IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO) - and -

Transcription

1 BETWEEN: IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO) File Number: ATTORNEY GENERAL OF CANADA Appellant (Respondent on Cross-Appeal) - and - TERRI JEAN BEDFORD, AMY LEBOVITCH and VALERIE SCOTT Respondents (Appellants on Cross-Appeal) - and - PIVOT LEGAL SOCIETY, DOWNTOWN EASTSIDE SEX WORKERS UNITED AGAINST VIOLENCE and PACE SOCIETY, THE SECRETARIAT OF THE JOINT UNITED NATIONS PROGRAMME ON HIV/AIDS, THE BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION, THE EVANGELICAL FELLOWSHIP OF CANADA, THE CANADIAN HIV/AIDS LEGAL NETWORK, BRITISH COLUMBIA CENTRE FOR EXCELLENCE IN HIV/AIDS and HIV & AIDS LEGAL CLINIC ONTARIO, THE 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 and VANCOUVER RAPE RELIEF SOCIETY, CHRISTIAN LEGAL FELLOWSHIP, CATHOLIC CIVIL RIGHTS LEAGUE and REAL WOMEN OF CANADA, THE DAVID ASPER CENTRE FOR CONSTITUTIONAL RIGHTS, THE INSTITUT SIMONE DE BEAUVOIR, THE AWCEP ASIAN WOMEN FOR EQUALITY SOCIETY, OPERATING AS ASIAN WOMEN COALITION ENDING PROSTITUTION and THE ABORIGINAL LEGAL SERVICES OF TORONTO INC. Interveners

2 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 - PIVOT LEGAL SOCIETY, DOWNTOWN EASTSIDE SEX WORKERS UNITED AGAINST VIOLENCE and PACE SOCIETY, THE SECRETARIAT OF THE JOINT UNITED NATIONS PROGRAMME ON HIV/AIDS, THE BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION, THE EVANGELICAL FELLOWSHIP OF CANADA, THE CANADIAN HIV/AIDS LEGAL NETWORK, BRITISH COLUMBIA CENTRE FOR EXCELLENCE IN HIV/AIDS and HIV & AIDS LEGAL CLINIC ONTARIO, THE 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 and VANCOUVER RAPE RELIEF SOCIETY, CHRISTIAN LEGAL FELLOWSHIP, CATHOLIC CIVIL RIGHTS LEAGUE and REAL WOMEN OF CANADA, THE DAVID ASPER CENTRE FOR CONSTITUTIONAL RIGHTS, THE INSTITUT SIMONE DE BEAUVOIR, THE AWCEP ASIAN WOMEN FOR EQUALITY SOCIETY, OPERATING AS ASIAN WOMEN COALITION ENDING PROSTITUTION and THE ABORIGINAL LEGAL SERVICES OF TORONTO INC. Interveners FACTUM OF THE INTERVENERS, CHRISTIAN LEGAL FELLOWSHIP, CATHOLIC CIVIL RIGHTS LEAGUE and REAL WOMEN OF CANADA

3 BENNETT JONES LLP 3400 One First Canadian Place P.O. Box 130 Toronto, Ontario M4X 1A4 Robert W. Staley Ranjan K. Agarwal Amanda McLachlan Telephone: (416) Facsimile: (416) Lawyers for the interveners BENNETT JONES LLP World Exchange Plaza O Connor Street Ottawa, Ontario K1P 1A4 Sheridan Scott Telephone: (613) Facsimile: (613) scotts@bennettjones.com Agent to the interveners ORIGINAL TO: THE REGISTRAR Supreme Court of Canada COPIES TO: DEPARTMENT OF JUSTICE Ontario Regional Office The Exchange Tower 130 King Street West Suite 3400 Toronto, Ontario M5X 1K6 Michael H. Morris Telephone: (416) Facsimile: (416) Michael.morris@justice.gc.ca Lawyers for the Appellant/Respondent on Cross-Appeal, Attorney General of Canada DEPARTMENT OF JUSTICE Bank of Canada Building - East Tower 234 Wellington Street, Room 1212 Ottawa, Ontario K1A 0H8 Christopher M. Rupar Telephone: (613) Facsimile: (416) christopher.rupar@justice.gc.ca Agents for the Appellant/Respondent on Cross-Appeal, Attorney General of Canada

4 MINISTRY OF THE ATTORNEY GENERAL 10 th Floor 720 Bay Street Toronto, Ontario M5G 2K1 Jamie Klukach Christine E. Bartlett-Hughes Megan Stephens Telephone: (416) Facsimile: (416) Lawyers for the Appellant/Respondent on Cross-Appeal, Attorney General of Ontario ALAN N. YOUNG Barrister & Solicitor Osgoode Hall Law School 4700 Keele Street, Room 428 Toronto, Ontario M3J 1P3 Telephone: (416) Facsimile: (416) Lawyers for the Respondent/Appellant on Cross-Appeal, Terri Jean Bedford BURKE-ROBERTSON 441 MacLaren Street Suite 200 Ottawa, Ontario K2P 2H3 Robert E. Houston, Q.C. Telephone: (613) Facsimile: (613) Agents for the Appellant/Respondent on Cross-Appeal, Attorney General of Ontario SACK GOLDBLATT MITCHELL LLP Metcalfe Street Ottawa, Ontario K1P 5L4 Fiona Campbell Telephone: (613) Ext: 2451 Facsimile: (613) Agents for the Respondent/Appellant on Cross-Appeal, Terri Jean Bedford

5 MARZEL LAW 265 Rimrock Road, Suite 200 Toronto, Ontario M3J 3C6 Yaron Marzel Stacey Nichols Telephone: (416) Facsimile: (416) Lawyers for the Respondent/Appellant on Cross-Appeal, Amy Lebovitvh SACK GOLDBLATT MITCHELL LLP Dundas St. W. Toronto, Ontario M5G 2G8 Marlys Edwardh Daniel Sheppard Telephone: (416) Facsimile: (416) Lawyers for the Respondent/Appellant on Cross-Appeal, Valerie Scott SACK GOLDBLATT MITCHELL LLP Metcalfe Street Ottawa, Ontario K1P 5L4 Fiona Campbell Telephone: (613) Ext: 2451 Facsimile: (613) Agents for the Respondent/Appellant on Cross-Appeal, Amy Lebovitvh SACK GOLDBLATT MITCHELL LLP Metcalfe Street Ottawa, Ontario K1P 5L4 Fiona Campbell Telephone: (613) Ext: 2451 Facsimile: (613) Agents for the Respondent/Appellant on Cross-Appeal, Valerie Scott

6 PROCUREUR GÉNÉRAL DU QUÉBEC 1200, Route de l'église, 2ème étage Québec, Quebec G1V 4M1 Sylvain Leboeuf Julie Dassylva Telephone: (418) Ext: Facsimile: (418) Lawyers for the Intervener, Attorney General of Quebec NOËL & ASSOCIÉS 111, rue Champlain Gatineau, Quebec J8X 3R1 Pierre Landry Telephone: (819) Facsimile: (819) Agents for the Intervener, Attorney General of Quebec PIVOT LEGAL LLP 121 Heatley Avenue Vancouver, BC V6A 3E9 Katrina Pacey Telephone: (604) Ext: 103 Facsimile: (604) Lawyers for the Interveners, Pivot Legal Society, Downtown Eastside Sex Workers United Against Violence and PACE Society MCMILLAN LLP 50 O'Connor Street Suite 300 Ottawa, ON K1P 6L2 Jeffrey Beedell Anne Glaude Jonathan O'Hara Telephone: (613) Ext: 122 Facsimile: (613) Agents for the Interveners, Pivot Legal Society, Downtown Eastside Sex Workers United Against Violence and PACE Society

7 MCCARTHY TETRAULT LLP Pacific Centre P.O. Box Suite Dunsmuir Street Vancouver, BC V7Y 1K2 Michael Feder Tammy Shoranick Telephone: (604) Facsimile: (604) Lawyers for the Intervener, Secretariat of the Joint United Nations Programme on HIV/AIDS OSLER, HOSKIN & HARCOURT LLP 340 Albert Street Suite 1900 Ottawa, Ontario K1R 7Y6 Patricia J. Wilson Telephone: (613) Facsimile: (613) Agents for the Intervener, Secretariat of the Joint United Nations Programme on HIV/AIDS HUNTER LITIGATION CHAMBERS Suite West Georgia Street Vancouver, British Columbia V6E 4H1 MICHAEL J. SOBKIN 90 blvd. de Lucerne Unit #2 Gatineau, QC J9H 7K8 Brent Olthuis Megan Vis-Dunbar Telephone: (604) Facsimile: (604) Lawyers for the Intervener, British Columbia Civil Liberties Association Telephone: (819) Facsimile: (819) Agent for the Intervener, British Columbia Civil Liberties Association

8 EVANGELICAL FELLOWSHIP OF CANADA 130 Albert Street Suite 1810 Ottawa, ON K1P 5G4 Georgialee A. Lang Donald Hutchison Telephone: (613) Facsimile: (613) Lawyers for the Intervener, Evangelical Fellowship of Canada SUPREME ADVOCACY LLP 397 Gladstone Avenue Suite 100 Ottawa, ON K2P 0Y9 Marie-France Major Eugene Meehan, Q.C. Telephone: (613) Ext: 101 Facsimile: (613) Agents for the Intervener, Evangelical Fellowship of Canada COOPER & SANDLER University Avenue Toronto, ON M5G 1Y8 Jonathan A. Shime Megan Schwartzentruber Telephone: (416) Facsimile: (416) Lawyers for the Interveners, Canadian HIV/AIDS Legal Network, British Columbia Centre for Excellence in HIV/AIDS and HIV & AIDS Legal Clinic Ontario SUPREME ADVOCACY LLP 397 Gladstone Avenue Suite 100 Ottawa, ON K2P 0Y9 Marie-France Major Telephone: (613) Facsimile: (613) Agents for the Interveners, Canadian HIV/AIDS Legal Network, British Columbia Centre for Excellence in HIV/AIDS and HIV & AIDS Legal Clinic Ontario

9 FARADAY LAW 860 Manning Avenue Toronto, Ontario M6G 2W8 Fay Faraday Janine Benedet Telephone: (416) Facsimile: (647) Lawyers for the Intervener, Canadian Association of Sexual Assault Centres BORDEN LADNER GERVAIS LLP World Exchange Plaza 100 Queen Street, suite 1100 Ottawa, ON K1P 1J9 Nadia Effendi Telephone: (613) Facsimile: (613) Agents for the Intervener, Canadian Association of Sexual Assault Centres FARADAY LAW 860 Manning Avenue Toronto, Ontario M6G 2W8 Fay Faraday Janine Benedet Telephone: (416) Facsimile: (647) Lawyers for the Interveners, Native Women s Association of Canada, Canadian Association of Elizabeth Fry Societies, Action ontarienne contre la volence faite aux femmes, Concertation des lutes contre l exploitation sexuelle BORDEN LADNER GERVAIS LLP World Exchange Plaza 100 Queen Street, suite 1100 Ottawa, ON K1P 1J9 Nadia Effendi Telephone: (613) Facsimile: (613) neffendi@blg.com Agents for the Interveners, Native Women s Association of Canada, Canadian Association of Elizabeth Fry Societies, Action ontarienne contre la volence faite aux femmes, Concertation des lutes contre l exploitation sexuelle

10 FARADAY LAW 860 Manning Avenue Toronto, Ontario M6G 2W8 Fay Faraday Janine Benedet Telephone: (416) Facsimile: (647) Lawyers for the Interveners, Regroupment québéquois des centre d aide et de lute contre les aggressions à caractère sexuel and Vancouver Rape Relief Society BORDEN LADNER GERVAIS LLP World Exchange Plaza 100 Queen Street, suite 1100 Ottawa, ON K1P 1J9 Nadia Effendi Telephone: (613) Facsimile: (613) neffendi@blg.com Agents for the Interveners, Regroupment québéquois des centre d aide et de lute contre les aggressions à caractère sexuel and Vancouver Rape Relief Society ARVAY FINLAY BARRISTERS Burrard Street Vancouver, British Columbia V6C 2G8 Joseph Arvay Cheryl Milne Telephone: (604) Facsimile: (604) jarvay@arvayfinlay.com Lawyers for the Intervener, David Asper Centre for Constitutional Rights NORTON ROSE CANADA LLP 45 O'Connor Street Ottawa, ON K1P 1A4 Martha A. Healey Telephone: (613) Facsimile: (613) martha.healey@nortonrose.com Agents for the Intervener, David Asper Centre for Constitutional Rights

11 DESROSIERS, JONCAS, MASSICOTTE 480, boul. St-Laurent, B-503 Montréal, QC H2Y 3Y7 Walid Hijazi Telephone: (514) Facsimile: (514) Lawyers for the Intervener, Institut Simone de Beauvoir FOY ALLISON LAW GROUP Marine Drive West Vancouver, BC V7V 1L2 Gwendoline Allison Telephone: (604) Facsimile: (604) Lawyers for the Intervener, AWCEP Asian Women for Equality Society, operating as Asian Women Coalition Ending Prostitution DEVEAU, BOURGEOIS, GAGNE, HEBERT & ASSOCIES, S.E.N.C.R.L. 867, Boul, St. Rene Ouest, Gatineau, QC J8T 7X6 Frédérick Langlois Telephone: (819) Facsimile: (819) Agents for the Intervener, Institut Simone de Beauvoir GOWLING LAFLEUR HENDERSON LLP 160 Elgin Street Suite 2600 Ottawa, ON K1P 1C3 D. Lynne Watt Telephone: (613) Facsimile: (613) Agents for the Intervener, AWCEP Asian Women for Equality Society, operating as Asian Women Coalition Ending Prostitution ABORIGINAL LEGAL SERVICES OF TORONTO INC. 415 Yonge Street Suite 803 Toronto, ON M5B 2E7 Christa Big Canoe Emily Hill Telephone: (416) Ext: 225 Facsimile: (416) Lawyers for the Intervener, Aboriginal Legal Services of Toronto Inc.

12 - i - TABLE OF CONTENTS PART I: OVERVIEW AND STATEMENT OF FACTS... 1 PART II: STATEMENT OF POSITION... 2 PART III: STATEMENT OF ARGUMENT... 2 A. Moral Objectives in Constitutional Law... 2 B. The Impugned Laws Moral Purpose Common Bawdy-House Living on the Avails... 6 C. Principles of Fundamental Justice Overbroad Grossly Disproportionate... 9 PART IV: SUBMISSIONS CONCERNING COSTS PART V: ORDER REQUESTED... 10

13 - 1 - PART I: OVERVIEW AND STATEMENT OF FACTS 1. The Court of Appeal s decision in this case directly challenges Parliament s ability to legislate in areas that reflect a shared belief that certain acts are immoral. 2. Parliament has held the view that prostitution is immoral since Confederation. This moral view is not based on mere prudish sensibilities nor is it legal moralism: it is a common and fundamental social value rooted in other constitutional values such as promoting gender equality, preventing the exploitation of vulnerable persons and protecting human dignity. 3. Prostitution fundamentally demeans the dignity of the prostitute and the client. It perpetuates a fundamentally offensive and abusive gender imbalance and it exposes prostitutes to physical and psychological harm. It degrades the community. In short, Canadians have good reason to abhor prostitution. They have every justification to discourage people from engaging in prostitution, either as prostitutes, johns, pimps and madams or as service-providers. 4. Though the Court of Appeal for Ontario correctly found that morality may be a valid constitutional objective, it erred in finding sections 210 and 212(1)(j) unconstitutional given their moral purpose: (a) (b) (c) The purpose of the impugned laws is to protect public morality, which is consistent with values underlying the Canadian Charter of Rights and Freedoms 1, including gender equality, suppressing exploitation and human dignity. The impugned laws are not grossly disproportionate or overbroad. To the extent the laws criminalize people providing services to prostitutes, there is nothing inconsistent between the laws and the purpose of protecting public morality. The impugned laws do not infringe the respondents security of the person rights. Prostitutes have the choice to stop being prostitutes. If prostitutes choose unsafe conditions or to break the law, it is their choice that exacerbates the risk of harm, not the impugned laws. Even if the impugned measures may be found to infringe an individual s choice to engage in prostitution, such an infringement is justified. By criminalizing conduct a democratic society at large views to be immoral and 1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

14 - 2 - harmful, lawmakers continue to affirm that the protection of core social values should be afforded greater weight than individual moral choices. 5. Christian Legal Fellowship, Catholic Civil Rights League and REAL Women of Canada (the Interveners ) accept the facts as stated in the Attorney General of Canada s memorandum of law and argument. PART II: STATEMENT OF POSITION 6. Sections 210 (bawdy-house) and 212(1)(j) (living on the avails) of the Criminal Code do not infringe section 7 of the Charter. The legislative purpose of these provisions is to target people who profit from vice and otherwise immoral conduct, which is consistent with Charter values. To the extent that these provisions infringe the respondents liberty or security of the person rights, such infringement is not grossly disproportionate or overbroad considering the provisions moral purpose. PART III: STATEMENT OF ARGUMENT A. Moral Objectives in Constitutional Law 7. There is no dispute that lawmakers have the right to legislate on the basis of a fundamental conception of morality for the purpose of safeguarding the values that are integral to a free and democratic society The mere fact that a law is grounded in morality does not automatically render it illegitimate. 3 Morality is a valid criminal law purpose. Moral disapprobation is itself sufficient to ground criminal law when it addresses issues that are integral to society The only limit on this right is that Parliament cannot impose a standard of public and sexual morality to reflect certain social conventions. 5 In other words, Parliament cannot legislate on the basis of morality alone. But if the legislation is grounded in core social values, morality is a legitimate legislative purpose. 10. This Court has repeatedly held that the association of sexual acts with a commercial 2 R v Butler, [1992] 1 SCR 452 (available on QL) 80 [Butler], Book of Authorities of the Appellant Attorney General of Ontario ( AGO BOA ), Tab Ibid Reference re Assisted Human Reproduction Act, 2010 SCC [RAHRA], Interveners Book of Authorities ( Interveners BOA ), Tab 1. 5 Butler, supra note 2 at 492, Interveners BOA, Tab 2.

15 - 3 - transaction is contrary to a number of values of the Canadian community, such as equality, liberty and human dignity The purpose of the bawdy-house and avails provisions is the strong moral disapproval of brothels and living on someone else s sex-work. This fundamental conception of morality has the purpose of promoting of gender equality, preventing the exploitation of vulnerable persons and protecting human dignity. 12. This purpose supports the overall legislative intent underlying Canada s prostitution legislation, which is to discourage or eradicate prostitution itself because it is immoral and harmful to individuals and to society. 13. Parliament does not need hard evidence to support this purpose: it need only have a reasonable basis to expect that its legislation will address a moral concern of fundamental importance In determining Parliament s objective, the courts must look at the intention of the elected lawmakers when the impugned provision was enacted or amended. The courts cannot assign purposes or invent new ones. 8 B. The Impugned Laws Moral Purpose 15. Canada s prostitution legislation dates to before Confederation. This legislation has prohibited, at various times, virtually all prostitution-related activity, including brothels, living on the avails of prostitution and the status of being a prostitute. These provisions criminalized prostitutes (both inside and outside sex-workers), johns, brothel owners and landlords and anyone else living on the prostitute s sex-work Canada s earliest prostitution legislation was transplanted to Canada from England. 10 These laws criminalized common bawdy houses on the basis that brothels tended to endanger public peace and corrupt public morality R v Labaye, SCR , Interveners BOA, Tab 3; R v Kouri, [2005] 3 SCR , Interveners BOA, Tab 4. See also R v Mara, [1997] 2 SCR , AGO BOA, Tab RAHRA, supra note 4, Interveners BOA, Tab 1. 8 R v Zundel, [1992] 2 SCR 731 (available on QL) 45, AGO BOA, Tab Constance B Backhouse, Nineteenth-Century Canadian Prostitution Law Reflection of a Discriminatory Society (1985) 18:36 Social History 387 at [Backhouse], Interveners BOA, Tab See e.g. An Act for the further introduction of the criminal law of England into this province, 40 Geo III (1800), c 1 (Upper Canada), Interveners BOA, Tab 6.

16 Prior to Confederation, the provinces passed various legislation dealing with brothels and prostitution. 12 Public morality continued to be the legislation s main purpose. For example, Nova Scotia s legislation, which prohibited brothels, was expressly entitled Of Offences against Public Morals After Confederation, Canada enacted its own criminal laws, which criminalized common bawdy houses, living on the avails of prostitution and being a prostitute Following the enactment of the first Criminal Code in 1892, Parliament formally codified protections for women and girls from immoral sexual activity, exploitation and vice. 15 Title IV, Offences against Religion, Morals and Public Convenience, contained provisions aimed at protecting against illicit sexual activity and general offences against morality The legislation was enacted to reflect a concern by lawmakers and society that women required protection from immoral sexual activity generally and prostitution specifically The only activity that has not been criminalized in Canada is the actual sale of sex for money. There is no evidence as to why successive Parliaments have refused to do so. In the Prostitution Reference, Justice Lamer, with reference to the recent history of prostitution legislation, concluded that the totality of these prohibitions is aiming at eradicating the practice of prostitution The Interveners agree with the Attorneys General that the purpose of the impugned provisions should be determined by reference to the objective of the legislative scheme as a whole. The Interveners submit that, based on the purposes of the individual provisions and the scheme as a whole, the overriding objective is to reflect Canadians strong moral disapproval of 11 Sir Wm Oldnall Russell Knt, A Treatise on Crimes and Misdemeanors 5th ed (London: Stevens and Sons, 1877) vol 1, b 2 at 427, Interveners BOA, Tab 7; William Hawkins, A Treatise on Pleas of the Crown or A System of the Principal Matters relating to that Subject, digefted under their Proper Heads 3d ed (London: Professional Books) b 1, ch 74 at , AGO BOA, Tab Backhouse, supra note 9 at , Interveners BOA, Tab RSNS 1864, c 1, Interveners BOA, Tab An Act respecting Vagrants, 32 & 33 Vict (1869), c 28, s 1, Affidavit of Lucie Angers, sworn March 20, 2008 ( Angers Affidavit ), Exhibit 3, Joint Application Record ( JAR ), Volume 64, Tab 127, page 18,771-18, Angers Affidavit, page 5, paras , JAR, Volume 64, Tab 127, pages 18,744-18,745; Affidavit of Eleanor Maticka- Tyndale, sworn March 29, 2007 ( Maticka-Tyndale Affidavit ), Exhibit B, JAR, Volume 12, Tab 45, page 3, Angers Affidavit, Exhibit 9, JAR, Volume 64, Tab 127, pages 18,801-18, Angers Affidavit, page 2, 5-6, JAR, Volume 64, page 18,741; Angers Affidavit, Exhibit 8, JAR, Volume 64, Tab 127, page 18,790; Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution ( Fraser Committee Report ), Volume 2, JAR, Volume 71, page 20,921; Debates of the Senate (18 May 1909), JAR, Volume 66, page 19, Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 SCR 1123 at 1191 [Prostitution Reference], Book of Authorities of the Respondents ( Respondents BOA ), Tab 47.

17 - 5 - prostitution itself, with a view to promoting gender equality, preventing the exploitation of vulnerable persons and protecting human dignity. 1. Common Bawdy-House 23. Section 210(1) makes it an indictable offence to keep a common bawdy-house. 19 A common bawdy-house is defined as 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. 20 Section 210(2) makes it a summary offence to be an inmate of a common bawdy-house, to be found without lawful excuse in a common bawdy-house, or to permit a place to be let or used for the purposes of a common bawdy-house Between 1886 and 1953, common bawdy-houses were associated with vagrancy and immorality. They were prohibited as a matter of Public Morals and Public Convenience In Rockert, Justice Estey adopted the view that keeping a brothel was viewed as a public nuisance because it endangered the public peace and corrupted men and women by exposing them to lewdness. The maintenance of a brothel not only disturbed the neighborhood but it also injured public morals, health, convenience and safety The Alberta and Yukon courts reflected this view, holding that the purpose of the prohibition on common bawdy-houses is obviously to check immorality and to prohibit acts that are dangerous to the morals of the community Both the Application Judge and the Court of Appeal found that one of the original purposes of the prohibition on common bawdy-houses was to protect public morality. 25 But both courts concluded that the provision s moral purpose was no longer legitimate. They held that the 19 Criminal Code, RSC 1985, c C-46, s 210(1) [Criminal Code]. 20 Ibid, s 197(1). 21 Ibid, s 210(2). 22 An Act respecting Offences against Public Morals and Public Convenience, RSC 1886, c 157, JAR, Volume 65, Tab 139, page 19,061-19, R v Rockert, [1978] 2 SCR 704 (available on QL) at 7-8 [Rockert], AGO BOA, Tab Ibid. See also R v Jones (1921), 62 DLR 413 at 414, Respondents BOA, Tab 24; R v Mercier (1908), 13 CCC 475 at 485, Respondents BOA, Tab Bedford v Canada (AG), 2010 ONSC 4264 ( Bedford (Sup Ct) ) Appellants Record, Volume II, Tab 3, page 65; Bedford v Canada (AG), 2010 ONCA 814 ( Bedford (OCA) ) 189, 192, Appellants Record, Volume II, Tab 7, page 76.

18 - 6 - purpose of the bawdy-house provision now is combating neighborhood disruption or disorder and safeguarding public health and safety Neither court explained why this moral purpose was illegimate or did not accord with Charter values. The courts seem to conclude that Parliament was, in banning brothels, legislating dirt for dirt s sake as a reflection of 18 th or 19 th century social mores. Their conclusion seems to suggest that these social mores are inconsistent either with modern views or with the Charter. 29. This finding is too narrow. It fundamentally recasts the bawdy-house provision s objective, which violates the principle against shifting purpose. In doing so, the courts have stripped the provision of any grounding in morality. 30. The purpose of the bawdy-house provision is to reflect Parliament s moral disapproval of brothels because they exploit vulnerable persons and endanger public health and safety. This description of the provision s purpose properly gives deference to Parliament s intention. It also reflects a permissible shift in emphasis from corruption and public peace to exploitation and health and safety. 2. Living on the Avails 31. Section 212(1)(j) provides that every one who lives wholly or in part on the avails of prostitution of another person, is guilty of an indictable offence In 1890, the Criminal Code was amended to add the offence of procuring defilement of [a] girl, which is the predecessor to the modern avails provision. 28 Although the legislative history is silent on the purpose of the provision, it was placed in the Criminal Code under the heading Offences Against Public Morals and Convenience. This part of the Criminal Code also includes prohibitions on gross indecency and incest, two other provisions firmly rooted in morality In 1913, this provision was further amended to prohibit human trafficking and exploitation arising from prostitution. 30 This amendment made it an indictable offence for any 26 Ibid, Bedford (Sup Ct) 242, Appellants Record, Volume II, Tab 3, page 65; Ibid, Bedford (OCA) 192, Appellants Record, Volume II, Tab 7, page Criminal Code, supra note 19, s 212(1)(j). 28 An Act to further amend the Criminal Law, SC 1890, 53 Vict, c 37, s 9, JAR, Volume 65, Tab 140, page 19, Ibid, s 5, 8, JAR, Volume 65, Tab 140, page 19,068; R v Schmidt, [1948] OR 198 (CA) 36, rev d on other grounds [1948] SCR 333, Interveners BOA, Tab 9.

19 - 7 - male person to live wholly or in part on the earnings of prostitution. In introducing this amendment, the then-minister of Justice described the legislative purpose underlying this provision as follows: Section 9 deals with what is generally spoken of as the white slave traffic. The purpose of it is to make, in some respects, more severe and generally more easily enforcible [sic] the provisions of the law imposing punishment upon people who traffic in vice. They prescribe penalties for the keeping of bawdy houses, for the procuring of women for prostitution, and upon persons who seek to derive profit from the propagation of vice, more particularly by the prostitution of women The Minister of Justice s comments are noteworthy for two reasons. First, the reference to white slave traffic is a euphemism for prostitution and human trafficking. In the early 1900s, Europe, Russia and the United States of America enacted treaties or legislation to prohibit the white slave traffic, which itself was clearly rooted (as specifically stated in several of the treaties and laws) in a concern about the procuring of women or girls for immoral purposes Second, Minister Doherty referred on two occasions to punishing those who traffic in vice. Vice has only one meaning in the English language: grossly immoral conduct The Court of Appeal concluded that the avails provision is aimed at protecting vulnerable persons from being coerced, pressured or emotionally manipulated into prostitution. 34 Like the bawdy-house provision, the court s formulation of the provision s purpose makes no reference to the legislation s overriding moral objectives. 37. In fact, the purpose of the living on the avails provision is to reflect Parliament s moral disapproval of living on someone else s sex-work, which includes preventing exploitation of vulnerable persons and promoting human dignity. Again, this purpose both accurately reflects Parliament s intent and appropriately shifts the emphasis of the purpose from procuring to exploitation. 30 An Act to amend the Criminal Code, SC 1913, 2-3 Geo V, c 13, s 9, JAR, Volume 66, Tab 144, pages 19,346-19, Debates of the House of Commons (20 May 1913 to 6 June 1913), JAR, Volume 66, Tab 144A, page 19, International Agreement for the Suppression of the White Slave Traffic, 18 May 1904, 1 LNTS 84, art 1, Interveners BOA, Tab 10; White-Slave Traffic Act, ch 395, 36 Stat 825 (1910), Interveners BOA, Tab 11; International Convention for the Suppression of the White Slave Traffic, 4 May 1910 as amended by Protocol Amending the International Agreement for the Suppression of the White Slave Traffic, and Amending the International Convention for the Suppression of the White Slave Traffic, 4 May 1949, 98 UNTS 102, Interveners BOA, Tab The Concise Oxford Dictionary of Current English, 9th ed, sub verbo vice, Interveners BOA, Tab Bedford (OCA), supra note , Appellants Record, Volume II, Tab 7, page 97.

20 - 8 - C. Principles of Fundamental Justice 38. Any infringement by the impugned provisions on the respondents liberty or security of the person is justified given the laws moral objectives. 1. Overbroad 39. The doctrine of overbreadth requires that a law be no broader than necessary to accomplish its purpose The Court of Appeal erred in finding that the bawdy-house and avails provisions are overbroad. In its view, the laws create blanket prohibitions that are not connected to the legislation s purposes. So, for example, the court found that a single person operating out of her own home is unlikely to cause most of the public health or safety problems to which the legislation is directed and, as such, the bawdy-house provision is overbroad in that it captures both large institutions and single prostitutes. Similarly, a prostitute s driver, bodyguard, accountant or receptionist may all be liable under the avails provision even though none of them are exploiting the prostitute, making the avails provision overbroad. 41. If the purpose of the provisions is, more accurately, described as moral disapproval of brothels and living on someone else s sex-work and viewed as part of a broader regulatory framework aimed at discouraging or eradicating prostitution, the blanket prohibition on all bawdy-houses and living on the avails is constitutionally acceptable. 42. The Court of Appeal acknowledged that a blanket prohibition may not be overbroad if the legislation s purpose is the eradication of prostitution The same holds true if the legislation s purpose is to reflect society s moral disapproval. If keeping a common bawdy-house is immoral or socially wrong, it should not matter whether the brothel is a large institution or a single prostitute. If having an economic stake in a prostitute s earnings is immoral or socially wrong, it should not matter whether the person is a parasite or a benign service-provider. 35 R v Heywood, [1994] 3 SCR , AGO BOA, Tab Bedford (OCA), supra note , Appellants Record, Volume II, Tab 7, pages

21 Grossly Disproportionate 44. A law is only grossly disproportionate if the infringement on a person's liberty or security of the person so outweighs its legislative objective that the law is abhorrent to Canadians In this case, the Court of Appeal found that the legislative objectives of the bawdy-house and avails provisions were sufficiently important that the impact on prostitutes would have to be extreme to warrant a finding of gross disproportionality. 38 The Interveners submit that moral disapproval, which includes disapproval of the exploitation of others, is equally important to also require an extreme impact. 46. There is no dispute that the evidence of violence to prostitutes is shocking and would be so to most Canadians. But that is not the test. 47. The court must evaluate the legislation s effects by examining the extent to which the legislation creates or contributes to the infringement of the claimant s rights. Prostitutes have four choices: first, they do not have to be prostitutes at all; 39 second, they can practice prostitution in a manner that is allegedly safer for the prostitute (i.e., working alone indoors with regular customers and rarely advertising) 40 ; third, they can practice prostitution in a manner that involves risky activities; and fourth, they can break the law The first of the four choices avoids the alleged harm altogether. 42 The second of the four choices is allegedly a safer alternative (though there are harms to the community and society as a whole). Only the third and fourth choices engage section 7, but there was no evidence whatsoever that the impugned laws force prostitutes to make either choice. At its absolute 37 R v Malmo-Levine, [2003] 3 SCR , Interveners BOA, Tab Bedford (OCA), supra note , Appellants Record, Volume II, Tab 7, page As the Supreme Court held in the Prostitution Reference, section 7 does not include a right to exercise any chosen profession, including prostitution. See Prostitution Reference, supra note 18 at, per Lamer J, Book of Authorities of the Appellant, the Attorney General of Canada ( AGC BOA ), Tab Maticka-Tyndale Affidavit, 5-7, JAR, Volume 12, Tab 45, page The Application Judge made a finding that [w]orking independently from a fixed location (in call) appears to be the safest way for a prostitute to work in Canada Bedford (Supt Ct), supra note , Appellants Record, Volume II, Tab 3, page If the respondents were arguing, for example, that they really had no choice but to engage in the profession, it was their onus to prove that with evidence. See Victoria (City) v Adams, 2009 BCCA , Interveners BOA, Tab The Attorney General of Canada has filed a number of affidavits from former prostitutes that made the decision to leave prostitution. See generally Affidavit of Natasha Falle, sworn April 7, 2008, Appellants Record, Volume IV, Tab 39, page 9448; Affidavit of D.S. sworn April 9, 2008, Appellants Record, Volume V, Tab 42, page 9634; Affidavit of Dawn Hodgins sworn April 7, 2008, Appellants Record, Volume V, Tab 43, page 9658; Affidavit of T.D., sworn April 7, 2008, Appellants Record, Volume V, Tab 44, page 9678; Affidavit of J.S., sworn April 4, 2008, Appellants Record, Volume V, Tab 45, page 9689, Affidavit of H.C., sworn April 7, 2008, Appellants Record, Volume V, Tab 46, page 9708; Affidavit of L.B., sworn March 26, 2008, Appellants Record, Volume V, Tab 47, page 9719; Affidavit of K.C., sworn March 19, 2008, Appellants Record, Volume V, Tab 48, page 9727; Affidavit of P.M., sworn March 19, 2008, Appellants Record, Volume V, Tab 49, page 9742.

22 highest, the only effect of the impugned laws (beyond imprisonment for the communications and bawdy-house offences) is that prostitutes must choose between four courses of action, one of which is entirely risk-free (not being a prostitute), and another of which is apparently safer (working alone indoors with regular customers and rarely advertising). 49. It is only where the prostitute chooses to practice prostitution that she is exposed to the type of harm alleged in this case. PART IV: SUBMISSIONS CONCERNING COSTS 50. The Interveners do not seek their costs, and submits that no order for costs should be made against them. PART V: ORDER REQUESTED 51. Prostitution is a symptom of the victimization and subordination of women and of their economic disadvantage. 43 It violates our most fundamental values: gender equality, the suppression of exploitation and human dignity. For decades, Canadian lawmakers have sought to eradicate prostitution not only because of its harms but because it is morally wrong. The Court of Appeal s decision in this case incorrectly strips that history and that moral context from the impugned provisions, leading to the absurd result that brothels and pimping may be legalized notwithstanding our common disapprobation of prostitution itself. 52. The Interveners respectfully request an order granting these appeals. The Interveners request permission to present oral argument at the hearing of this appeal. ALL OF WHICH IS RESPECTFULLY SUBMITTED this 30 th day of May BENNETT JONES LLP 3400 One First Canadian Place P.O. Box 130 Toronto, Ontario M5X 1A4 Lawyers for the Interveners 43 Prostitution Reference, supra note 18 96, AGO BOA, Tab 63

23 PART VI TABLE OF AUTHORITIES Authorities Cited at: R v Butler, [1992] 1 SCR 452 7, 9 Reference re Assisted Human Reproduction Act, 2010 SCC 61 8, 13 R v Labaye, SCR R v Kouri, [2005] 3 SCR R v Mara, [1997] 2 SCR R v Zundel, [1992] 2 SCR Constance B Backhouse, Nineteenth-Century Canadian Prostitution Law Reflection of a Discriminatory Society (1985) 18:36 Social History 387 An Act for the further introduction of the criminal law of England into this province, 40 GEO III (1800), c 1 (Upper Canada) Sir Wm Oldnall Russell KNT, A Treatise on Crimes and Misdemeanors 5th ed (London: Stevens and Sons, 1877) vol 1, b2 William Hawkins, A Treatise on Pleas of the Crown or A System of the Principal Matters relating to that Subject, digefted under their Proper Heads 3d ed (London: Professional Books) v 1, ch Of Offences against Public Morals, RSNS 1864, c 1 17 Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 SCR , 47, 51 R v Rockert, [1978] 2 SCR , 26 R v Jones (1921), 62 DLR R v Mercier (1908), 13 CCC R v Schmidt, [1948] OR 198 (CA) 32 International Agreement for the Suppression of the White Slave Traffic, 18 May 1904, 1 LNTS 84, art 1 34 White-Slave Traffic Act, ch 395, 36 Stat 825 (1910) 34

24 International Convention for the Suppression of the White Slave Traffic, 4 May 1910 as amended by Protocol Amending the International Agreement for the Suppression of White Slave Traffic, and Amending the International Convention for the Suppression of the White Slave Traffic, 4 May 1949, 98 UNTS The Concise Oxford Dictionary of Current English, 9th ed, sub verdo vice 35 R v Heywood, [1994] 3 SCR R v Malmo-Levine, [2003] 3 SCR Victoria (City) v Adams, 2009 BCCA

25 PART VII STATUTES AND REGULATIONS 1) Canadian Charter of Rights and Freedoms, s 1, 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 2) Criminal Code, RSC 1985, c C-46, s. 210, 212(1)(j) Canadian Charter of Rights and Freedoms, s 1, 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 Rights and Freedoms in Canada 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. Legal Rights Life, Liberty and Security of the Person 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. Charte canadienne des droits et libertés, art. 1, 2 et 7, partie I de la Loi Constitutionelle de 1982, constituent l annexe B de la Loi de 1982 sur le Canada (R.-U.), 1982 c 11 Droits et libertés au Canada 1. La Charte canadienne des droits et libertés garantit les droits et libertés qui y sont énoncés. Ils ne peuvent être restreints que par une règle de droit, dans des limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d une société libre et démocratique. Garanties juridiques Vie, liberté et sécurité 7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu en conformité avec les principes de justice fondamentale. Criminal Code, RSC 1985, c C-46 Keeping common bawdy-house 210. (1) Every one who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. Landlord, inmate, etc. (2) Every one who Code criminel, L.R.C. (1985), ch. C-46 Tenue d une maison de débauche 210. (1) Est coupable d un acte criminel et passible d un emprisonnement maximal de deux ans quiconque tient une maison de débauche. Propriétaire, habitant, etc. (2) Est coupable d une infraction punissable sur déclaration de culpabilité par procédure

26 (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 or any part thereof to be let or used for the purposes of a common bawdy-house, is guilty of an offence punishable on summary conviction. sommaire quiconque, selon le cas : (a) habite une maison de débauche; (b) est trouvé, sans excuse légitime, dans une maison de débauche; (c) en qualité de propriétaire, locateur, occupant, locataire, agent ou ayant autrement la charge ou le contrôle d un local, permet sciemment que ce local ou une partie du local soit loué ou employé aux fins de maison de débauche. Procuring 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. Proxénétisme 212. (1) Est coupable d un acte criminel et passible d un emprisonnement maximal de dix ans quiconque, selon le cas : (j) vit entièrement ou en partie des produits de la prostitution d une autre personne.