that the purpose of this provision is to target pimps and the parasitic, exploitative conduct in which they engage [p. 32]:
It can be seen that the majority of offences outlined in s. 195 are aimed at the procurer who entices, encourages or importunes a person to engage in prostitution. Section 195(1)(j) [now s. 212(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 prostitute’s earnings. That person is commonly and aptly termed a pimp.
The Attorneys General of Canada and Ontario argue that the true objective of s. 212(1)(j) is to target the commercialization of prostitution, and to promote the values of dignity and equality. This characterization of the objective does not accord with Downey, and is not supported by the legislative record. It must be rejected.
(iI) Compliance With the Principles of Fundamental Justice
The courts below concluded that the living on the avails provision is overbroad insofar as it captures a number of non-exploitative relationships which are not connected to the law’s purpose. The courts below also concluded that the provision’s negative effect on the security and safety of prostitutes is grossly disproportionate to its objective of protecting prostitutes from harm.
I agree with the courts below that the living on the avails provision is overbroad.
The provision has been judicially restricted to those who provide a service or good to a prostitute because she is a prostitute, thus excluding grocers and doctors, for instance (Shaw v Director of Public Prosecutions,  A.C. 220 (H.L.)). It also has been held to require that exploitation be proven in the case of a person who lives with the prostitute, in order to exclude people in legitimate domestic relationships with a prostitute (Grilo). These refinements render the prohibition narrower than its words might suggest.
The question here is whether the law nevertheless goes too far and thus deprives the applicants of their security of the person in a manner unconnected to the law’s objective. The law punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes (for example, controlling and abusive pimps) and those who could increase the safety and security of prostitutes (for example, legitimate drivers, managers, or bodyguards). It also includes anyone involved in business with a prostitute, such as accountants or receptionists. In these ways, the law includes some conduct that bears no relation to its purpose of preventing the exploitation of prostitutes. The living on the avails provision is therefore overbroad.
The appellant Attorneys General argue that the line between an exploitative pimp and a prostitute’s legitimate driver, manager or bodyguard, blurs in the real world. A relationship that begins on a non-exploitative footing may become exploitative over time. If the provision were tailored more narrowly – for example, by reading in “in circumstances of exploitation” as the Court of Appeal did – evidentiary difficulties may lead to exploiters escaping liability. Relationships of exploitation often involve intimidation and manipulation of the kind that make it very difficult for a prostitute to testify. For these reasons, the Attorneys General argue, the provision must be drawn broadly in order to effectively capture those it targets.
This argument is more appropriately addressed under the s. 1 analysis. As stated above, if a law captures conduct that bears no relation to its purpose, the law is overbroad under s. 7; enforcement practicality is one way the government may justify an overbroad law under s. 1 of the Charter.
Having found that the prohibition on living on the avails of prostitution is overbroad, I find it unnecessary to consider whether it is also grossly disproportionate to its object of protecting prostitutes from exploitative relationships.
(c) Section 213(1)(c): Communicating in Public for the Purposes of Prostitution
(i) The Object of the Provision
The object of the communicating provision was explained by Dickson C.J. in the Prostitution Reference [pp. 1134-35]:
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 of the contemporary reality 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.
The Criminal Code provision subject to attack in these proceedings clearly responds to the concerns of home-owners, businesses, and the residents of urban neighbourhoods. Public solicitation for the purposes of prostitution is closely associated with street congestion and noise, oral harassment of non-participants and general detrimental effects on passers-by or bystanders, especially children.
It is clear from these reasons that the purpose of the communicating provision is not to eliminate street prostitution for its own sake, but to take prostitution “off the streets and out of public view” in order to prevent the nuisances that street prostitution can cause. The Prostitution Reference belies the Attorneys General’s argument that Parliament’s overall objective in these provisions is to deter prostitution.
(ii) Compliance With the Principles of Fundamental Justice
The application judge concluded that the harm imposed by the prohibition on communicating in public was grossly disproportionate to the provision’s object of removing the nuisance of prostitution from the streets. This was based on evidence that she found established that the ability to screen clients was an “essential tool” to avoiding violent or drunken clients (application decision, at para. 432).
The majority of the Court of Appeal found that the application judge erred in her analysis of gross disproportionality by attaching too little importance to the objective of s. 213(1)(c), and by incorrectly finding on the evidence that face-to-face communication with a prospective customer is essential to enhancing prostitutes’ safety (at paras. 306 and 310).
In my view, the Court of Appeal majority’s reasoning on this question is problematic, largely for the reasons set out by MacPherson J.A., dissenting in part. Four aspects of the majority’s analysis are particularly troubling.
First, in concluding that the application judge accorded too little weight to the legislative objective of s. 213(1)(c), the majority of the Court of Appeal criticized her characterization of the object of the provision as targeting “noise, street congestion, and the possibility that the practice of prostitution will interfere with those nearby” (C.A., at para. 306). But the application judge’s conclusion was in concert with the object of s. 213(1)(c) established by Dickson C.J. in the Prostitution Reference, which the majority of the Court of Appeal endorsed earlier in their reasons (at para. 286).
Compounding this error, the majority of the Court of Appeal inflated the objective of the prohibition on public communication by referring to “drug possession, drug trafficking, public intoxication, and organized crime” (para. 307), even though Dickson C.J. explicitly excluded the exposure of “related violence, drugs and crime” to vulnerable young people from the objectives of s. 213(1)(c). At most, the provision’s effect on these other issues is an ancillary benefit – and, as such, it should not play into the gross disproportionality analysis, which weighs the actual objective of the provision against its negative impact on the individual’s life, liberty and security of the person.
The three remaining concerns with the majority’s reasoning relate to the other side of the balance: the assessment of the impact of the provision.
First, the majority of the Court of Appeal erroneously substituted its assessment of the evidence for that of the application judge. It found that the application judge’s conclusion that face-to-face communication is essential to enhancing prostitutes’ safety was based only on “anecdotal evidence .... informed by her own common sense” (para. 311). This was linked to its error, discussed above, in according too little deference to the application judge on findings of social and legislative facts. MacPherson J.A. for the minority, correctly countered that the evidence on this point came from both prostitutes’ own accounts and from expert assessments, and provided a firm basis for the application judge’s conclusion (at paras. 348-50).
Second, the majority ignored the law’s effect of displacing prostitutes to more secluded, less secure locations. The application judge highlighted this displacement (at para. 331), citing the evidence found in the report of the House of Commons Standing Committee on Justice and Human Rights Subcommittee on Solicitation Laws (The Challenge of Change: A Study of Canada’s Criminal Prostitution Laws (2006)) on the effects of s. 213(1)(c). The majority’s conclusion that the application judge did not have a proper basis to conclude that face-to-face communication enhances safety may be explained in part by their failure to consider the impact of the provision on displacement.
Related to this is the uncontested fact that the communication ban prevents street workers from bargaining for conditions that would materially reduce their risk, such as condom use and the use of safe houses.
Finally, the majority of the Court of Appeal majority, in rejecting the application judge’s conclusions, relied on its own speculative assessment of the impact of s. 213(1)(c) [para. 312]:
While it is fair to say that a street prostitute might be able to avoid a “bad date” by negotiating details such as payment, services to be performed and condom use up front, it is equally likely that the customer could pass muster at an early stage, only to turn violent once the transaction is underway. It is also possible that the prostitute may proceed even in the face of perceived danger, either because her judgment is impaired by drugs or alcohol, or because she is so desperate for money that she feels compelled to take the risk.
It is certainly conceivable, as this passage suggests, that some street prostitutes would not refuse a client even if communication revealed potential danger. It is also conceivable that the danger may not be perfectly predicted in advance. However, that does not negate the application judge’s finding that communication is an essential tool that can decrease risk. The assessment is qualitative, not quantitative. If screening could have prevented one woman from jumping into Robert Pickton’s car, the severity of the harmful effects is established.
In sum, the Court of Appeal wrongly attributed errors in reasoning to the application judge and made a number of errors in considering gross disproportionality. I would restore the application judge’s conclusion that s. 213(1)(c) is grossly disproportionate. The provision’s negative impact on the safety and lives of street prostitutes is a grossly disproportionate response to the possibility of nuisance caused by street prostitution.
(c) Do the Prohibitions Against Communicating in Public Violate Section 2(b) of the Charter?
Having concluded that the impugned laws violate s. 7, it is unnecessary to consider this question.
(d) Are the Infringements Justified Under Section 1 of the Charter?
The appellant Attorneys General have not seriously argued that the laws, if found to infringe s. 7, can be justified under s. 1 of the Charter. Only the Attorney General of Canada addressed this in his factum, and then, only briefly. I therefore find it unnecessary to engage in a full s. 1 analysis for each of the impugned provisions.However, some of their arguments under s. 7 of the Charter are properly addressed at this stage of the analysis.
In particular, the Attorneys General attempt to justify the living on the avails provision on the basis that it must be drafted broadly in order to capture all exploitative relationships, which can be difficult to identify. However, the law not only catches drivers and bodyguards, who may actually be pimps, but it also catches clearly non-exploitative relationships, such as receptionists or accountants who work with prostitutes. The law is therefore not minimally impairing. Nor, at the final stage of the s. 1 inquiry, is the law’s effect of preventing prostitutes from taking measures that would increase their safety, and possibly save their lives, outweighed by the law’s positive effect of protecting prostitutes from exploitative relationships.
The Attorneys General have not raised any other arguments distinct from those considered under s. 7. I therefore find that the impugned laws are not saved by s. 1 of the Charter.
V. Result and Remedy
I would dismiss the appeals and allow the cross-appeal. Sections 210, 212(1)(j) and 213(1)(c) are declared to be inconsistent with the Canadian Charter of Rights and Freedoms and hence are void.
I have concluded that each of the challenged provisions, considered independently, suffers from constitutional infirmities that violate the Charter. That does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted. Prohibitions on keeping a bawdy-house, living on the avails of prostitution and communication related to prostitution are intertwined. They impact on each other. Greater latitude in one measure – for example, permitting prostitutes to obtain the assistance of security personnel – might impact on the constitutionality of another measure – for example, forbidding the nuisances associated with keeping a bawdy-house. The regulation of prostitution is a complex and delicate matter. It will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime.
This raises the question of whether the declaration of invalidity should be suspended and if so, for how long.
On the one hand, immediate invalidity would leave prostitution totally unregulated while Parliament grapples with the complex and sensitive problem of how to deal with it. How prostitution is regulated is a matter of great public concern, and few countries leave it entirely unregulated. Whether immediate invalidity would pose a danger to the public or imperil the rule of law (the factors for suspension referred to in Schachter v Canada, 1992 74 (SCC),  2 S.C.R. 679) may be subject to debate. However, it is clear that moving abruptly from a situation where prostitution is regulated to a situation where it is entirely unregulated would be a matter of great concern to many Canadians.
On the other hand, leaving the prohibitions against bawdy-houses, living on the avails of prostitution and public communication for purposes of prostitution in place in their present form leaves prostitutes at increased risk for the time of the suspension – risks which violate their constitutional right to security of the person.
The choice between suspending the declaration of invalidity and allowing it to take immediate effect is not an easy one. Neither alternative is without difficulty. However, considering all the interests at stake, I conclude that the declaration of invalidity should be suspended for one year.
Michael H. Morris, Nancy Dennison and Gail Sinclair (instructed by Attorney General of Canada, Toronto), for the appellant/respondent on cross‑appeal the Attorney General of Canada.
Jamie C. Klukach, Christine Bartlett‑Hughes and Megan Stephens (instructed by Attorney General of Ontario, Toronto), for the appellant/respondent on cross‑appeal the Attorney General of Ontario.
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