Attorney General of Canada Appellant/Respondent on cross-appeal v. Terri Jean Bedford, Amy Lebovitch and Valerie Scott, 2013 SCC 72

SUPREME COURT OF CANADA Citation: Canada (Attorney General) v.

Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 Date: 20131220 Docket: 34788 Between: Attorney General of Canada Appellant/Respondent on cross-appeal and Terri Jean Bedford, Amy Lebovitch and Valerie Scott Respondents/Appellants on cross-appeal And Between: Attorney General of Ontario Appellant/Respondent on cross-appeal and Terri Jean Bedford, Amy Lebovitch and Valerie Scott Respondents/Appellants on cross-appeal - and - Attorney General of Quebec, Pivot Legal Society, Downtown Eastside Sex Workers United Against Violence Society, PACE Society, Secretariat of the Joint United Nations Programme on HIV/AIDS, British Columbia Civil Liberties Association, Evangelical Fellowship of Canada, Canadian HIV/AIDS Legal Network, British Columbia Centre for Excellence in HIV/AIDS, HIV & AIDS Legal Clinic Ontario, Canadian Association of Sexual Assault Centres, Native Women’s Association of Canada, Canadian Association of Elizabeth Fry Societies, Action ontarienne contre la violence faite aux femmes, Concertation des luttes contre l’exploitation sexuelle, Regroupement québécois des Centres d’aide et de lutte contre les agressions à caractère sexuel, Vancouver Rape Relief Society, Christian Legal Fellowship, Catholic Civil Rights League, REAL Women of Canada, David Asper Centre for Constitutional Rights, Simone de Beauvoir Institute, AWCEP Asian Women for Equality Society, operating as Asian Women Coalition Ending Prostitution and Aboriginal Legal Services of Toronto Inc.

Interveners Coram: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ. Reasons for Judgment: (paras. 1 to 169) McLachlin C.J. (LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ. concurring)

Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 Attorney General of Canada Appellant/Respondent on cross-appeal v. Terri Jean Bedford, Amy Lebovitch and Valerie Scott Respondents/Appellants on cross-appeal - and - Attorney General of Ontario Appellant/Respondent on cross-appeal v.

Terri Jean Bedford, Amy Lebovitch and Valerie Scott Respondents/Appellants on cross-appeal and Attorney General of Quebec, Pivot Legal Society, Downtown Eastside Sex Workers United Against Violence Society, PACE Society, Secretariat of the Joint United Nations Programme on HIV/AIDS, British Columbia Civil Liberties Association, Evangelical Fellowship of Canada, Canadian HIV/AIDS Legal Network, British Columbia Centre for Excellence in HIV/AIDS, HIV & AIDS Legal Clinic Ontario, Canadian Association of Sexual Assault Centres, Native Women’s Association of Canada, Canadian Association of Elizabeth Fry Societies, Action ontarienne contre la violence faite aux femmes, Concertation des luttes contre l’exploitation sexuelle, Regroupement québécois des Centres d’aide et de lutte contre les agressions à caractère sexuel, Vancouver Rape Relief Society, Christian Legal Fellowship, Catholic Civil Rights League, REAL Women of Canada, David Asper Centre for Constitutional Rights, Simone de Beauvoir Institute, AWCEP Asian Women for Equality Society, operating as Asian Women Coalition Ending Prostitution and Aboriginal Legal Services of Toronto Inc.

Interveners Indexed as: Canada (Attorney General) v. Bedford 2013 SCC 72

File No.: 34788. 2013: June 13; 2013: December 20. [*] Present: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ. on appeal from the court of appeal for ontario Constitutional law — Charter of Rights — Right to security of person — Freedom of expression — Criminal law — Prostitution — Common bawdy-house — Living on avails of prostitution — Communicating in public for purposes of prostitution — Prostitutes challenging constitutionality of prohibitions on bawdy-houses, living on avails of prostitution and communicating in public for purposes of prostitution under Criminal Code — Prostitutes alleging impugned provisions violate s. 7 security of the person rights by preventing implementation of safety measures that could protect them from violent clients — Prostitutes also alleging prohibition on communicating in public for purposes of prostitution infringes freedom of expression guarantee — Canadian Charter of Rights and Freedoms, ss. 1 , 2(b) , 7 — Criminal Code, R.S.C. 1985, c.

C-46, ss. 197(1) , 210 , 212(1) (j), 213(1) (c). Courts — Decisions — Stare decisis — Standard of review — Prostitutes challenging constitutionality of prohibitions on bawdy-houses, living on avails of prostitution and communicating in public for purposes of prostitution under Criminal Code — Under what circumstances application judge could revisit conclusions of Supreme Court of Canada in Prostitution Reference which upheld bawdy-house and communicating prohibitions — Degree of deference owed to application judge’s findings on social and legislative facts.

B, L and S, current or former prostitutes, brought an application seeking declarations that three provisions of the Criminal Code , R.S.C. 1985, c. C-46, which criminalize various activities related to prostitution, infringe their rights under s. 7 of the Charter : s. 210 makes it an offence to keep or be in a bawdy-house; s. 212(1)(

j) prohibits living on the avails of prostitution; and, s. 213(1)(

c) prohibits communicating in public for the purposes of prostitution. They argued that these restrictions on prostitution put the safety and lives of prostitutes at risk, by preventing them from implementing certain safety measures — such as hiring security guards or “screening” potential clients — that could protect them from violence. B, L and S also alleged that s. 213(1) (

c) infringes the freedom of expression guarantee under s. 2(

b) of the Charter , and that none of the provisions are saved under s. 1 . The Ontario Superior Court of Justice granted the application, declaring, without suspension, that each of the impugned Criminal Code provisions violated the Charter and could not be saved by s. 1 . The Ontario Court of Appeal agreed s. 210 was unconstitutional and struck the word “prostitution” from the definition of “common bawdy-house” as it applies to s. 210 , however it suspended the declaration of invalidity for 12 months. The court declared that s. 212(1) (

j) was an unjustifiable violation of s. 7 , ordering the reading in of words to clarify that the prohibition on living on the avails of prostitution applies only to those who do so “in circumstances of exploitation”. It further held the communicating prohibition under s. 213(1) (

c) did not violate either s. 2 (

b) or s. 7 . The Attorneys General appeal from the declaration that ss. 210 and 212(1)(

j) of the Code are unconstitutional. B, L and S cross-appeal on the constitutionality of s. 213(1) (

c) and in respect of the s. 210 remedy. Held : The appeals should be dismissed and the cross-appeal allowed. Sections 210, as it relates to prostitution, and ss. 212(1) (

j) and 213(1) (

c) of the Criminal Code are declared to be inconsistent with the Charter . The word “prostitution” is struck from the definition of “common bawdy-house” in s. 197(1) of the Criminal Code as it applies to s. 210 only. The declaration of invalidity should be suspended for one year. The three impugned provisions, primarily concerned with preventing public nuisance as well as the exploitation of prostitutes, do not pass Charter muster: they infringe the s. 7 rights of prostitutes by depriving them of security of the person in a manner that is not in accordance with the principles of fundamental justice.

It is not necessary to determine whether this Court should depart from or revisit its conclusion in the Prostitution Reference that s. 213(1) (

c) does not violate s. 2 (

b) since it is possible to resolve this case entirely on s. 7 grounds. The common law principle of stare decisis is subordinate to the Constitution and cannot require a court to uphold a law which is unconstitutional. 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. The threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence.

In this case, the application judge was entitled to rule on the new legal issues of whether the laws in question violated the security of the person interests under s. 7 , as the majority decision of this Court in the Prostitution Reference was based on the s. 7 physical liberty interest alone. 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.

The application judge was not, however, entitled to decide the question of whether the communication provision is a justified limit on freedom of expression. That issue was decided in the Prostitution Reference and was binding on her. The application judge’s findings on social and legislative facts are entitled to deference. The standard of review for findings of fact — whether adjudicative, social, or legislative — remains palpable and overriding error. The impugned laws negatively impact security of the person rights of prostitutes and thus engage s. 7.

The proper standard of causation is a flexible “sufficient causal connection” standard, as correctly adopted by the application judge. The prohibitions all heighten the risks the applicants face in prostitution — itself a legal activity. They 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.

That causal connection is not negated by the actions of third-party johns and pimps, or prostitutes’ so-called choice to engage in prostitution. 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. Moreover, it makes no difference that the conduct of pimps and johns is the immediate source of the harms suffered by prostitutes. The violence of a john does not diminish the role of the state in making a prostitute more vulnerable to that violence.

The applicants have also established that the deprivation of their security of the person is not in accordance with theprinciples of fundamental justice: principles that attempt to capture basic values underpinning our constitutional order. This caseconcerns the basic values against arbitrariness (where there is no connection between the effect and the object of the law), overbreadth(where the law goes too far and interferes with some conduct that bears no connection to its objective), and gross disproportionality(where the effect of the law is grossly disproportionate to the state’s objective).

These are three distinct principles, but overbreadth isrelated to arbitrariness, in that the question for both is whether there is no connection between the law’s effect and its objective. All threeprinciples compare the rights infringement caused by the law with the objective of the law, not with the law’s effectiveness; they do notlook to how well the law achieves its object, or to how much of the population the law benefits or is negatively impacted. The analysisis qualitative, not quantitative.

The question under s. 7 is whether anyone’s life, liberty or security of the person has been denied by alaw that is inherently bad; a grossly disproportionate, overbroad, or arbitrary effect on one person is sufficient to establish a breach ofs. 7. Applying these principles to the impugned provisions, the negative impact of the bawdy-house prohibition (s. 210) on theapplicants’ security of the person is grossly disproportionate to its objective of preventing public nuisance.

The harms to prostitutesidentified by the courts below, such as being prevented from working in safer fixed indoor locations and from resorting to safe houses,are grossly disproportionate to the deterrence of community disruption. Parliament has the power to regulate against nuisances, but notat the cost of the health, safety and lives of prostitutes. Second, the purpose of the living on the avails of prostitution prohibition ins. 212(1)(

j) is to target pimps and the parasitic, exploitative conduct in which they engage. The law, however, punishes everyone wholives on the avails of prostitution without distinguishing between those who exploit prostitutes and those who could increase the safetyand security of prostitutes, for example, legitimate drivers, managers, or bodyguards. It also includes anyone involved in business with aprostitute, such as accountants or receptionists. In these ways, the law includes some conduct that bears no relation to its purpose ofpreventing the exploitation of prostitutes.

The living on the avails provision is consequently overbroad. Third, the purpose of thecommunicating prohibition in s. 213(1)(

c) is not to eliminate street prostitution for its own sake, but to take prostitution off the streetsand out of public view in order to prevent the nuisances that street prostitution can cause. The provision’s negative impact on the safetyand lives of street prostitutes, who are prevented by the communicating prohibition from screening potential clients for intoxication andpropensity to violence, is a grossly disproportionate response to the possibility of nuisance caused by street prostitution.

While the Attorneys General have not seriously argued that the laws, if found to infringe s. 7, can be justified under s. 1,some of their arguments under s. 7 are properly addressed at this stage of the analysis. In particular, they attempt to justify the living onthe avails provision on the basis that it must be drafted broadly in order to capture all exploitative relationships. However, the law notonly catches drivers and bodyguards, who may actually be pimps, but it also catches clearly non-exploitative relationships, such asreceptionists or accountants who work with prostitutes.

The law is therefore not minimally impairing. Nor, at the final stage of the s. 1inquiry, 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 impugned laws are not saved bys. 1.

Concluding that each of the challenged provisions violates the Charter does not mean that Parliament is precluded fromimposing limits on where and how prostitution may be conducted, as long as it does so in a way that does not infringe the constitutionalrights of prostitutes. 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. Considering all the interests at stake, the declaration ofinvalidity should be suspended for one year.

Cases Cited Referred to: Reference re ss. 193 and 195.1(1)(

c) of the Criminal Code (Man.), (SCC), [1990] 1 S.C.R.1123; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; R. v. Morgentaler, (SCC), [1988] 1 S.C.R. 30; Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489; Housen v. Nikolaisen, 2002 SCC 33, [2002]2 S.C.R. 235; RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199; R. v. Malmo-Levine,2003 SCC 74, [2003] 3 S.C.R. 571; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458; R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330;H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; R. v.

Pierce (1982), (ON CA), 37 O.R. (2d)721; R. v. Worthington (1972), (ON CA), 10 C.C.C. (2d) 311; R. v. Downey, (SCC), [1992] 2 S.C.R.10; R. v. Grilo (1991), (ON CA), 2 O.R. (3d) 514; R. v. Barrow (2001), (ON CA), 54 O.R. (3d)417; R. v. Head (1987), (BC CA), 59 C.R. (3d) 80; Blencoe v. British Columbia (Human Rights Commission), 2000SCC 44, [2000] 2 S.C.R. 307; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; Suresh v. Canada (Minister of Citizenship andImmigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44; Rodriguez v.

BritishColumbia (Attorney General), (SCC), [1993] 3 S.C.R. 519; New Brunswick (Minister of Health and CommunityServices) v. G. (J.), (SCC), [1999] 3 S.C.R. 46; Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R.486; Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791; R. v. Heywood, (SCC), [1994] 3 S.C.R.761; R. v. Demers, 2004 SCC 46, [2004] 2 S.C.R. 489; R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555; R. v. S.S.C., 2008 BCCA 262,257 B.C.A.C. 57; R. v. Clay, 2003 SCC 75, [2003] 3 S.C.R. 735; Rockert v. The Queen, (SCC), [1978] 2 S.C.R. 704; R.v. Zundel, (SCC), [1992] 2 S.C.R. 731; Shaw v.

Director of Public Prosecutions, [1962] A.C. 220; Schachter v. Canada, (SCC), [1992] 2 S.C.R. 679. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 7. Criminal Code, R.S.C. 1985, c. C-46, ss. 197(1) “common bawdy-house”, 210, 212(1)(j), 213(1)(c). Criminal Code, S.C. 1953-54, c. 51,

Part V, s. 182. Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 14.05(3)(g.1).

Authors Cited Canada. House of Commons. Subcommittee on Solicitation Laws of the Standing Committee on Justice and Human Rights. The Challenge of Change: A Study of Canada’s Criminal Prostitution Laws . Ottawa: Communication Canada, 2006. Coke, Edward. The Third Part of the Institutes of the Laws of England: Concerning High Treason, and Other Pleas of the Crown and Criminal Causes . London: Clarke, 1817 (first published 1644). Hogg, Peter W. “The Brilliant Career of

Section 7 of the Charter ” (2012), 58 S.C.L.R. (2d) 195 . Ontario. Inquiry into Pediatric Forensic Pathology in Ontario: Report , vol. 3, Policy and Recommendations , by Stephen T. Goudge. Toronto: Ministry of the Attorney General, 2008. Rubin, Gerald. “The Nature, Use and Effect of Reference Cases in Canadian Constitutional Law” (1960), 6 McGill L.J. 168. Stewart, Hamish. Fundamental Justice:

Section 7 of the Canadian Charter of Rights and Freedoms . Toronto: Irwin Law, 2012. APPEALS and CROSS-APPEAL from a judgment of the Ontario Court of Appeal (Doherty, Rosenberg, Feldman, MacPherson and Cronk JJ.A.), 2012 ONCA 186 , 109 O.R. (3d) 1, 290 O.A.C. 236, 346 D.L.R. (4th) 385, 282 C.C.C. (3d) 1, 256 C.R.R. (2d) 143, 91 C.R. (6th) 257, [2012] O.J. No. 1296 (QL), 2012 CarswellOnt 3557, affirming in part a decision of Himel J., 2010 ONSC 4264 , 102 O.R. (3d) 321, 327 D.L.R. (4th) 52, 262 C.C.C. (3d) 129, 217 C.R.R. (2d) 1, 80 C.R. (6th) 256, [2010] O.J. No. 4057 (QL), 2010 CarswellOnt 7249.

Appeals dismissed and cross-appeal allowed. Michael H. Morris , Nancy Dennison and Gail Sinclair , for the appellant/respondent on cross-appeal the Attorney General of Canada. Jamie C. Klukach , Christine Bartlett-Hughes and Megan Stephens , for the appellant/respondent on cross-appeal the Attorney General of Ontario. Alan N. Young , Marlys A. Edwardh and Daniel Sheppard , for the respondents/appellants on cross-appeal. Sylvain Leboeuf and Julie Dassylva , for the intervener the Attorney General of Quebec. Katrina E. Pacey , Joseph J. Arvay , Q.C. , Elin R. S. Sigurdson , Lisa C. Glowacki and M.

Kathleen Kinch , for the interveners the Pivot Legal Society, the Downtown Eastside Sex Workers United Against Violence Society and the PACE Society. Written submissions only by Michael A. Feder and Tammy Shoranick , for the intervener the Secretariat of the Joint United Nations Programme on HIV/AIDS. Brent B. Olthuis , Megan Vis-Dunbar and Michael Sobkin , for the intervener the British Columbia Civil Liberties Association. Georgialee A. Lang and Donald Hutchinson , for the intervener the Evangelical Fellowship of Canada. Jonathan A.

Shime , Megan Schwartzentruber and Renée Lang , for the interveners the Canadian HIV/AIDS Legal Network, the British Columbia Centre for Excellence in HIV/AIDS and the HIV & AIDS Legal Clinic Ontario.

Janine Benedet and Fay Faraday , for the interveners the Canadian Association of Sexual Assault Centres, the Native Women’s Association of Canada, the Canadian Association of Elizabeth Fry Societies, Action ontarienne contre la violence faite aux femmes, Concertation des luttes contre l’exploitation sexuelle, Regroupement québécois des Centres d’aide et de lutte contre les agressions à caractère sexuel and the Vancouver Rape Relief Society. Robert W. Staley , Ranjan K. Agarwal and Amanda C. McLachlan , for the interveners the Christian Legal Fellowship, the Catholic Civil Rights League and REAL Women of Canada.

Joseph J. Arvay , Q.C. , and Cheryl Milne , for the intervener the David Asper Centre for Constitutional Rights. Walid Hijazi , for the intervener the Simone de Beauvoir Institute. Gwendoline Allison , for the intervener the AWCEP Asian Women for Equality Society, operating as Asian Women Coalition Ending Prostitution. Christa Big Canoe and Emily R. Hill , for the intervener Aboriginal Legal Services of Toronto Inc. TABLE OF CONTENTS Paragraph I. ......... The Case . 3 II. ....... Legislation . 16 III. ...... Prior Decisions . 17

A. Ontario Superior Court of Justice (Himel J.) 17 B. Ontario Court of Appeal (Doherty, Rosenberg, Feldman, MacPherson and Cronk JJ.A.) 25 IV. ...... Discussion . 36 A. Preliminary Issues . 38

(1) Revisiting the Prostitution Reference . 38

(2) Deference to the Application Judge’s Findings on Social and Legislative Facts . 48 B.

Section 7 Analysis . 57

(1) Is Security of the Person Engaged? . 58 (

a) Sections 197 and 210: Keeping a Common Bawdy-House . 61 (b) Section 212(1)( j ): Living on the Avails of Prostitution . 66 (c) Section 213(1)( c ): Communicating in a Public Place . 68

(2) A Closer Look at Causation . 73 (

a) The Nature of the Required Causal Connection . 74 (

b) Is the Causal Connection Negated by Choice or the Role of Third Parties? . 79

(3) Principles of Fundamental Justice . 93 (

a) The Applicable Norms . 93 (

b) The Relationship Between

Section 7 and

Section 1 . 124

(4) Do the Impugned Laws Respect the Principles of Fundamental Justice? . 130 (

a) Section 210: The Bawdy-House Prohibition . 130 (

i) The Object of the Provision . 130 (ii) Compliance With the Principles of Fundamental Justice . 133 (b) Section 212(1)( j ): Living on the Avails of Prostitution . 137 (

i) The Object of the Provision . 137 (ii) Compliance With the Principles of Fundamental Justice . 139 (c) Section 213(1)( c ): Communicating in Public for the Purposes of Prostitution . 146 (

i) The Object of the Provision . 146 (ii) Compliance With the Principles of Fundamental Justice . 148 C. Do the Prohibitions Against Communicating in Public Violate

Section 2(

b) of the Charter ? . 160 D. Are the Infringements Justified Under

Section 1 of the Charter ? . 161 V. ....... Result and Remedy . 164 The judgment of the Court was delivered by [ 1 ] The Chief Justice — 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. [ 2 ] 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 [ 3 ] 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. [ 4 ] 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. [ 5 ] 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. [ 6 ] 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 . [ 7 ] 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). [ 8 ] 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. [ 9 ] 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). [ 10 ] 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. [ 11 ] 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. [ 12 ] 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. [ 13 ] 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. [ 14 ] 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. [ 15 ] 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. II. Legislation [ 16 ] The relevant legislation is as follows: Canadian Charter of Rights and Freedoms 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 2. Everyone has the following fundamental freedoms: . . . (

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Criminal Code 197.

(1) In this Part, . . . “common bawdy-house” means a place that is (

a) kept or occupied, or (

b) resorted to by one or more persons for the purpose of prostitution or the practice of acts of indecency;

(1) Every one who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term notexceeding two years.

(2) Every one who (

a) is an inmate of a common bawdy-house, (

b) is found, without lawful excuse, in a common bawdy-house, or (

c) as owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or control of any place, knowingly permits the place orany part thereof to be let or used for the purposes of a common bawdy-house, is guilty of an offence punishable on

summary conviction.

(3) Where a person is convicted of an offence under subsection (1), the court shall cause a notice of the conviction to be served onthe owner, landlord or lessor of the place in respect of which the person is convicted or his agent, and the notice shall contain a statementto the effect that it is being served pursuant to this section.

(4) Where a person on whom a notice is served under subsection (3) fails forthwith to exercise any right he may have to determinethe tenancy or right of occupation of the person so convicted, and thereafter any person is convicted of an offence under subsection (1) inrespect of the same premises, the person on whom the notice was served shall be deemed to have committed an offence under subsection(1) unless he proves that he has taken all reasonable steps to prevent the recurrence of the offence. 212.

(1) Every one who . . . (

j) lives wholly or in part on the avails of prostitution of another person, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. 213.

(1) Every person who in a public place or in any place open to public view . . . (

c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable onsummary conviction. III. Prior Decisions A. Ontario Superior Court of Justice (Himel J.) [17] The application judge, Himel J., concluded that the applicants had private interest standing to challenge theprovisions. She held that the decision of this Court upholding the bawdy-house and communicating law in the Reference re ss. 193 and195.1(1)(

c) of the Criminal Code (Man.), (SCC), [1990] 1 S.C.R. 1123 (“Prostitution Reference”), did not prevent herfrom reviewing their constitutionality because: (1) 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 ; (2) the evidentiary record before her was much richer, based on research not available in 1990; (3) the social, political and economic assumptions underlying the Prostitution Reference may no longer be valid; and (4) the type of expression at issue differed from that considered in the Prostitution Reference . [ 18 ] 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: 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. [paras. 361-62] [ 19 ] 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. [ 20 ] 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. [ 21 ] 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. [ 22 ] 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 . [ 23 ] 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 . [ 24 ] 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.) [ 25 ] 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. [ 26 ] 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. [ 27 ] 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). [ 28 ] 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 . [ 29 ] 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: (1) its effects were equally or more serious than the other provision; (2) the application judge correctly stated the objective of the provision; (3) the record supported the conclusion that screening is an essential tool for safety; (4) beyond screening, the provision adversely impacts safety by forcing prostitutes to work in isolated and dangerous areas; (5) the provision impacts the most vulnerable class of prostitutes, street workers, raising s. 15 equality concerns; (6) the recent decision of this Court in Canada (Attorney General) v.

PHS Community Services Society , 2011 SCC 44 , [2011] 3 S.C.R. 134, supports the conclusion that the provision violates s. 7 ; and (7) 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 . [ 30 ] In the course of arriving at its conclusions, the majority of the Court of Appeal made a number of ancillary observations of importance. [ 31 ] 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). [ 32 ] 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). [ 33 ] 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). [ 34 ] 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). [ 35 ] 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). IV. Discussion [ 36 ] 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. [ 37 ] Before turning to the Charter arguments before us, I will first discuss two preliminary issues: (1) whether the 1990 decision in the Prostitution Reference , upholding the bawdy-house and communication prohibitions, is binding on trial judges and this Court; and (2) 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 [ 38 ] Certainty in the law requires that courts follow and apply authoritative precedents. Indeed, this is the foundational principle upon which the common law relies. [ 39 ] 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. [ 40 ] 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). [ 41 ] 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 Courtof 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 newevidence, or new social, political or economic assumptions, may make findings of fact for consideration by the higher courts, but cannotapply them to arrive at a different conclusion from the previous precedent (para. 76). [42] In my view, a trial judge can consider and decide arguments based on Charter provisions that were not raised in theearlier case; this constitutes a new legal issue.

Similarly, the matter may be revisited if new legal issues are raised as a consequence ofsignificant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters ofthe debate. [43] The intervener, the David Asper Centre for Constitutional Rights, argues that the common law principle of staredecisis is subordinate to the Constitution and cannot require a court to uphold a law which is unconstitutional.

It submits that lowercourts 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). [44] 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 newlegal issue is raised, or if there is a significant change in the circumstances or evidence.

This balances the need for finality and stabilitywith the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role. [45] It follows that the application judge in this case was entitled to rule on whether the laws in question violated thesecurity of the person interests under s. 7 of the Charter. In the Prostitution Reference, the majority decision was based on the s. 7physical liberty interest alone. Only Lamer J., writing for himself, touched on security of the person — and then, only in the context ofeconomic interests.

Contrary to the submission of the Attorney General of Canada, whether the s. 7 interest at issue is economic libertyor security of the person is not “a distinction without a difference” (A.F., at para. 94). The rights protected by s. 7 are “independentinterests, each of which must be given independent significance by the Court” (R. v. Morgentaler, (SCC), [1988] 1S.C.R. 30, at p. 52). Furthermore, the principles of fundamental justice considered in the Prostitution Reference dealt with vaguenessand the permissibility of indirect criminalization.

The principles raised in this case — arbitrariness, overbreadth, and grossdisproportionality — have, to a large extent, developed only in the last 20 years. [46] These considerations do not apply to the question of whether the communication provision is a justified limit onfreedom of expression. That issue was decided in the Prostitution Reference.

Re-characterizing the type of expression alleged to beinfringed did not convert this argument into a new legal issue, nor did the more current evidentiary record or the shift in attitudes andperspectives amount to a change in the circumstances or evidence that fundamentally shifted the parameters of the debate. [47] This brings me to the question of whether this Court should depart from its previous decision on the s. 2(

b) aspect ofthis case. At heart, this is a balancing exercise, in which the Court must weigh correctness against certainty (Canada v. Craig, 2012 SCC43, [2012] 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 [48] The Court of Appeal held that the application judge’s findings on social and legislative facts — that is, facts aboutsociety at large, established by complex social science evidence — were not entitled to deference. With respect, I cannot agree. As thisCourt stated in Housen v.

Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, appellate courts should not interfere with a trial judge’sfindings of fact, absent a palpable and overriding error. [49] When social and legislative evidence is put before a judge of first instance, the judge’s duty is to evaluate and weighthat evidence in order to arrive at the conclusions of fact necessary to decide the case. The trial judge is charged with the responsibilityof establishing the record on which subsequent appeals are founded.

Absent reviewable error in the trial judge’s appreciation of theevidence, a court of appeal should not interfere with the trial judge’s conclusions on social and legislative facts. This division of labouris basic to our court system. The first instance judge determines the facts; appeal courts review the decision for correctness in law orpalpable and overriding error in fact.

This applies to social and legislative facts as much as to findings of fact as to what happened in aparticular case. [50] There are two important practical reasons not to depart from the usual standard of review simply because social orlegislative facts are at issue. [51] First, to do so would require the appeal court to duplicate the sometimes time-consuming and tedious work of thefirst instance judge in reviewing all the material and reconciling differences between the experts, studies and research results.

A new setof judges would need to take the hours if not weeks required to intimately appreciate and analyze the evidence. And counsel for theparties would be required to take the appellate judges through all the evidence once again so they could draw their own conclusions. Allthis would increase the costs and delay in the litigation process.

In a review for error — which is what an appeal is — it makes moresense to have counsel point out alleged errors in the trial judge’s conclusions on the evidence and confine the court of appeal todetermining whether those errors vitiate the trial judge’s conclusions. [52] 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 affiantsand expert witnesses on the one hand, and social and legislative facts on the other (as proposed by the Court of Appeal), is to ask theimpossible of courts of appeal. Untangling the different sources of those conclusions and applying different standards of review to themwould immensely complicate the appellate task. [53] As the Attorney General of Canada points out, this Court’s decision in RJR-MacDonald Inc. v.

Canada (AttorneyGeneral), (SCC), [1995] 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 interveningyears, this Court has expressed a preference for social science evidence to be presented through an expert witness (R. v. Malmo-Levine,2003 SCC 74, [2003] 3 S.C.R. 571, at paras. 26-28; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 68). The assessment ofexpert 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 soin the wake of the Ontario report by Justice Goudge, which emphasized the role of the trial judge in preventing miscarriages of justiceflowing from flawed expert evidence (Inquiry into Pediatric Forensic Pathology in Ontario: Report, vol. 3, Policy andRecommendations (2008)). The distinction between adjudicative and legislative facts can no longer justify gradations of deference. [54] This case illustrates the problem.

The application judge arrived at her conclusions on the impact of the impugnedlaws on s. 7 security interests on the basis of the personal evidence of the applicants, the evidence of affiants and experts, anddocumentary evidence in the form of studies, reports of expert panels and Parliamentary records. The Court of Appeal conceded that itmust accord deference to her findings of adjudicative facts and the credibility of affiants and experts, but said it owes no deference tofindings on social and legislative facts.

The task of applying different standards of review when the evidence is intertwined would bedaunting. [55] It is suggested that no deference is required on social and legislative facts because appellate courts are in as good aposition to evaluate such evidence as trial judges. If this were so, adjudicative facts presented only in affidavit form would similarly beowed less deference. Yet this Court has been clear that, absent express statutory instruction, there is no middling standard of review forfindings of fact (H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401).

Furthermore, this view does not meet theconcerns of duplication of effort and the intertwining of such evidence with other kinds of evidence. Nor does it address the point thatthe appellate task is not to review evidence globally, but rather to review the conclusions the first instance judge has drawn from theevidence. [56] For these reasons, I am of the view that a no-deference standard of appellate review for social and legislative factsshould be rejected. The standard of review for findings of fact — whether adjudicative, social, or legislative — remains palpable andoverriding error. B.

Section 7 Analysis [57] In the discussion that follows, I first consider whether the applicants have established that the impugned laws imposelimits on security of the person, thus engaging s. 7. I then examine the argument of the appellant Attorneys General that the laws do notcause the alleged harms. I go on to consider whether any limits on security of the person are in accordance with the principles offundamental justice.

(1) Is Security of the Person Engaged? [58]

Section 7 provides that the state cannot deny a person’s right to life, liberty or security of the person, except inaccordance with the principles of fundamental justice. At this stage, the question is whether the impugned laws negatively impact orlimit the applicants’ security of the person, thus bringing them within the ambit of, or engaging, s. 7 of the Charter.[†] [59] Here, the applicants argue that the prohibitions on bawdy-houses, living on the avails of prostitution, andcommunicating in public for the purposes of prostitution, heighten the risks they face in prostitution — itself a legal activity.

Theapplication judge found that the evidence supported this proposition and the Court of Appeal agreed. [60] For reasons set out below, I am of the same view. The prohibitions at issue do not merely impose conditions on howprostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in arisky — but legal — activity from taking steps to protect themselves from the risks. (

a) Sections 197 and 210: Keeping a Common Bawdy-House [61] 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 theseprovisions is broad. “Place” includes any defined space, even if unenclosed and used only temporarily (s. 197(1) of the Code; R. v.Pierce (1982), (ON CA), 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), (ON CA), 10 C.C.C. (2d) 311 (Ont. C.A.)). [62] 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 theprostitute goes out and meets the client at a designated location, such as the client’s home, are allowed.

Working on the street is alsopermitted, though the practice of street prostitution is significantly limited by the prohibition on communicating in public (s. 213(1)(c)). [63] The application judge found, on a balance of probabilities, that the safest form of prostitution is workingindependently from a fixed location (para. 300). She concluded that indoor work is far less dangerous than street prostitution — afinding that the evidence amply supports.

She also concluded that out-call work is not as safe as in-call work, particularly under thecurrent regime where prostitutes are precluded by virtue of the living on the avails provision from hiring a driver or security guard. Sincethe bawdy-house provision makes the safety-enhancing method of in-call prostitution illegal, the application judge concluded that thebawdy-house prohibition materially increased the risk prostitutes face under the present regime.

I agree. [64] First, the prohibition prevents prostitutes from working in a fixed indoor location, which would be safer thanworking on the streets or meeting clients at different locations, especially given the current prohibition on hiring drivers or securityguards. 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 interfereswith provision of health checks and preventive health measures.

Finally — a point developed in argument before us — the bawdy-houseprohibition 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 growingthat a serial killer was prowling the streets — fears which materialized in the notorious Robert Pickton. Street prostitutes — who theapplication 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 eventuallystayed — 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 maybe critical.

For these people, the ability to work in brothels or hire security, even if those activities were lawful, may be illusory. [65] I conclude, therefore, that the bawdy-house provision negatively impacts the security of the person of prostitutes andengages s. 7 of the Charter. (b) Section 212(1)(j): Living on the Avails of Prostitution [66] Section 212(1)(

j) criminalizes living on the avails of prostitution of another person, wholly or in part. Whiletargeting parasitic relationships (R. v. Downey, (SCC), [1992] 2 S.C.R. 10), it has a broad reach. As interpreted by thecourts, it makes it a crime for anyone to supply a service to a prostitute, because she is a prostitute (R. v. Grilo (1991), (ON CA), 2 O.R. (3d) 514 (C.A.); R. v. Barrow (2001), (ON CA), 54 O.R. (3d) 417 (C.A.)). In effect, it prevents aprostitute from hiring bodyguards, drivers and receptionists.

The application judge found that by denying prostitutes access to thesesecurity-enhancing safeguards, the law prevented them from taking steps to reduce the risks they face and negatively impacted theirsecurity of the person (para. 361). As such, she found that the law engages s. 7 of the Charter. [67] The evidence amply supports the judge’s conclusion. Hiring drivers, receptionists, and bodyguards, could increaseprostitutes’ 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 [68] Section 213(1)(

c) prohibits communicating or attempting to communicate for the purpose of engaging in prostitutionor obtaining the sexual services of a prostitute, in a public place or a place open to public view. The provision extends to conduct short ofverbal communication by prohibiting stopping or attempting to stop any person for those purposes (R. v. Head (1987), (BC CA), 59 C.R. (3d) 80 (B.C.C.A.)). [69] 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 orpropensity 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. [70] The application judge also found that the communicating law has had the effect of displacing prostitutes fromfamiliar areas, where they may be supported by friends and regular customers, to more isolated areas, thereby making them morevulnerable (paras. 331 and 502). [71] On the evidence accepted by the application judge, the law prohibits communication that would allow streetprostitutes to increase their safety.

By prohibiting communicating in public for the purpose of prostitution, the law prevents prostitutesfrom screening clients and setting terms for the use of condoms or safe houses. In these ways, it significantly increases the risks theyface. [72] I conclude that the evidence supports the application judge’s conclusion that s. 213(1)(

c) impacts security of theperson and engages s. 7.

(2) A Closer Look at Causation [73] For the reasons discussed above, the application judge concluded — and I agree — that the impugned lawsnegatively 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 arguethat the courts below erroneously measured causation by an attenuated standard. Second, they argue that it is the choice of the applicantsto 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 [74] Three possible standards for causation are raised for our consideration: (1) “sufficient causal connection”, adoptedby the application judge (paras. 287-88); (2) a general “impact” approach, adopted by the Court of Appeal (paras. 108-9); and (3) “activeand foreseeable” and “direct” causal connection, urged by the appellant Attorneys General (A.G. of Canada factum, at paras. 64-68; A.G.of Ontario factum, at paras. 12-17). [75] I conclude that the “sufficient causal connection” standard should prevail.

This is a flexible standard, which allowsthe circumstances of each particular case to be taken into account. Adopted in Blencoe v. British Columbia (Human Rights Commission),2000 SCC 44, [2000] 2 S.C.R. 307, and applied in a number of subsequent cases (see, e.g., United States v. Burns, 2001 SCC 7, [2001] 1S.C.R. 283; Suresh v.

Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3), it posits the need for “asufficient 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)). [76] A sufficient causal connection standard does not require that the impugned government action or law be the only orthe dominant cause of the prejudice suffered by the claimant, and is satisfied by a reasonable inference, drawn on a balance ofprobabilities (Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 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 sufficientcausal connection standard is consistent with the substance of the standard that the Court of Appeal applied in this case.

While I do notagree with the Court of Appeal that causation is not the appropriate lens for examining whether legislation — as opposed to the conductof state actors — engages s. 7 security interests, its “practical and pragmatic” inquiry (para. 108) tracks the process followed in casessuch as Blencoe and Khadr. [77] The Attorney General of Canada argues for a higher standard. The prejudice to the claimant’s security interest, heargues, must be active, foreseeable, and a “necessary link” (factum, at paras. 62 and 65). He relies on this Court’s statement inRodriguez v.

British Columbia (Attorney General), (SCC), [1993] 3 S.C.R. 519 (cited by way of contrast in Blencoe, atpara. 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 forthe deprivation and where the deprivation is an entirely foreseeable consequence of Canada’s participation, the government does notavoid the guarantee of fundamental justice”.

These statements establish that a causal connection is made out when the state action is aforeseeable and necessary cause of the prejudice. They do not, however, establish that this is the only way a causal connection engagings. 7 of the Charter can be demonstrated. [78] Finally, from a practical perspective, a sufficient causal connection represents a fair and workable threshold forengaging 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 isnot in accordance with the principles of fundamental justice. Although mere speculation will not suffice to establish causation, to set thebar 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? [79] 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 thisactivity. They say that choice — and not the law — is the real cause of their injury. [80] The Attorneys General contend that Parliament is entitled to regulate prostitution as it sees fit. Anyone who choosesto sell sex for money must accept these conditions.

If the conditions imposed by the law prejudice their security, it is their choice toengage in the activity, not the law, that is the cause. [81] What the applicants seek, the Attorneys General assert, is a constitutional right to engage in risky commercialactivities.

Thus the Attorney General of Ontario describes the s. 7 claim in this case as a “veiled assertion of a positive right to vocationalsafety” (factum, at para. 25). [82] The Attorneys General rely on this Court’s decision in Malmo-Levine, which upheld the constitutionality of theprohibition of possession of marijuana on the basis that the recreational use of marijuana was a “lifestyle choice” and that lifestylechoices were not constitutionally protected (para. 185). [83] The Attorneys General buttress this argument by asserting that if this Court accepts that these laws can be viewed ascausing prejudice to the applicants’ security, then many other laws that leave open the choice to engage in risky activities by onlypartially or indirectly regulating those activities will be rendered unconstitutional. [84] Finally, in a variant on the argument that the impugned laws are not the cause of the applicants’ alleged loss ofsecurity, the Attorneys General argue that the source of the harm is third parties — the johns who use and abuse prostitutes and thepimps who exploit them. [85] For the following reasons, I cannot accept the argument that it is not the law, but rather prostitutes’ choice and thirdparties, that cause the risks complained of in this case. [86] First, while some prostitutes may fit the description of persons who freely choose (or at one time chose) to engage inthe risky economic activity of prostitution, many prostitutes have no meaningful choice but to do so.

Ms. Bedford herself stated that sheinitially 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 tosell their bodies for money.

Realistically, while they may retain some minimal power of choice — what the Attorney General of Canadacalled “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). [87] Second, even accepting that there are those who freely choose to engage in prostitution, it must be remembered thatprostitution — the exchange of sex for money — is not illegal. The causal question is whether the impugned laws make this lawfulactivity more dangerous. An analogy could be drawn to a law preventing a cyclist from wearing a helmet.

That the cyclist chooses toride her bike does not diminish the causal role of the law in making that activity riskier. The challenged laws relating to prostitution areno different. [88] Nor is it accurate to say that the claim in this case is a veiled assertion of a positive right to vocational safety. Theapplicants are not asking the government to put into place measures making prostitution safe.

Rather, they are asking this Court to strikedown legislative provisions that aggravate the risk of disease, violence and death. [89] It makes no difference that the conduct of pimps and johns is the immediate source of the harms suffered byprostitutes. The impugned laws deprive people engaged in a risky, but legal, activity of the means to protect themselves against thoserisks. The violence of a john does not diminish the role of the state in making a prostitute more vulnerable to that violence.

[90] The government’s call for deference in addressing the problems associated with prostitution has no role at this stageof the analysis. Calls for deference cannot insulate legislation that creates serious harmful effects from the charge that they negativelyimpact security of the person under s. 7 of the Charter.

The question of deference arises under the principles of fundamental justice, notat the early stage of considering whether a person’s life, liberty, or security of the person is infringed. [91] Finally, recognizing that laws with serious harmful effects may engage security of the person does not mean that ahost 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.), (SCC), [1999] 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. 7is found to be engaged, the applicant must then show that the deprivation of security is not in accordance with the principles offundamental justice. [92] For all these reasons, I reject the arguments of the Attorneys General that the cause of the harm is not the impugnedlaws, 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 [93] I have concluded that the impugned laws deprive prostitutes of security of the person, engaging s. 7. The remainingstep in the s. 7 analysis is to determine whether this deprivation is in accordance with the principles of fundamental justice. If so, s. 7 isnot breached. [94] The principles of fundamental justice set out the minimum requirements that a law that negatively impacts on aperson’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 s

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