Factum of the Respondent, the Attorney General of Canada

07-CV-329807PD1

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN:

TERRI JEAN BEDFORD, AMY LEBOVITCH, VALERIE SCOTT Applicants

and

ATTORNEY GENERAL OF CANADA Respondent

and

ATTORNEY GENERAL OF ONTARIO Intervener

FACTUM OF THE RESPONDENT, THE ATTORNEY GENERAL OF CANADA

September 2, 2009 Department of Justice Ontario Regional Office The Exchange Tower 130 King Street West, Suite 3400 Toronto, Ontario M5X 1K6

Per: Michael H. Morris Gail Sinclair Julie Jai Roy Lee

Tel: (416) 973-9704 / (416) 954-8109 (416) 973-2310 / (416) 952-2946

Fax: (416) 952-4518

Email: [email protected] [email protected] [email protected] [email protected]

Solicitor for the Respondent TO: Registrar Superior Court of Justice for Ontario 393 University Avenue 10th Floor Toronto, ON M5G 1E6

AND TO: Alan Young Osgoode Hall Law School York University 4700 Keele Street North York M3J 1P3

Counsel for the Applicant

AND TO: STACEY NICHOLS Neuberger Rose LLP 1392 Eglinton Avenue West Toronto, ON M6C 3E4

Tel: 416-364-3111 Fax: 416-364-3271 Email: [email protected]

Solicitor for the Applicant, Valerie Scott

AND TO RON MARZEL Barrister & Solicitor 1170 Sheppard Ave West, Unit 10 Toronto, ON M3K 2A3

Tel: 416-485-5800 Fax: 416-485-1610

Solicitor for the Applicant, Amy Lebovitch

AND TO: MINISTRY OF THE ATTORNEY GENERAL 20 Bay Street, 10th Floor Toronto, ON M5G 2K1

Per: Christine Bartlett-Hughes/Shelley Hallett

Tel: 416-326-4639 Fax: 416-326-4656

Solicitor for the Intervener, Attorney General of Ontario i

TABLE OF CONTENTS

PART I – STATEMENT OF FACTS...... 1 A. OVERVIEW...... 1 B. THE SOCIAL SCIENCE EVIDENCE BEFORE THE COURT – WHAT IS AND WHAT IS NOT IN DISPUTE ...... 3 C. CRIMINAL CODE OFFENCES RELATING TO PROSTITUTION...... 8 D. THE BROAD CONTEXT...... 12 E. THE LEGAL CONTEXT...... 29

PART II – POINTS IN ISSUE ...... 60

PART III – ARGUMENT...... 61 A. STANDING ...... 61 B. ONUS OF PROOF...... 63 C. PROBLEMS WITH THE APPLICANTS’ EVIDENCE...... 63 D. THE APPLICANTS HAVE NOT MET THEIR ONUS OF PROOF...... 78 E. RESPONSE TO THE APPLICANTS’ ATTACK ON CANADA’S EXPERTS ...... 78 F. THE PURPOSE AND INTERPRETATION OF THE CHALLENGED PROVISIONS ...... 84 G. THE CHALLENGED PROVISIONS, INDIVIDUALLY OR COLLECTIVELY, DO NOT INFRINGE THE APPLICANTS’ SECTION 7 RIGHTS ...... 96 H. IN THE EVENT THAT A SECTION 7 INFRINGEMENT IS FOUND, THE PROVISIONS ARE DEMONSTRABLY JUSTIFIED UNDER S. 1...... 121 I. PARAGRAPH 213(1)(C) CONSTITUTES A JUSTIFIABLE LIMITATION ON THE APPLICANTS’ SECTION 2(B) RIGHT...... 122 J. REMEDIES ...... 125

PART IV – ORDER SOUGHT ...... 128 SCHEDULE A - LIST OF AUTHORITIES ...... 129 SCHEDULE B - STATUTES RELIED ON...... 135 ii

TABLE OF CONTENTS

ANNEX ONE – LACK OF CLARITY AS TO WHERE THE LINE BETWEEN STREET AND OFF-STREET PROSTITUTION FALLS – STATEMENTS FROM APPLICANTS’ EXPERT, DR. LOWMAN

ANNEX TWO – LEGISLATIVE HISTORY OF THE CRIMINAL CODE PROVISIONS REGARDING PROSTITUTION IN CANADA

ANNEX THREE – DR. LOWMAN’S SPECIFIC CAUSAL CONCLUSIONS ARE NOT SUPPORTED BY THE EVIDENCE AND REPLY TO THE APPLICANTS’ CRITICISM OF DR. MELCHERS

ANNEX FOUR – PROBLEMS WITH THE “ECHO STUDIES” RELIED ON

ANNEX FIVE – PROBLEMS WITH THE EVIDENCE OF THE APPLICANTS’

ANNEX SIX – RESPONSE TO ALLEGATIONS ATTACKING DR. FARLEY’S STATURE AS A RESEARCHER

ANNEX SEVEN – SUMMARY OF PROSTITUTION-RELATED CRIMINAL OFFENCES IN OTHER WESTERN DEMOCRACIES

ANNEX EIGHT – OTHER INACCURATE STATEMENTS MADE IN THE APPLICANTS’ FACTUM

07-CV-329807PD1

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN:

TERRI JEAN BEDFORD, AMY LEBOVITCH, VALERIE SCOTT Applicants

and

ATTORNEY GENERAL OF CANADA Respondent

and

ATTORNEY GENERAL OF ONTARIO Intervener

FACTUM OF THE RESPONDENT, THE ATTORNEY GENERAL OF CANADA

PART I – STATEMENT OF FACTS

A. OVERVIEW

1. Prostitution entails a high level of risk for individuals who engage in it and significant harms to society at large. Social science evidence in Canada and around the world demonstrates that the risks and harms flowing from prostitution are inherent to the nature of the activity itself. The risks and harms exist regardless of the many ways in which prostitution is practiced, whether “street” or “off-street”, and regardless of the legal regime in place.

2. Parliament made difficult choices in determining which aspects of prostitution should be criminalized; namely, those linked with the most harmful and public emanations of prostitution. Unlike this Court, Parliament is in a unique position to craft legislative responses to complex social problems. The provisions being challenged here may be contentious, but 2 they are underpinned by legitimate state interests that balance the myriad of individual rights and societal interests at stake.

3. In 1990, the Supreme Court of Canada (“Supreme Court”) considered the constitutionality of two of the three Criminal Code provisions challenged here and upheld both.1 The Applicants ask this Court to set aside stare decisis and revisit this ruling on the basis that they have new evidence and arguments that the provisions violate their s. 7 Charter rights to security of the person by increasing their risk of harm when they engage in prostitution. The Applicants, however, have failed to demonstrate any basis in new evidence or in law that would justify a reconsideration of the Court’s conclusions or cast doubt on the constitutionality of any of the three provisions challenged here.

4. The Applicants have put before this Court a voluminous body of social science evidence on the issue of an alleged causal link between the challenged provisions and the endangerment of prostitutes. This evidence does not support the Applicants’ claim that the challenged provisions increase the dangers of engaging in prostitution or that it can be “safely” practiced off-street. The Applicants acknowledge that the evidence is “fraught with methodological limitations” and the issue of the relationship of the law to the risks and harms

2 flowing from prostitution has “eluded researchers for decades”. The Applicants ask, “in light of these limitations”,3 to be, in effect, relieved of their onus to prove their case on the balance of probabilities – a test they cannot meet. They are not entitled to that relief.

5. The Applicants’ s. 7 argument is ultimately based on the false premise that they have a constitutional right to engage in prostitution. They have not directly claimed such a right

1 Joint Book of Authorities (J. Auth.), Vol. 6, Tab 125, in the Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 [Prostitution Reference] The Supreme Court dismissed constitutional challenges to the validity of what are now s. 210, and s.213(1)(c) of the Criminal Code, based on ss. 2(b), 2(d) and s. 7 of the Charter ; J. Auth., Vol. 5, Tab 110, R. v. Stagnitta, [1990] 1 S.C.R. 1226, and J. Auth., Vol. 5, Tab 109, R. v. Skinner, [1990] 1 S.C.R. 1235, were decided by the Supreme Court concurrently. 2 Applicants’ Factum at para. 123 3 Ibid. 3 as it does not exist. The Charter does not mandate Parliament to design a regime allowing the

Applicants to earn money by engaging in prostitution with fewer hindrances. Parliament’s choices must, therefore, be respected and upheld.

B. THE SOCIAL SCIENCE EVIDENCE BEFORE THE COURT – WHAT IS AND WHAT IS NOT IN DISPUTE

6. There is a very large volume of social science evidence before the Court. Much of it is disputed. Yet there is a significant body of social science evidence accepted by affiants on behalf of both the Applicants and the Attorney General of Canada (“Canada”) that is not in dispute. It is useful to set out, as a starting point, the points of apparent agreement in respect of this social science evidence on what is known and what is not known about prostitution in

Canada.

1) What the affiants for both sides agree is known and not known about the population of persons engaged in prostitution in Canada 7. The affiants on behalf of the Applicants and Canada agree:

• Those engaged in prostitution constitute a hard-to-reach and inaccessible 4 population that is difficult to research; • New technologies, such as the Internet (including Craigslist) and cell phones, have caused a shift in how prostitution is practiced in Canada and elsewhere;5 • While there is little empirical data, it is generally agreed that those engaged in off-street prostitution likely constitutes the biggest part of the prostitution

4 Joint Application Record (J.A.R.), Vol. 31, Tab 65, p. 9126, Cross-examination of Ronald Weitzer (Weitzer Transcript), Q. 155, line 20; J.A.R., Vol. 26, Tab 59, p. 7483, Cross-examination of Lauren Casey (Casey Transcript), p. 46, line 6; J.A.R., Vol. 12, Tab 46, p. 3206, Cross-examination of Eleanor Maticka- Tyndale (Maticka-Tyndale Transcript), p. 21, line 4; J.A.R., Vol. 14, Tab 49, p. 3950, Cross-examination of Cecilia Benoit (Benoit Transcript), p. 25, line 15; J.A.R., Vol. 11, Tab 43, p. 2856, Cross-examination of Gayle MacDonald (MacDonald Transcript), p. 37, line 13; J.A.R., Vol. 26, Tab 56, pp. 7207-7210, Cross- examination of Dr. Frances Shaver (Shaver Transcript), p. 31, line 23 – p. 34, line 5; J.A.R., Vol. 29, Tab 62, p. 8334, Cross-examination of Barbara Sullivan (B. Sullivan Transcript), p. 116, line 4; J.A.R., Vol. 22, Tab 53, pp. 6215 – 6216, Cross-examination of Dr. Lowman, Vol. 2 (Lowman Transcripts, Vol. 2), p. 325, line 14 – p. 326, line 3; J.A.R., Vol. 23, Tab 53H, pp. 6650-6652, Lowman Transcripts, Exhibit “8”; J.A.R., Vol. 31, Tab 65, pp. 8988 – 8990, Weitzer Transcript, p. 17, line 25 – p. 19, line 2 5 J.A.R., Vol. 21, Tab 53, p. 6179, Lowman Transcript, Vol. One, Q.966; J.A.R., Vol. 31, Tab 65, pp. 9112 & 9115, Weitzer Transcripts, Q.471 ; J.A.R., Vol. 55, Tab 119B, p. 16088, Affidavit of Dr. Janice Raymond (Raymond Affidavit), Exhibit “B”; J.A.R, Vol. 47, Tab 110, p. 13521, Affidavit of Dr. van de Pol (Dr. van de Pol Affidavit), para. 57; J.A.R., Vol. 2, Tab 14, p. 198, Cross-examination of Amy Lebovitch (Lebovitch Transcript), p. 31, line 21; J.A.R., Vol. 7, Tab 29, p. 1690, Affidavit of Darlene Maurganne Mooney (Mooney Affidavit), para. 17 4

sector. This is, at least in part, a result of the technological changes referred to above;6 and • There is fluidity between the various sectors of the prostitution industry, that is, many prostitutes move between different kinds of venues (such as the street, escort services, massage parlours, strip clubs, brothels, upscale condominiums and bawdy houses).7

2) What the affiants for both sides agree on in respect of the dangers and stigma attached to prostitution in Canada and abroad

8. The affiants on behalf of the Applicants and Canada also agree:

• Street prostitution is a dangerous activity;8 • All prostitution carries with it a risk of harm – described by one of the Applicants’ affiants and in their factum as “inherent”, which affects all 9 prostitutes, regardless of venue; • Off-street prostitution can also be dangerous – and off-street prostitutes have 10 been murdered;

• There is significant social stigma attached to prostitution. This stigma exists independently of the criminal regime governing prostitution, and has a long history in Western society, pre-dating the Criminal Code;11 and

6 J.A.R., Vol. 30, Tab. 64, p. 8530, Affidavit of Ronald Weitzer (Weitzer Affidavit), para. 11; Report of the Standing Committee on Justice and Human Rights, J.A.R., Vol. 82, Tab. 164, p. 24913 7 J.A.R., Vol. 31, Tab 65, p. 9149, Weitzer Transcript, p. 178, line 5; J.A.R., Vol. 21, Tab 53, p. 6042, Lowman Transcripts, Vol.1, p. 153, line 16; J.A.R., Vol. 21, Tab 53, pp. 6276-6277, Lowman Transcripts, Vol. 2, p. 386, line 25 – p. 387, line 12; J.A.R., Vol. 2, Tab. 11, p. 45, Affidavit of Terri Jean Bedford (Bedford Affidavit), para. 2; J.A.R., Vol. 2, Tab. 13, p. 164, Affidavit of Amy Lebovitch (Lebovitch Affidavit), para. 2; J.A.R., Vol. 3, Tab. 16, pp. 294-295, Affidavit of Valerie Scott (Scott Affidavit), para. 5-11; J.A.R., Vol. 5, Tab. 22, p. 921, Affidavit of Susan Davis (Davis Affidavit), para. 3; J.A.R., Vol. 6, Tab. 24, p. 1297, (Gillies Affidavit), para. 1; J.A.R., Vol. 8, Tab. 31, p. 1862, Affidavit of Linda Shaikh (Shaikh Affidavit, para. 3; J.A.R., Vol. 8, Tab. 32, p. 1865, Affidavit of Carol-Lynn Strachan(Strachan Affidavit), para. 1 8 Applicants’ Factum at para. 22 9 J.A.R., Vol. 4, Tab 20, p. 876, Cross-examination of Wendy Babcock (Babcock Transcript), p. 88, line 20; Applicants’ Factum at para. 420; J.A.R., Vol. 26, Tab 59, p. 7541, Casey Transcript, p. 104, line 11-13; J.A.R., Vol. 31, Tab 65, p. 9077 and p. 9097, Weitzer Transcript, p. 106, line 20 and p. 126, lines 10-11; J.A.R. Vol. 21, Tab 53, p. 6341 and p. 6347, Lowman cross-examination, Q. 1431 and 1445; J.A.R. Vol. 20, Tab 51Y, p. 5540, Barnard article, Exhibit “Y” to Lowman affidavit. 10 J.A.R., Vol. 26, Tab 59, p. 7541, Casey Transcript, p. 104, line 11-13; Babcock Transcript, p. 10, lines 9- 20; J.A.R., Vol. 4, Tab 20, p. 805, Babcock Transcript, p. 17, line 10; J.A.R., Vol. 31, Tab 65, p. 9077, Weitzer Transcript, p. 106, line 20; Supplementary Joint Application Record (S.J.A.R.), Vol. 1, Tab 175, p. 26401, Answer to Undertakings of Richard Poulin, UT #5 11 J.A.R., Vol. 2, Tab 12, p. 95, Cross-examination of Terri Jean Bedford (Bedford Transcript), p. 22, line 9; J.A.R., Vol. 4, Tab 19, p. 753, Affidavit of Wendy Babcock (Babcock Affidavit), para. 8; J.A.R., Vol. 5, Tab 22, p. 931, Davis Affidavit, para. 4; J.A.R., Vol. 6, Tab 24, p. 1305, Gillies Affidavit, para. 16; J.A.R., Vol. 7, Tab 30, p. 1835, Affidavit of Jody Paterson (Paterson Affidavit), para. 9; J.A.R., Vol. 8, Tab 33, p. 1956, Cross-examination of Carol-Lyn Strachan (Strachan Transcript), p. 45, line 4; J.A.R., Vol. 26, Tab 58, p. 7422, Affidavit of Lauren Casey (Casey Affidavit), para. 8; J.A.R., Vol. 26, Tab 58, p. 7422, Casey Affidavit, para. 8; J.A.R., Vol. 26, Tab 59, p. 7470, Casey Transcript, p. 33, line 5; J.A.R., Vol. 10, Tab 40, p. 2680, Affidavit of Elliott Leyton (Leyton Affidavit), para. 10; J.A.R., Vol. 12, Tab 46, p. 3209, Maticka-Tyndale Transcript, p. 24, line 7; J.A.R., Vol. 21, Tab 53, p. 6236, Lowman Transcript, Vol. 2, p. 346, line 8; J.A.R., Vol. 47, Tab 110, p. 13531-2, Dr. van de Pol Affidavit, paras. 82-83; J.A.R., Vol. 49, Tab 113, p. 14260-1, 5

• There are multiple factors responsible for the high level of violence suffered by prostitutes, including pre-existing vulnerabilities of this population, such as physical or sexual abuse as a child and lack of education.12

3) What the expert affiants agree are the principles governing social science research methodology – and how these principles should be applied to research on prostitution in Canada and abroad

9. Much of the argument in this case turns on disputes over what conclusions can be drawn from the voluminous social science evidence – particularly in respect of causality.

There are principles governing how conclusions can be drawn from social science evidence.

Many of these principles – and how they apply to the hard to reach prostitution population – are agreed to in the abstract (although not in their application) between the experts on behalf of both the Applicants and Canada:

13 14 • Both quantitative and qualitative research methods are of value in social science research in trying to understand a given population; • Quantitative research is, however, the only way to conduct a study that can be truly representative of any given population; • The only way to be able to conduct a representative study of any given population is by way of random sampling of that population. The larger the sample, the more representative it can be of the population;15 • Where random representative sampling is not possible, purposive sampling16 is the next best thing, but conclusions reached based on purposive sampling need to be restricted to the discrete sample studied;17 • Social science researchers should use probabilistic (rather than deterministic) language to set out their research findings, using expressions such as

Affidavit of Dr. Melissa Farley (Farley Affidavit), paras. 112-116; J.A.R., Vol. 35, Tab 82, p. 10060, Affidavit of JoAnn McCartney (McCartney Affidavit), para. 23 12 J.A.R., Vol. 8, Tab 33, p. 1928, Strachan Transcript, p. 17, line 19; J.A.R., Vol. 8, Tab 34D, p. 2178, Affidavit of Augustine Brannigan (Brannigan Affidavit), Exhibit “D”; Applicants’ Factum at paras. 169 and 217 13 Quantitative research is a research method that utilizes probabilistic sampling and standardized measures so as to allow for statistical aggregation of data: J.A.R. Vol. 61, Tab 123A, p. 17845, Affidavit of Ronald- Frans Melchers (Melchers Affidavit), Exhibit “A” 14 Qualitative research is a research method that involves the examination, often in depth and in detail, of case studies: J.A.R. Vol. 61, Tab 123(A), p.17845, Melchers Affidavit, Exhibit “A” 15 J.A.R., Vol. 26, Tab 59, p. 7481, Casey Transcript, p. 44, line 23; J.A.R., Vol. 14, Tab 49, p. 3944, Benoit Transcript, p. 19, line 20; J.A.R., Vol. 21, Tab 53, p. 5921, Lowman Transcripts, Vol. 1, p. 32, line 5; J.A.R., Vol. 30, Tab 65, p. 8999, Weitzer Transcript, p. 28, line 25 16 J.A.R. Vol. 61, Tab 123(B), p. 17856, Melchers Affidavit, Exhibit “B”, Purposive Sampling: a non- probabilistic sampling method often used in qualitative research whereby the researcher identifies subjects in accordance with the purposes of research. 17 J.A.R., Vol. 11, Tab 43, p. 2856, MacDonald Transcript, p. 37, line 13; J.A.R., Vol. 12, Tab 46, p. 3204, Maticka-Tyndale Transcript, p. 19, line 8 6

“increases the likelihood of”, “heightens the probability of”, or “is more likely than”;18 and • Factual assertions capable of generalization cannot be supported by anecdotal information only.19 10. The experts on behalf of the Applicants and Canada also agree, in light of these principles, that social science research on the prostitution population is subject to the following limitations:

• Because the overall prostitute population is not known, hard to reach and inaccessible, no study can be said to be truly representative of that population;20 • It follows that random sampling of the prostitution population is just not possible;21 • It follows that no study of those engaged in prostitution can either be, or claim to be, truly representative of this whole population;22 • It is impossible to know with any certainty the size of the population of those engaged in prostitution in any jurisdiction – whether working on the street or off-street;23 • Social science researchers use purposive sampling as the next best method to random sampling. It is necessary, however, when conducting purposive sampling to qualify any conclusions reached by restricting those conclusions to the discrete sample studied;24 • No study on prostitution in one city can be generalized to represent prostitution in another city and certainly not to a country at large;25 • No study on one type of venue in prostitution can be generalized to represent prostitution practiced in another type of venue;26

18 J.A.R., Vol. 31, Tab 65, p. 9000, Weitzer Transcript, p. 29, line 5 19 J.A.R., Vol. 9, Tab 36, p. 2290, Cross-examination of Dr. Deborah Brock (Brock Transcript), p. 49, line 16; J.A.R., Vol. 31, Tab 65, p. 9129, Weitzer Transcript, Q.518 20 J.A.R., Vol. 31, Tab 65, p. 9091, Weitzer Transcript, p. 120, line 16; J.A.R., Vol. 14, Tab 49, p. 3950, Benoit Transcript, p. 25, line 15; J.A.R., Vol. 14, Tab 49, p. 3962, Benoit Transcript, p. 37, QS.150-151, line 16-23; J.A.R., Vol. 11, Tab 43, p. 2856, MacDonald Transcript, p. 37, line 13; Applicants’ Factum at paras. 123 – 125 21 J.A.R., Vol. 31, Tab 65, p. 9091, Weitzer Transcript, p. 120, line 16; J.A.R., Vol. 26, Tab 59, p. 7482, Casey Transcript, p. 45, line 2; J.A.R., Vol. 11, Tab 43, p. 2856, MacDonald Transcript, p. 37, line 13; J.A.R., Vol. 14, Tab 49, p. 3944, Benoit Transcript, p. 19, line 20; J.A.R., Vol. 21. Tab 53, p. 5920, Lowman Transcript, Vol.1, p. 31, line 17; Applicants’ Factum at para. 127 22 J.A.R., Vol. 14, Tab 49, p. 3961, Benoit Transcript, p. 36, line 13; J.A.R., Vol. 12, Tab 46, p. 3206, Maticka-Tyndale Transcript, p. 21, line 17; J.A.R., Vol. 26, Tab 56, p. 7217, Shaver Transcript, p. 41, line 21 23 Applicants’ factum at paras. 124 and 127 24 J.A.R., Vol. 11, Tab 43, p. 2856, MacDonald Transcript, p. 37, line 13; J.A.R., Vol. 12, Tab 46, p. 3204, Maticka-Tyndale Transcript, p. 19, line 8; J.A.R., Vol. 31. Tab 65, p. 9000, Weitzer Transcript, p. 29, line 5 25 Applicants’ factum para. 124; J.A.R., Vol. 31, Tab 65, pp. 9090-9091, Weitzer Transcript, QS.398-400; J.A.R., Vol. 62, Tab 125, p. 18050, Affidavit of John Pratt (Pratt Affidavit), para. 54 26 Applicants’ Factum at para. 126 7

• Social science research conducted regarding prostitution should avoid making sweeping generalizations about prostitution at large;27 and • More is known about street prostitution than other forms of prostitution, as much more research has been conducted on this more visible population. There are relatively few studies of those engaged in off-street prostitution and this has been identified as a conspicuous research gap.28

4) Core of what is in dispute and Canada’s position on the evidence

11. Canada disputes the following propositions grounding the Applicants’ argument:

• There is a hard divide between street and off-street prostitution; • Off-street prostitution is less dangerous than street prostitution, and off-street prostitutes are in a better position to prevent harm than street prostitutes; and • The challenged provisions can be demonstrated to “materially contribute”29 to the risk of harm suffered by prostitutes.30 12. Instead, the evidence supports the following propositions:

• There is no agreed upon definition offered (even by the Applicants’ own expert, Dr. Lowman) as to the divide between “street prostitution” and off-street 31 prostitution. • While the social science evidence about off-street prostitution is limited, what evidence there is establishes fluidity and cross-over between venues – recently compounded by new technologies such as cell phones and the Internet. This is a fundamental point of divergence as the Applicants’ case is largely based on the proposition that off-street prostitution can be distinguished from street prostitution, and is “safer”; • The social science evidence does not support the proposition that off-street prostitution is somehow “safer” than street prostitution. On the contrary, the evidence establishes that prostitution is inherently dangerous – regardless of the venue in which it is practiced. Differences in “safety” are more a function of “work organization”32 or the reliability of measures to enhance safety whether street or off-street;33

27 J.A.R., Vol. 31, Tab 65, p. 8999, Weitzer Transcript, p 28, line 17 28 Applicants’ Factum at para. 128; J.A.R., Vol. 21, Tab 53, p. 6215, Lowman Transcripts Vol. 1, p. 325, line 18; J.A.R., Vol. 23, Tab 53H, pp. 6650-6652, Lowman Transcripts, Exhibit “8”; J.A.R., Vol. 31, Tab 65, pp. 8988 – 8990, Weitzer Transcript, p. 17, line 25 – p. 19, line 2; J.A.R., Vol. 31, Tab 65, pp. 9008, Weitzer Transcript, p. 37, line 19; J.A.R., Vol. 31, Tab 65, p. 9059, Weitzer Transcript, p. 88, line 16 29 Applicants’ Factum at paras. 5, 198 and 480 30 Also in dispute are a number of inaccurate statements in the Applicants’ factum about both the evidence in the record and the law before the Court in this application. Annex Eight to this factum is a listing of some of these inaccurate statements, with corrections, where appropriate. 31 See Annex One – “Lack of clarity as to where the line between street and off-street prostitution falls – Statements from Applicants’ Expert – Dr. Lowman” 32 J.A.R., Vol. 19, Tab 51V, pp. 5485-5502, Affidavit of Dr. John Lowman (Lowman Affidavit), Exhibit “V”, Whittaker and Hart Research Note 33 J.A.R., Vols. 19 & 20, Tabs 51U & 51AB, pp. 5469-84 & pp. 5604-15, Lowman Affidavit, Exhibits “U” (Pyett and Warr article) & AB (Chapkis article) 8

• The research methodology applied by the Applicants’ experts suffers from serious problems and limitations which render the causal inferences they make demonstrably invalid and unreliable; and • There is no social science evidence establishing a causal relationship (or “material contribution”) between the challenged provisions and the endangerment of prostitutes. Prostitution is dangerous and inherently harmful regardless of the legal regime in which it is practiced. 13. As will be demonstrated below, Canada’s position is supported by the

Applicants’ own affidavits and cross-examinations that demonstrate that there is no hard division between street and off-street prostitution. These same sources also demonstrate that there is no evidentiary support or basis for any causal link between the challenged provisions and the endangerment of prostitutes. That alleged link is based upon expert evidence deserving of little weight that is more in the nature of advocacy than expert opinion, and can be shown to suffer from serious credibility issues, methodological limitations and multiple errors.

14. Canada’s own expert evidence demonstrates that the Applicants’ causal conclusions have not been substantiated. All of Canada’s evidence – from experts, experiential affiants, law enforcement officers from across the country and community representatives – establishes that prostitution is an inherently dangerous and harmful activity, both to those directly engaged in it and to society at large. That inherent risk of harm is demonstrated to exist regardless of the many ways in which prostitution is practiced, whether street or off-street, and regardless of the legal regime in place.

C. CRIMINAL CODE OFFENCES RELATING TO PROSTITUTION

15. While prostitution itself is not illegal, much of the conduct relating to buying and selling sexual services is criminalized. The Criminal Code provisions focus on the most harmful and public emanations of adult prostitution and include additional offences to discourage and sanction the commercial exploitation of persons under the age of eighteen through prostitution. 9

16. The Criminal Code addresses three classes of activities related to adult prostitution:

(a) procuring or living on the avails of prostitution, i.e. promoting prostitution, or controlling or manipulating prostitutes (s. 212);34

(b) keeping, being an inmate of, being found in, or transporting other persons to a common bawdy-house, i.e. the institutionalization and commercialization of prostitution (sections 210 and 211);35 and

(c) communicating in a public place for the purpose of engaging in prostitution, i.e. engaging publicly in prostitution-related transactions (s. 213).36

1) Procuring and Pimping Offences – s. 212 17. Paragraphs 212(1)(a)-(j) of the Criminal Code set out ten different offences related to procuring, describing different types of procuring (e.g. procuring someone to enter

Canada for prostitution, administering drugs to a person, etc.). The Applicants challenge only one of these offences – para. 212(1)(j). That paragraph makes it an indictable offence to “live wholly or in part on the avails of prostitution of another person”. This is often described as the

“pimping” offence,37 and it is this provision which is the most commonly used by police to charge persons who prostitute others for their own financial gain.

18. The term “living on” means “living parasitically on”; the alleged “pimp” must receive all or part of the prostitute’s proceeds or have those proceeds applied in some way to support his or her living.38

19. Subsection 212(3) creates a presumption that a person who lives with a prostitute or is in the habitual company of a prostitute is living on the avails.

20. There are relatively few charges and convictions under this section. Prostitutes are often reluctant to testify against their pimps due to the often coercive nature of their

34 Schedule B, Criminal Code, R.S.C. 1985, c. C-46, s. 212 35 Schedule B, Criminal Code, R.S.C. 1985, c. C-46, ss. 210-11 36 Schedule B, Criminal Code, R.S.C. 1985, c. C-46, s. 213 37 J.A.R., Vol. 34, Tab 81, p. 10013, Affidavit of Howard Page (Page Affidavit), para. 19 38 J. Auth., Vol. 3, Tab 44, R. v. Celebrity Enterprises Ltd., [1978] 2 W.W.R. 562 at p. 580 10

39 relationship. In the 12-month period ending on March 31, 2006, a total of 34 charges were

40 laid against adults under s. 212 in Canada, resulting in 14 convictions. Most of the procuring

41 charges were laid against males. For the ten-year period ending on March 31, 2006, a total of 880 cases under s. 212 were heard in adult court.42

2) Bawdy House Offences – s. 210 21. The Applicants challenge s. 210 in its entirety. Subsection 210(1) makes it an indictable offence for anyone to keep a common bawdy house, with a maximum of two years imprisonment.

22. Subsection 210(2) creates three different summary conviction offences:

(a) being an inmate of a common bawdy house;

(b) being found without lawful excuse in a common bawdy house; and

(c) knowingly permitting a place to be let or used for the purposes of a common bawdy house, as an owner or someone in control of the place.

23. Section 211 makes it a summary conviction offence to take, transport or direct any person to a common bawdy house, or to offer to do so. The Applicants do not challenge this section.

24. “Common bawdy house” is defined in ss.197(1) as a place that is kept or occupied or resorted to by one or more persons for the purpose of prostitution or the practice of acts of indecency. To constitute a bawdy house, premises must have been used frequently or habitually, either for the purposes of prostitution or for acts of indecency.43

25. In the 12-month period ending on March 31, 2006, a total of 294 charges were laid against adults under s. 210 as a whole (including charges against keepers, managers,

39 J.A.R., Vol. 35, Tab 83, p. 10243, Affidavit of Michelle Holm (Holm Affidavit), para. 12; J.A.R. Vol. 35, Tab 84, pp. 10268-9, Affidavit of Randy Cowan (Cowan Affidavit), para. 18 40 J.A.R., Vol. 64, Tab 128B, p. 18,944, Affidavit of Susan Wallace-Capretta (Wallace-Capretta Affidavit), Exhibit “B” 41 J.A.R., Vol. 64, Tab 128, p. 18929, Wallace-Capretta Affidavit, para. 23 42 J.A.R., Vol. 64, Tab 128, p. 18929, Wallace-Capretta Affidavit, para. 23 11

44 inmates and found-ins) in Canada, resulting in 114 convictions. The relatively low number of charges and convictions, particularly against keepers and managers, reflects the difficulty in obtaining the evidence necessary to establish these offences.45

3) Communication Offence - s. 213 26. Subsection 213(1) makes it a summary conviction offence to, in a public place or in any place open to public view:

(a) stop or attempt to stop any motor vehicle;

(b) impede the free flow of pedestrian or vehicular traffic or ingress to or egress from premises adjacent to that place; or

46 for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute.

The Applicants only challenge para. 213(1)(c).

27. Subsection 213(2) defines “public place” for purposes of this offence to include

“any place to which the public have access as of right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view”.

28. Section 213 is the most widely prosecuted of all the prostitution-related provisions, representing between 70 and 85 percent of charges relating to adult prostitution

47 between 1996 and 2006. Subsection 213(1) refers to both “engaging in prostitution” and

43 J. Auth., Vol. 5, Tab 95, R. v. Patterson (1967), 1 O.R. 429(C.A) per Schroeder J.A. (dissenting), rev’d [1968] S.C.R. 157 at p. 161. (Patterson) 44 J.A.R., Vol. 64, Tab 128B, p. 18944, Wallace-Capretta Affidavit, Exhibit B 45 J.A.R., Vol. 37, Tab 94, p. 10873, Affidavit of Renna Weinberg (Weinberg Affidavit), paras. 14-15 46 Evidence indicating that the accused spoke to an undercover officer merely out of curiosity will not suffice to establish the requisite intent: J. Auth., Vol. 5, Tab 93, R. v. Pake (1995), 103 C.C.C. (3d) 524 at p. 529 & 531 (Alta. C.A.). A mere response by an accused to an overture by an undercover police officer that he wished to obtain the sexual services of a prostitute is sufficient: J. Auth., Vol. 3, Tab 53, R. v. Edwards and Pine (1986), 32 C.C.C. (3d) 412 at p. 416 (B.C. Co. Ct.) 47 J.A.R., Vol. 64, Tab 128, pp. 18925 – 18926 and 18934, Wallace-Capretta Affidavit, paras.19 and 29. 12

48 “obtaining the sexual services of a prostitute”. The section therefore covers both prostitutes and johns. There was an almost equal charging of men and women (49% and 51% respectively during the time period between 1996 - 2006) under s. 213.49

29. In the 12-month period ending on March 31, 2006, a total of 1,488 charges were laid against adults under s. 213 in Canada, resulting in 659 convictions, marking a steady decline over the previous decade (from 2,538 charges in the 12-month period ending March

31, 1997).50

D. THE BROAD CONTEXT

1) Prostitution includes a range of different activities 30. The Supreme Court has defined prostitution as “the offering by a person of his or her body for lewdness for payment in return”.51 There have been many court cases dealing with the definition of prostitution and related offences. While stripping does not fall within the definition of prostitution, lap-dancing and other forms of paid activity which lead to sexual gratification do in certain circumstances.52

a) There is no sharp divide between street and off-street prostitution

31. One of the myths about prostitution is that there is a sharp divide between street prostitution and off-street prostitution. In reality, prostitution can be practiced in a wide variety

53 54 of venues, and there is fluidity between them. Thus, the initial encounter could be in a bar,

48 J. Auth., Vol. 4, Tab 72, In R v. Kozier (1993) 21 W.C.B. (2d) 269 at para. 9(Prov.Ct.Crim.Div) the Court concluded that the section delineates two different modes of committing the offence, one of which applies to the customer and the other to the prostitute. 49 J.A.R., Vol. 64, Tab 128, p. 18924, Wallace-Capretta Affidavit, para. 17 50 J.A.R., Vol. 64, Tab 128, p. 18931, Wallace-Capretta Affidavit, para. 25; J.A.R., Vol. 64, Tab 128B, pp. 18944-18945, Wallace-Capretta Affidavit, Exhibit “B” 51 J. Auth., Vol. 6, Tab 125, Prostitution Reference at p.1159, citing J. Auth., Vol. 3, Tab 48, R. v. De Munck, [1918] 1 K.B. 635 52 J. Auth., Vol. 3, Tab 41, R. v. Caringi, [2002] O.J. No. 2367 (C.J.), appeal dismissed [2005] O.J. No.766 (C.A.) (Caringi); J. Auth., Vol. 4, Tab 80, R. v. Mara, (1996), 27 O.R. (3d) 643 (C.A.)(Mara); J. Auth., Vol. 5, Tab 115, R. v. Tremblay (1991), 68 C.C.C. (3d) 439 (Q.C.A.) 53 J.A.R., Vol. 49, Tab 113, pp. 14250-2, Farley Affidavit, paras. 78-82 54 J.A.R., Vol. 15, Tab 51, p. 4167-8, Lowman Affidavit, para. 42, J.A.R., Vol. 21, Tab 53, p. 5983, Lowman Transcript, Vol. 1, Q. 310, J.A.R., Vol. 49, Tab 113, pp. 14252-3, 14269 & 14272, Farley Affidavit, paras. 83- 13 massage parlour, sauna or health enhancement centre, strip club, or bawdy house, or on a street corner, all of which could be arranged by means of a classified ad for an “escort”, an internet service such as Craigslist, a cell phone call or by word of mouth. The next encounter could be somewhere else, arranged by another means. The sexual act itself could take place in a hotel room, an upscale condominium, the home of the prostitute or client (“john”), in a car, in a back alley, parking lot, a park or other public place, or in place habitually used for prostitution, namely, a bawdy house.55

32. Experts and police estimate that street prostitution may constitute only about 10-

20% of all prostitution.56 Still, even street prostitution involves a range of different venues, described by police as “strolls”:

• the high-track, where prostitutes who are generally Caucasian, clean, and not drug addicted57 offer a higher-priced menu and generally have pimps;58 • the low-track, where drug-addicted prostitutes provide services for $10 - $20 or a piece of crack cocaine;59

87, 142 & 160, J.A.R., Vol. 55, Tab 119, pp. 16066-7 & 16067-8, Raymond Affidavit, paras. 79 & 82, J.A.R., Vol. 40, Tab 102, pp. 11395-6, Affidavit of Dr. Richard Poulin (Poulin Affidavit), para. 48 55 J.A.R., Vol. 49, Tab 113, pp. 14268 & 14272, Farley Affidavit, paras. 142-3 & 160 56 J.A.R., Vol. 24, Tab 55, p. 6809, Affidavit of Dr. Fran Shaver (Shaver Affidavit), para. 8; J.A.R., Vol. 31, Tab 65, pp. 9109-10, Weitzer Transcripts, Q. 467; J.A.R., Vol. 37, Tab 91, P. 10676, Affidavit of Eduardo Dizon (Dizon Affidavit), para 15 (“street prostitution today represents a very small percentage of all prostitution”); J.A.R., Vol. 37, Tab 93, p. 10813, Answers to Undertakings of Ed Dizon, UT #1 (powerpoint presentation)to his cross-examination at pg. 19; J.A.R., Vol. 35, Tab 84, p. 10266, Cowan Affidavit, para. 12 (“I believe the majority of prostitution activity in the Peel Region occurs indoors…strip clubs, at aromatherapy, nail or massage parlours, or in private residences”); J.A.R., Vol. 35, Tab 85, p. 10300, Affidavit of Gene Bowers (Bowers Affidavit), para. 43 (“Much of the prostitution that takes place in Winnipeg occurs entirely off the street. Massage parlours, escort agencies (which now call themselves ‘service providers’), strip clubs and agencies for models and/or dancers are common fronts for prostitution.” “..Internet sites such as ‘Craig’s List’ and online dating services such as ‘Quest’ function as marketplaces.”) 57 J.A.R., Vol. 35, Tab 86, p. 10393, Affidavit of Oscar Ramos (Ramos Affidavit), para. 14; J.A.R., Vol. 33, Tab 67, p. 9457, Affidavit of Natasha Falle (Falle Affidavit), paras. 31-32: (Note that Canada’s evidence from its experiential affiants – former and current prostitutes – is before the Court under anonymized initials pursuant to an Order of Campbell J. (see J.A.R., Vol. I, Tab 6, pp. 32-33, Order dated December 12, 2007) Seven of Canada’s witnesses have used initials only, and their affidavit material, along with that of two other experiential witnesses whose use their full names, is located in a separate volume – Vol. 33 of the J.A.R. – which is not reproduced in the electronic record as a further protection. 58 J.A.R., Vol. 35, Tab 86, p. 10393, Ramos Affidavit, para. 14 describes the features of high track, mid track, low track, boys town strolls, and p. 10291 para 2 notes the existence of a kiddie stroll; J.A.R., Vol. 35, Tab 83, p. 10240-10242, Holm Affidavit, paras. 10-11: describes the different tracks; J.A.R., Vol. 37, Tab 91, p. 10676, Dizon Affidavit, para. 14: Street prostitution has distinct areas and hierarchy (describes different strolls) 14

• the trannie stroll (for transvestites);60 • the kiddie stroll (for under-age prostitutes);61 and • boystown (for those, generally men, seeking male prostitutes).62 33. A so-called “street” prostitute may move from the high track to the low track as she descends into drug addiction or loses her attractiveness according to police and

63 experiential affiants. On the high track, the most lucrative area, prostitutes generally have pimps. On the low track, prostitutes are usually drug addicted and it is the drug (or the drug dealer) that is the “pimp” or the coercive force which motivates a prostitute to continue to sell

64 sexual services for money or drugs. Crack cocaine is particularly addictive and provides only

65 a short high – creating “prostitutes for whom crack is the pimp.”

34. Prostitution conducted off-street can include:

• those working for escort agencies on an “in-call” basis (services provided on site)66 or an “out-call” basis (service provided in location provided by the john); • specialized prostitution practices catering to specific preferences, such as 67 sado-masochism and bondage; • women trafficked from other countries into indoor venues, where they can be more easily hidden than on the street;68 and • similarly, under-age prostitutes are sometimes found indoors, where it is harder for the police to find them.69

59 J.A.R., Vol. 35, Tab 86, p. 10394, Ramos Affidavit, para. 16; J.A.R., Vol. 35, Tab 83, p. 10242, Holm Affidavit, para. 10; J.A.R., Vol. 35, Tab 86, p. 10394, Ramos Affidavit, para. 16: (“In the lowtrack in the Downtown Eastside, it has been observed that a disproportional number of the prostitutes are Aboriginal.”) 60 J.A.R. Vol. 34, Tab 81, p. 10006, Page Affidavit, para. 6 61 J.A.R. Vol. 34, Tab 81, p. 10006, Page Affidavit, para. 6 62 J.A.R., Vol. 37, Tab 91, p. 10676, Dizon Affidavit, para. 14; J.A.R., Vol. 34, Tab 81, p. 10017, Page Affidavit, para. 29; J.A.R., Vol. 35, Tab 83, p. 10241, Holm Affidavit, para. 10 63 J.A.R., Vol. 33, Tab 67, p. 9456, Falle Affidavit, para. 30; J.A.R., Vol. 34, Tab 81, p. 10017, Page Affidavit, para. 29 64 J.A.R., Vol. 35, Tab 83, p. 10420, Holm Affidavit, para. 10c; J.A.R., Vol. 35, Tab 85, p. 10394, Bowers Affidavit, para. 16 65 J.A.R., Vol. 34, Tab 81, p. 10008, Page Affidavit, para. 10 66 J.A.R., Vol. 21, Tab 53, pp. 5979-80, Lowman Transcripts, Vol. 1, Qs. 301 67 J.A.R., Vol. 2, Tab 11, p. 51, Bedford Affidavit, para. 24; J.A.R., Vol. 2, Tab 13, p. 165, Lebovitch Affidavit, para. 4 68 J.A.R., Vol. 35, Tab 86, p. 10393, Ramos Affidavit, para. 13: “Most of the indoor venues that I took part in investigating had a high proportion of off shore human trafficking”. 69 J.A.R., Vol. 35, Tab 83, p. 10245, Holm Affidavit, para. 16c: Police rarely find under-age prostitutes working the streets anymore, and Ms. Holm believes that “this is because more and more underage girls are working ‘inside’, away from the prying eyes of police.” 15

35. Prostitution conducted off-street is even more varied than street prostitution, with individual prostitutes moving between its venues, as well as between street to off-street

70 prostitution and back again. In some situations, prostitutes will work the streets, while carrying a cell phone to take calls from escort agencies71, thus working both street and off-

72 street simultaneously. The fluidity is also a function of pimps deliberately moving their prostitutes from one venue to another73 in order to:

• increase their control over them; • separate them from support systems and isolate them from friends and family; and 74 • to present the prostitute as a “fresh face” in a different locale. 36. It follows that the social science evidence tendered in this case has not established a sharp divide between street and off-street prostitution. Even the Applicants’ experts disagree as to where that divide may fall. Included as Annex One are excerpts from

70 J.A.R., Vol. 2, Tab. 11, p. 45, Bedford Affidavit, para. 2 (Ms. Bedford has worked on and off the street, in escort, massage parlours and in a bawdy house as a dominatrix); J.A.R., Vol. 2, Tab. 13, p. 164, Lebovitch Affidavit, para. 2 (Ms. Lebovitch began working on the street and subsequently, moved indoors); J.A.R., Vol. 3, Tab. 16, p. 294-295, Scott Affidavit, paras. 5-11 (Ms. Scott began working indoors, then on the street, and back indoors again); J.A.R., Vol. 5, Tab. 22, p. 921, Davis Affidavit, para. 3 (Ms. Davis worked on the street, for escort agencies on an out-call basis and indoors.) J.A.R., Vol. 6, Tab. 24, p. 1297, Gillies Affidavit, para. 1 (Ms. Gillies began as a street prostitute, then worked in massage parlours to later become self-employed.); J.A.R., Vol. 8, Tab. 31, p. 1862, Shaikh Affidavit, para. 3 (Ms. Shaikh has worked in both street and off- street prostitution); J.A.R., Vol. 8, Tab. 32, p. 1865, Strachan Affidavit, para. 1 (Ms. Strachan has worked in all aspects of the sex trade industry – exotic dancing, escort services and street prostitution) J.A.R., Vol. 33, Tab 67, pp. 9454-9458, Falle Affidavit, paras. 21-32 (Ms. Falle worked as an in-call prostitute, an out-call escort, and the street on the high track); J.A.R., Vol. 33, Tab 72, p. 9683, Affidavit of T.D., para. 21, (Ms. D. has worked on the street, high track, and for an escort agency.) 71 J.A.R., Vol. 35, Tab 86, p. 10393-4,Ramos Affidavit, para. 14 72 J.A.R., Vol. 35, Tab 83, p. 10238, Holm Affidavit, para. 5: “The Oxford Dictionary states that a Pimp is a man who lives off the earnings of a sex trade worker or a brothel. I believe this definition to be out of date and not reflective of the realities of the sex trade. In the context of ‘High Track,’ a ‘Pimp’ is a male who exercises control and uses manipulation and sometimes threats and/or acts violence to coerce a female to work in the sex trade.” Pimps and prostitutes may be either men or women, but the majority of pimps are men and the majority of prostitutes are women. For convenience, in this factum, pimps are considered to be male and prostitutes female. 73 J.A.R., Vol. 49, Tab 113, pp. 14250-1, Farley Affidavit, para. 78 74 J.A.R., Vol. 33, Tab 67, p. 9458, Falle Affidavit, para. 33(“My pimp wanted me to work at indoor locations rather than the street, since that way he could keep track of me more easily.”); J.A.R., Vol. 33, Tab 72, p. 9681, Affidavit of T.D., para. 12 (“My pimp moved me around from city to city. That was to better control me and to isolate me more and more from my friends and family. He also moved me about because it is good for business to be the fresh, new face on the street.”); J.A.R., Vol. 35, Tab 86, p. 10397, Ramos Affidavit, para. 26 (“In my experience, pimps often moved girls from Vancouver to another city or from other towns or cities to Vancouver in order to cut off ties and to establish more control of the girl.”) 16

Dr. Lowman’s cross-examination setting out the range of different views of what constitutes street and off-street prostitution.

b) This fluidity is compounded by cell phones and the Internet

37. Fluidity between venues has been compounded by the advent of cell phones

75 and the internet. One of the Applicants’ experts testified that there has been a “massive

76 development” in off-street prostitution facilitated by the Internet and Craigslist.

2) Prostitution is associated with other harmful activities 38. Social science evidence demonstrates that prostitution does not occur in isolation. It is linked to many other harmful, often criminal activities, which feed off prostitution and the people involved in the business of selling sex for money. These harmful activities include:

• physical violence in prostitution; • drug addiction and drug trafficking; • the involvement of organized crime; and • the globalization of the sex industry and trafficking in persons. a) Prostitution and Physical Violence

39. There is ample evidence, expert77 and experiential,78 that prostitutes are frequently assaulted by johns and pimps. While there are some safety measures that can be taken, both on the street and off-street79 “johns can become violent at any moment”.80 In

75 J.A.R., Vol. 50, Tab 114, pp. 14701-2, Farley Transcript, Q. 249; J.A.R., Vol. 55, Tab 119B, p. 16088, Raymond Affidavit, Exhibit “B”, Testimony before the European Parliament, Public Hearing on the ‘Impact of the Sex Industry in the E.U.; J.A.R, Vol. 47, Tab 110, p. 13521, Dr. van de Pol Affidavit, para. 57 76 J.A. R, Vol. 21, Tab 53, p. 5942, Dr. Lowman Transcripts, Vol. 1, Q. 162 77 J.A.R., Vol. 49, Tab 113, pp. 14233-5, Farley Affidavit, paras. 15-21; J.A.R., Vol. 55, Tab 119, pp. 16066- 7, Raymond Affidavit, paras. 78-9; J.A.R., Vol. 40, Tab 1102, p. 11387, Poulin Affidavit, para. 26 78 J.A.R. Vol. 33, Tab 67, pp. 9454, 9456 & 9459, Falle Affidavit outlines assaults by pimp, johns, driver, etc, paras. 22, 28 and 37-39; J.A.R. Vol. 33, Tab 71, pp. 9665-6, Affidavit of Dawn Hodgins (Hodgins Affidavit), paras 22-23; J.A.R. Vol. 33, Tab 73, p. 9696, Affidavit of J.S., para 23; J.A.R. Vol. 33, Tab 76, p. 9732, Affidavit of K.C. para 14 79 The mother of J.S., also a prostitute, gave her safety tips such as never getting into a john’s car – see J.A.R. Vol. 33, Tab 73, p. 9706, Affidavit of J.S., Exhibit “A”. See also: J.A.R. Vol. 33, Tab 67E, pp 9486- 9487, Falle Affidavit, Exhibit “E”, “Be Street Smart” J.A.R., Vol. 33, Tab 72, p. 9685, Affidavit of T.D., para. 27, states that she takes measures such as not getting in cars and not going to clients’ homes, to avoid violence. 17

81 addition to being victims of violence, prostitutes may also rob or even assault johns. They can also assault other prostitutes in order to protect their turf.82 As J.S. explained, 83

When tricks won’t pay, or other girls try to undercut you and take tricks away, you swallow that as rage. All of that was on top of the rage from being abused. I became so violent, that I may have killed someone if I hadn’t left the street. It follows that assault, sexual assault, robbery and other acts of physical violence are common occurrences in the world inhabited by prostitutes, pimps, johns and drug dealers.

b) Prostitution and Drugs

40. Experts, police and experiential affiants testified that drugs and prostitution are closely linked. While few prostitutes start as drug addicts, many of them become addicts as a

84 85 coping mechanism, especially low track street prostitutes. This is because “[d]rugs and alcohol function as analgesics for the traumatic physical and sexual assault by johns and pimps that commonly occur in prostitution.”86 As one former prostitute poignantly testified:87

I had to be drugged to endure what was happening to me … When I tried heroin I loved it … it took away the fear and humiliation I experienced from the things the tricks did and said to me.

80 J.A.R. Vol. 33, Tab 67, p. 9467, Falle Affidavit, para. 61; J.A.R. Vol. 2, Tab 13, p. 165: Amy Lebovitch attests to an incident of violence working indoors at a fetish house where she was tied up and raped by her client – see para. 4 of her affidavit; J.A.R. Vol. 8, Tab 33, pp. 1941-2: The most violent attack attested to by Carol-Lynn Strachan, which resulted in her hospitalization and inability to have more children, did not result from being picked up by a john while on the stroll (as she deposed in para 2 of her affidavit, referred to in Applicants’ factum para 85) but rather from an attack by her pimp husband and father of her children. 81 J.A.R., Vol. 36, Tab 88, p. 10554, Joyal Affidavit, para. 30; J.A.R., Tab 73, p. 9696-7, Affidavit of J.S., paras. 26-7 82 J.A.R., Vol. 34, Tab 81, p. 10016, Page Affidavit, para. 28: one of his undercover officers posing as a prostitute was viciously assaulted by another prostitute who thought she was taking over her turf. 83 J.A.R., Vol. 33, Tab 73, pp. 9696-7, Affidavit of J.S., para. 27 (she describes an incident when she hit a non-paying john on the head 3 times with an ashtray) 84 J.A.R., Vol. 49, Tab 113, pp. 14223-4, Farley Affidavit, para. 10 85 J.A.R., Vol. 36, Tab 88, pp. 10553-10554, Affidavit of Sonia Joyal (Joyal Affidavit), para. 28 (drug abuse, addiction and street-level prostitution go hand-in-hand - many women use drugs to cope with having to have sex for money; say they need to be high to engage in prostitution); J.A.R., Vol. 35, Tab 82, p. 10055, McCartney Affidavit, para. 9 (an overwhelming percentage of prostitutes are addicted to hard drugs and rely on prostitution to finance their addictions); J.A.R., Vol. 35, Tab 86, p. 10394, Ramos Affidavit, paras. 16 – 18; J.A.R., Vol. 34, Tab 81, p. 10016, Page Affidavit, para 27 86 J.A.R., Vol. 49, Tab 113, p. 14246, Farley Affidavit, para. 60; see also J.A.R., Vol. 49, Tab 113, p. 14223- 4, Farley Affidavit, para. 10 87 J.A.R., Vol. 33, Tab 73, p. 9694, Affidavit of J.S., para. 19 18

88 41. Police affiants testified that many prostitutes and pimps also sell drugs:

Drug traffickers hang around prostitutes to feed their addiction. In the seven years when I was in charge of the Vice Section, we arrested approximately a thousand drug traffickers. A significant percentage of those arrested were known prostitutes who used drugs and were willing to assist others in purchasing drugs. c) Prostitution and Organized Crime

89 42. Experts and police testified that organized crime is involved in prostitution. It is involved in the procuring of women,90 as well as the trafficking of women and children for prostitution, often in tandem with other criminal activity such as drug trafficking, automobile

91 theft, and trafficking in illegal weapons. Members of different police forces testified that:

• organized crime is particularly involved in strip clubs;92 • massage parlours and strip clubs are often owned by individuals or entities connected to organized crime;93 • some pimps are known to be members or affiliates of criminal gangs and that their prostitutes therefore work an area of the city controlled by the corresponding gang;94 and • proceeds of prostitution activity in bawdy houses have been traced to known organized crime members.95 d) Globalization of the sex industry and trafficking in persons

43. The sex industry has been described as a “bottomless market”.96 It represents

97 an enormous global business, outstripped only by the trade in drugs. Globalization of the

“sex industry” fuels the demand for certain types of sexual services which can be moved to

88 J.A.R., Vol. 34, Tab 81, p. 10,016, Page Affidavit, para. 27, J.A.R., Vol. 36, Tab 88, pp. 10553-10554, Joyal Affidavit, paras 28-29. 89 J.A.R., Vol. 55, Tab 119, p.16060-1, Raymond Affidavit, paras. 66-67; J.A.R., Vol. 40, Tab 102, pp. 11397, 11415, 11416 & 11424-7, Poulin Affidavit, paras. 51, 94, 97 & 114-9; J.A.R., Vol. 47, Tab 110, p. 13524, Dr. van de Pol Affidavit, para. 65; J.A.R., Vol. 52, Tab 116, pp. 15085 & 15107-10, Affidavit of Dr. Mary Sullivan (M. Sullivan Affidavit), paras. 3, 63-8 90 J.A.R., Vol. 40, Tab 102, pp. 11401-2 & 11424-5, Poulin Affidavit, paras. 61 &114 91 J.A.R., Vol. 34, Tab 78, p. 9758, Morrissey Affidavit (Morrissey Affidavit), para. 10 92 J.A.R., Vol. 35, Tab 83, p. 10248, Holm Affidavit, para. 21: “these premises are generally considered to be affiliated with organized crime, so that there are logistical and safety concerns which preclude undercover operations in these venues”; J.A.R., Vol. 34, Tab 81, p. 10012, Page Affidavit, para. 18: “Most strip clubs are run by bikers who are part of organized crime networks” 93 J.A.R., Vol. 34, Tab 78, p. 9758, Morrissey Affidavit, para. 10 94 J.A.R., Vol. 34, Tab 78, p. 9758, Morrissey Affidavit, para. 10 95 J.A.R., Vol.34, Tab 78, pp. 9758, Morrissey Affidavit, para. 11 96 J.A.R., Vol. 49, Tabs 113F, p. 14395, Farley Affidavit, Exhibit “F”, quoting Alan Young, “Bad for the Body, Bad for the Heart: Prostitution Harms Women Even if Legalized or Decriminalized”, p. 1088 19 meet market demand, thus potentially increasing incidents of forced prostitution and trafficking in persons for the purposes of sexual exploitation. Movement of prostitutes between countries can result in increased prostitution activity in jurisdictions perceived as having more lenient legislative regimes.98

3) Harms Flowing from Prostitution

a) Overview: Harms from Prostitution flow from the activity itself

Prostitution is not unsafe because of the existing laws. Prostitution is unsafe because men, whether they are pimps or johns, deliberately choose to inflict violence against women involved in prostitution because they think that they can get away with it.99 44. Experts have reported that prostitution involves an inherent risk of harm, even if violence is never realized. This is due to the physical and psychological harms that result from prostitution. Studies show that women engaged in prostitution suffer from high rates of both dissociation and post-traumatic stress disorder (“PTSD”):100

We found a PTSD prevalence rate of 68% among those in prostitution in 9 countries. Two thirds of those in prostitution met clinical criteria for a diagnosis of PTSD. This rate was among the highest for any group of people whose traumatic stress was evaluated. This rate of PTSD is comparable to the rates of PTSD among battered women seeking shelter, rape survivors, combat veterans, and survivors of state-sponsored torture. 45. Empirical studies indicate that the risk of violence is always present in

101 prostitution however or wherever it is engaged in. Police and experiential witnesses have testified that: 102

In some respects, the risk of violence and other harms is escalated in indoor settings because prostitution activity occurring behind closed doors is less accessible to law enforcement agencies and inaccessible to community groups ...common bawdy houses are commonly linked to the trafficking of women and children for the purpose of prostitution.

97 J.A.R., Vol. 55, Tab 119, p. 16072-3, Raymond Affidavit, para. 91 98 J.A.R., Vol. 35, Tab 84, p. 10274, Cowan affidavit, para. 29 99 J.A.R., Vol. 35, Tab 82, p. 10061, McCartney Affidavit, para. 26 100 J.A.R., Vol. 49, Tab 113, p. 14238, Farley Affidavit, para. 34 101 J.A.R. Vol. 20, Tab 51Z, pp. 5567, Lowman Affidavit, Exhibit “Z”, Brents, B & Hausbeck, K “Violence and legalized Brothel: Prostitution in Nevada – Examining safety, Risk and Prostitution Policy”(“According to our informants in the brothels, the danger is real and always present”) 102 J.A.R., Vol. 35, Tab 82, p. 10058, McCartney Affidavit, para. 17; J.A.R., Vol. 33, Tab 74, p. 9716, Affidavit of H.C., paras. 33-34 20

46. Individuals who have been involved in prostitution, despite terrible physical abuse, have said that: 103

the harms that are invisible and that leave no physical marks – relentless and toxic verbal abuse from pimps and johns alike, mental degradation, brainwashing, social isolation, the requirement that they smile while being harmed or else their children will be harmed – are the harms that last the longest, leave the most damaging emotional scars and in some instances never heal. 47. Former prostitutes talk about the long journey to recovery from a life of being totally dependant on a pimp and estranged from “straight” society, and of having difficulty

104 105 forming healthy relationships for many years. One experiential witness testified:

Being treated by them [tricks] as a mere commodity simply confirmed and reinforced my pre-existing perception that my value depended upon my sexuality. It took me a long time, even after I stopped being prostituted, to believe I had anything to offer anyone other than sex. 48. They have stated that they only become aware of the damage that has occurred as a result of the repetitive use of their bodies for paid sex once they have left prostitution.106

During the eight years as a prostitute I had paid sex with approximately 14,000 men, which I estimate as 5 men per day, 365 days a year X 8 years… At the time I was involved in prostitution, I did not recognize how damaging it was to me. I felt I had no other options and since I needed to have sex for money to survive, I rationalized my situation and convinced myself it was ok. Natasha Falle described her state of mind this way: 107

I was paid for something I knew how to do. I justified it as no longer giving “it” away for free and as a job, as do many of the prostitutes I have encountered. To do sex work, I had to view it as my “choice” or else I wouldn’t have been

103 J.A.R., Vol. 49, Tab 113, p. 14269, Farley Affidavit, para. 147 104 J.A.R., Vol. 33, Tab 73, p. 9703, Affidavit of J.S., para. 46; see also J.A.R., Vol. 33, Tab 71, p. 9670, Hodgins Affidavit, para. 42 “I had great difficulty trusting men because I have seen men from all walks of life and appearances that were capable of violence and exploitation”; J.A.R., Vol. 33, Tab 76, p. 9732 Affidavit of K.C., para. 16 105 J.A.R., Vol. 33, Tab 73, pp. 9703 and 9697-9700, Affidavit of J.S., paras. 46 and 29 - 35: “to this day I grapple with self-esteem issues” despite having a Master’s degree now. J.A.R., Vol. 33, Tab 70, p. 9655, Affidavit of D.S., para. 62: “It was impossible for me to have a healthy sexual relationship while I was being prostituted. Even after exiting prostitution, it was difficult. It took years after leaving prostitution before I was able to have a healthy sexual relationship”; J.A.R., Vol. 33, Tab 77, p. 9751, Affidavit of P.M., para. 43: “For a long time after leaving the sex trade I found it hard to face men in any situation. I would change lines in the supermarket or bank to avoid a male cashier because I just didn’t know how to act around men if I wasn’t trying to have sex with them.” 106 J.A.R., Vol. 33, Tab 71, p. 9666, Hodgins Affidavit, para. 30 and p. 9670, para. 40 107 J.A.R., Vol. 33, Tab 67, p. 9452, Falle Affidavit, para. 17 21

able to live in my skin to do the work at all, so I embraced it for all it was worth. Today, however, I know that it was never really a “choice” for me. b) Prostitution and its links to exploitation

i) Age of entry 49. Empirical studies in Canada108 and around the world109 indicate that individuals

110 generally begin working as prostitutes between the ages of 14-16. One study in Canada indicated that an average age of entry may be as low as 14 years of age.111 The Criminal

Code prohibits all prostitution of persons under the age of 18.112

50. Under-age prostitutes are considered particularly desirable. As Lamer J. noted in the 1990 Prostitution Reference, “[q]uite often it is the young who are most desirable to pimps as they bring in the most money and are the easiest to control.”113 Det. Jim Morrissey of the Edmonton Police Service states:114

In my experience, there has always been and will continue to be a high demand for underage prostitutes. Many johns are specifically looking for “fresh” girls to have sex with and are willing to pay a premium for underage prostitutes. Pimps therefore have to seek to recruit underage girls into prostitution because it is highly lucrative. ii) Pre-existing vulnerabilities At the time, I thought sex for money was a good deal because at least I was getting paid money for the same thing I had experienced when I was sexually abused as a child.115 51. Empirical studies, and testimony of those who have counselled and provided support services to prostitutes, make it clear that many women who end up in prostitution

108 J.A.R., Vol. 40, Tab 102, p. 11388, Poulin Affidavit, para. 28 and accompanying footnotes 109 J.A.R., Vol. 49, Tab 113, pp. 14236-7, Farley Affidavit, paras. 27-9 110 J.A.R., Vol. 40, Tab 102, p. 11388, Poulin Affidavit, para. 28; J.A.R., Vol. 33, Tab 67, p. 9465, Falle Affidavit, para. 57: says 16; J.A.R., Vol. 35, Tab 82, p. 10055, McCartney Affidavit, para. 8: says 14; J.A.R., Vol. 34, Tab 78, p. 9758, Morrissey Affidavit, (para. 12: says 13-14 years) 111 S.J.A.R, Vol. 1, Tab 175J, p. 26547, Strolling Away, p. 15; J.A.R., Tab 40, p. 102, p. 11388, Poulin Affidavit, para. 28 112 Schedule “B”,Criminal Code, subsection 212(2), (2.1) and (4) 113 J. Auth., Vol. 6, Tab 125, Prostitution Reference at p. 1194 114 J.A.R., Vol. 34, Tab 78, p. 9759, Morrissey Affidavit, para. 15 115 J.A.R., Vol. 33, Tab 71, p. 9662, Hodgins Affidavit, para. 14 22 share certain background factors that make them more vulnerable to being lured into a life of prostitution.116 These background risk factors include:

• childhood physical and sexual abuse, or emotional neglect;117 • dissociation (a survival mechanism when faced with abuse at a young age);118 • isolation or alienation from family;119 • lack of education and job skills;120 and • low self-esteem.121 52. Terri Jean Bedford, the lead Applicant in this matter, revealed in her cross- examination that, as a young girl, she was the embodiment of all these pre-existing vulnerabilities, and many of the Applicants’ experiential affiants have been subject to at least some of these vulnerabilities.122

iii) Role of Pimps 123 53. Experts agree that little research has been conducted on the role of pimps.

Nevertheless:

• one of the Applicants’ experts acknowledged that up to 50% of prostitutes could have pimps;124 • one study in Vancouver reported that as many as 50% of prostitutes had been coerced into prostitution by pimps;125 and

116 J.A.R., Vol. 19, Tab 51R, pp. 5421, Lowman Affidavit, Exhibit “R”; J.A.R., Vol. 38, Tab 96, pp. 10933-4, Quinn Affidavit, para. 23. 117 J.A.R., Vol. 49, Tab 113, pp. 142335-7, Farley Affidavit, paras. 22-30; J.A.R., Vol. 40, Tab 102, pp 11390-93, Poulin Affidavit, paras. 34-39; J.A.R., Vol. 33, Tab 70, p. 9652, Affidavit of D.S., para. 57; J.A.R., Vol. 33, Tab 71, pp. 9660, 9661, Hodgins Affidavit, paras. 7 and 10 118 J.A.R., Vol. 49, Tab 113, pp. 14239, Farley Affidavit, paras. 36 & 38; J.A.R., Vol. 33, Tab 70, p. 9651, Affidavit of D.S., para. 53 119 J.A.R., Vol. 49, Tab 113, pp. 14243, Farley Affidavit, para. 53; J.A.R., Vol. 33, Tab 70, p. 9652, Affidavit of D.S., para. 54 120 J.A.R. Vol. 15, Tab 51, pp. 4162-3, Lowman Affidavit, para. 33, J.A.R., Vol. 33, Tab 70, pp. 9651-9652, Affidavit of D.S., paras. 53-57 121 J.A.R., Vol. 40, Tab 102, pp. 11405, Poulin Affidavit, para. 70; J.A.R., Vol. 33, Tab 76, pp. 9734-5, Affidavit of K.C., para. 22: (“I also stayed in sex work because men wanting me and paying me for sex was a ‘high’ and a self-esteem boost that kept me there.”) 122 J.A.R., Vol. 2, Tab 12, pp. 110-123, Bedford Transcript, Qs. 157-23; See also J.A.R. , Vol. 4, Tab 17, p. 617, Cross-Examination of Valerie Scott (Scott Transcript), Qs. 219-221; Vol. 4, Tab 20, pp. 790-791 and p.835, Babcock Transcript, Qs. 2-10 and Q. 247. 123 J.A.R., Vol. 22, Tab 53, p. 6392, Lowman Transcripts, Vol. 2, Q. 1567; J.A.R., Vol. 31, Tab 65, p. 9023, Weitzer Transcript, Q. 171 124 J.A.R, Vol. 25, Tab 56, p. 7237-8, Shaver Transcript, Qs. 172-6 125 J.A.R, Vol. 46, Tab 107, p. 13242, Affidavit of Alexis Kennedy (Kennedy Affidavit), para. 15 23

• the same study indicates that pimps use a variety of different recruitment techniques – these include the pretense of love, threats of indebtedness, drug 126 addiction, manipulation, and violence. 54. Det. Randy Cowan with the Peel Regional Police states that the pimp-prostitute

127 relationship typically involves psychological manipulation and physical abuse:

Over time, the pimp can employ a number of techniques to prey on the prostitute’s underlying insecurities and emotions, strip her of her dignity and self-respect, and gain control over her. There are even books on these “grooming” techniques: we found books entitled ‘Games Pimps Play’ and ‘Pimpin’ Ain’t Easy’ among the possessions of a pimp. 55. Expert, police and experiential evidence indicates that prostitutes become emotionally and financially dependent on their pimp and will gradually give in to their requests

128 to engage in prostitution to show their “love” and commitment to the pimp. Pimps often provide drugs, creating a drug addiction which makes the prostitute even more dependent on them and creates the need to make money through prostitution to buy drugs for herself and

129 130 her ‘boyfriend’. As noted by the Supreme Court in Downey:

Prostitutes are a particularly vulnerable segment of society. The cruel abuse they suffer inflicted by their parasitic pimps has been well-documented. 56. In addition to psychological control, physical violence is also used by some pimps as a method to control prostitutes and prevent them from leaving prostitution or going to work for another pimp. For example, the Hell’s Angels in Quebec use gang rape as a

126 J.A.R, Vol. 46, Tab 107B, p. 13276, Kennedy Affidavit, Exhibit “B” 127 J.A.R., Vol. 35, Tab 84, pp. 10268-9, Cowan Affidavit, para. 18 128 J.A.R, Vol. 46, Tab 107, pp. 13242-3, Kennedy Affidavit, paras. 15-19; J.A.R., Vol. 35, Tab 86, p. 10396, Ramos Affidavit, para. 23; J.A.R., Vol. 35, Tab 82, p. 10057-8, McCartney Affidavit, para. 15 129 J.A.R., Vol. 46, Tab 107, pp. 13242-3 & 13244-5, Kennedy Affidavit, paras. 16, 23 & 27, J.A.R., Vol. 2, Tab 11, p. 46, Bedford Affidavit, para. 4 (“He gave me my first needle of speed, and I was addicted in no time. My boyfriend told me that if I wanted more drugs from him, I had to go out onto the street and sell myself as a prostitute, which I did.”); J.A.R., Vol. 35, Tab 82, p. 10055-6, McCartney Affidavit, para. 9 (“In many instances, prostitutes are introduced to drugs by their pimps who initially provide the drugs to the women for free in order to reduce their resistance to manipulation. . . . It is also common for drug dealers to suggest prostitution as a means for women to get the money required to purchase their drugs.”); J.A.R., Vol. 33, Tab 75, p. 9721, Affidavit of L.B., para. 6: met a man who was a drug addict and became addicted to crack cocaine herself. She started working as a prostitute to support her habit and to provide drugs and money for her boyfriend. (“This was not a conscious choice at the time but something I fell into as a result of the drug addiction and the influence of my boyfriend/pimp.”) 130 J. Auth., Vol. 3, Tab 51, R. v. Downey, [1992] 2 S.C.R. 10 at p. 39 (Downey) 24 technique to break down a woman, strip her of any sense of self-worth, in order to manipulate and control her.131

iv) Addiction, Disease, and Other Health Effects I have watched many girls go from being young, fresh faced and pretty, to becoming hardened crack addicts with rotting teeth, sunken cheeks, burned fingers, poor hygiene, malnourished and unkempt. . . As a result of their addiction, they lose their beauty and can only work on the low track, making $20 - $40 a trick, and needing to turn 20-25 tricks a day to support their habit.132 57. Expert,133 experiential,134 and police135 evidence indicates that the lifestyle of a prostitute often involves little sleep, poor nutrition, drug addiction, frequent unprotected sex and abusive relationships which can lead to many health problems, including injury, infection,

136 HIV and other sexually transmitted diseases. P.M.’s experience is typical:

During my years as a prostitute, I suffered from drug and alcohol dependency, bleeding ulcers, mental health problems and sexually transmitted diseases. 58. Prostitutes are also subject to higher rates of cervical cancer, with two risk factors being the younger age at which they engage in sexual activity and the high number of sexual partners.137

v) Prostitution and Trafficking 59. The Criminal Code describes a victim of trafficking as including individuals who provide sexual services because they “believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide,” these services.138

131 J.A.R., Vol. 40, Tab 102, p. 11402, Poulin Affidavit, paras. 62-3; see also, p. 11421-2, Poulin Affidavit, para. 109 with regard to “submission camps” in the Balkans 132 J.A.R., Vol. 34, Tab 81, p. 10017, Page Affidavit, para. 29 133 J.A.R., Vol. 49, Tab 113, pp. 14247-50, Farley Affidavit, paras. 64-77; J.A.R., Vol. 52, Vol. 116, p. 15120, M. Sullivan Affidavit, para. 91 134 J.A.R., Vol. 33, Tab 77, pp. 9749-9750, Affidavit of P.M. paras 37-8; J.A.R., Vol. 33, Tab 67, pp. 9459- 9460, Falle Affidavit, paras 38 – 41. 135 J.A.R., Vol. 37, Tab 91, pp. 10675-10676, Dizon Affidavit, paras 12-13; J.A.R., Vol. 34, Tab 81, p. 10017, Page Affidavit, para. 29. 136 J.A.R., Vol. 33, Tab 77, p. 9749, Affidavit of P.M., para. 37 137 J.A.R., Vol. 49, Tab 113, p. 13242, Farley Affidavit, para, 66 138 J.A.R., Vol. 82, Tab 163, pp. 24739-40, An Act to Amend the Criminal Code (trafficking in persons), S.C. 2005, c. 43, s. 3 (now s. 279.04) 25

60. Expert139 and police evidence140 indicates that there are clear linkages between

141 prostitution and the trafficking of women and children for the purpose of sexual exploitation.

Women may be recruited and forced into prostitution locally and then transported to other

142 provinces or places in the U.S. The keeping of common bawdy houses is an integral part of human trafficking syndicates, as this is where victims may be “trained” and housed, and then transported elsewhere for the purpose of sexual exploitation.143 Police report increasingly being called to investigate residential brothels where women brought in from Asia or under-age girls were working as prostitutes.144

61. The United Nations Office on Drugs and Crime (UNODC) counts 127 countries as sources and 137 as destinations for victims of trafficking. Canada is a country of origin,

145 destination and transit.

vi) Difficulties exiting Prostitution 62. A study has indicated that as many as 92% would exit prostitution if they were

146 given a choice. However, once a woman has engaged in prostitution, it is difficult to leave.

A prostitute may have few marketable skills, be isolated from her family with her only “friends”

139 J.A.R., Vol. 55, Tab 119, pp 16041, 16057-16061 & 16072-3, Raymond Affidavit, paras. 17, 58-67 & 89- 91 140 J.A.R., Vol. 35, Tab 84A & 84B, pp. 10277 & 10282, Cowan Affidavit Exhibits “A” and “B”; see also the references in the subsequent footnotes in this paragraph. 141 J.A.R., Vol. 34, Tab 78, pp. 9760-9761, Morrissey Affidavit, para. 20-23; J.A.R., Vol. 35, Tab 82, p. 10058, McCartney Affidavit, para. 17 142 J.A.R., Vol. 34, Tab 78, p. 9761, Morrissey Affidavit, para. 21; note that once prostitution is forced, it is considered “sexual exploitation” 143 J.A.R., Vol. 34, Tab 78, p. 9761, Morrissey Affidavit, para. 22; J.A.R., Vol. 35, Tab 86, p. 10393, Ramos Affidavit, para. 13: “Most of the indoor venues that I took part in investigating had a high proportion of off shore human trafficking.” J.A.R., Vol. 37, Tab 94, p. 10870, Weinberg Affidavit, para. 8: an investigation of a bawdy house where Asian women were found, whose passports had been taken away by the people who brought them into Canada. 144 J.A.R., Vol. 35, Tab 83, p. 10248-10249, Holm Affidavit, para. 23-24. J.A.R., Vol. 34, Tab 78, p. 9759, Morrissey Affidavit, para. 13; J.A.R., Vol. 34, Tab 78, pp. 9760-9761, Morrissey Affidavit, para. 20-23; J.A.R., Vol. 35, Tab 84B, pp. 10283-10284, Cowan Affidavit, Exhibit “B” “Synopsis of Human Trafficking Investigations”. 145 J.A.R., Vol. 40, Tab 102, p. 11412, Poulin Affidavit, para. 87 146 S.J.A.R., Vol. 1, Tab 175, pp. 26398-99, Answers to Undertakings of Richard Poulin, Q. 2 26

147 being other prostitutes and pimps. Other factors may add to the difficulty in exiting from prostitution, including:

• threats by pimps to tell their family and friends that they are prostitutes;148 • large “exit fees” charged by pimps;149 • threats of violence;150 • drug addictions;151 • low self-esteem;152 • dependence of prostitutes on their pimps for every little action including simple things like opening a bank account;153 and • the lack of other viable options for making a living.154 One study indicates that those who have entered a life of prostitution at a young age find it harder to exit, to earn a living and to succeed in a life outside of prostitution.155

vii) Prostitution and the debate about “choice” 63. There is an international debate, including in Canada, about whether individuals

156 become involved in prostitution by choice or whether they are victims. This Court is not obliged to reach a conclusion on this issue. The social science evidence, however, suggests that “choice” about entering and exiting prostitution is severely constrained by the factors set

147 J.A.R., Vol. 35, Tab 82, p. 10057, McCartney Affidavit, para. 15 148 J.A.R., Vol. 35, Tab 86, p. 10397, Ramos Affidavit, para. 27 149 J.A.R., Vol. 35, Tab 86, p. 10397, Ramos Affidavit, para. 27 150 J.A.R., Vol. 34, Tab 78, p. 9757, Morrissey Affidavit, para. 8 151 J.A.R., Vol. 34, Tab 81, p. 10015, Page Affidavit, para. 24: many of the prostitutes…have lifestyle challenges such as drug addictions…which make it hard for them to appear in court; J.A.R., Vol. 35, Tab 86, p. 10397, Ramos Affidavit, para. 27: pimps foster drug addictions to keep the girls involved in prostitution to feed their addictions. 152 J.A.R., Vol. 35, Tab 82, p. 10059, McCartney Affidavit, para. 21: “they start to resign themselves to believing that they are involved in a lifestyle which they are deserving of and from which there is no way out” 153 J.A.R., Vol. 35, Tab 82, p. 10059, McCartney Affidavit para 21 “Most prostitutes develop a sense of learned helplessness”; J.A.R., Vol. 35, Tab 84, p. 10269, Cowan Affidavit, para 19, “If prostitutes in this type of relationship want to leave their pimps . . . they will call us at all hours of the day and night, to discuss every single decision that they are about to make . . . because their pimps have trained the women to seek” approval for every step they take”; J.A.R., Vol. 33, Tab 77, pp. 7750-1, Affidavit of P.M. para 42. See also J. Auth., Vol. 3, Tab 51, Downey, supra where the Court, quoting from the Badgley Committee report, states “many of the young prostitutes either were ‘in love’ with their pimps, or were psychologically dependent upon them to such an extent that they could not conceive functioning without them.” 154 J.A.R. Vol. 33, Tab 71, p. 9670, Hodgins Affidavit, para. 40; J.A.R., Vol. 36, Tab 88, p. 10553, Joyal Affidavit, para. 26 155 S.J.A.R., Vol. 1, Tab 175J, pp. 26559-61, “Strolling Away” 27 out above – age of entry, pre-existing vulnerabilities, the role of pimps, addictions and trafficking. Two of the Applicants’ experts captured the internal paradox when they stated that prostitutes are “freely compelled”157 or that their choice is made in conditions that are not “of their own choosing”.158

4) Prostitution harms others a) Prostitution harms society at large

From my extensive work with fathers, mothers and other family members who have lost their young loved ones to prostitution, I believe that prostitution also harms this “silent population”. These families feel like their child has been abducted and they feel at fault.159 64. Police and experiential affiants also testified that children of prostitutes can be severely harmed by prostitution:

• Some grow up to become prostitutes, having grown up in an environment 160 where the sale of sex for money was considered to be normal;

• Indoor bawdy houses can be particularly harmful to children where the children 161 of prostitutes are exposed to their mothers having sex with johns;

• Some prostitutes are pressured to give up their children by their pimps, or find that their lifestyle does not permit them to care for their children and as a result they give up custody of their children either temporarily or permanently, and 162 their children become wards of the state. 65. In addition, expert evidence indicates that prostitution also harms society at large, because the normalization of sex for sale has the following negative effects:

• The commodification of intimate relationships between human beings;163 • The objectification of women, which undermines gender equity;164

156 J.A.R., Vol. 20, Tab 51AD, p. 5650, 67, 71, Lowman Affidavit, Exhibit “AD”, Ine Vanwesenbeeck, “Another Decade of Social Scientific Work ion Sex Work: A Review of Research, 1990-2000” 157 J.A.R., Vol. 9, Tab 36, pp. 2251 & 2266, Brock Transcript, Qs. 22 & 79 158 J.A.R., Vols. 22 & 23, Tabs 53 & 53J, pp. 6247, 6250 & 6716, Lowman Transcripts, Vol. 2, Qs. 1163, 1168 & Exhibit “10”, p. 76 159 J.A.R., Vol. 35, Tab 86, p. 10403, Ramos Affidavit, para. 51. 160 J.A.R., Vol. 33, Tab 73, p. 9689, Affidavit of J.S., para. 2; J.A.R., Vol. 35, Tab 85, p. 10288, Bowers Affidavit, para. 8: “I have seen entire families of women in the sex trade – one such family consisted of a mother and four daughters, one of which was only 11 years old.” 161 J.A.R., Vol. 35, Tab 84, p. 10268, Cowan Affidavit, para. 15 162 J.A.R., Vol. 33, TAB 72, pp. 9678 & 9682, Affidavit of T.D. paras. 2, 15; J.A.R., Vol. 33, Tab 73, pp. 9691-2 Affidavit of J.S. para 9 163 J.A.R., Vol. 40, Tab 102, pp. 11433-5, Poulin Affidavit, paras. 135-7; J.A.R., Vol. 52, Tab 116, pp. 15124-5, M. Sullivan Affidavit, paras. 102-3 164 J.A.R., Vol. 40, Tab 102, pp. 11434-5, Poulin Affidavit, paras. 136-7; J.A.R., Vol. 52, Tab 116, pp. 15124-5, M. Sullivan Affidavit, paras. 102-3 28

• The growth of the sex trade;165 • The higher possible risk of violence by johns towards the other women in their lives;166 and • The burden for regulating often falls to the municipal level and municipalities are ill-equipped to respond.167 b) Direct effects on neighbourhoods

[T]he impact of prostitution on communities is generally referred to in terms of “nuisance” to the community. For me, someone playing music too loud, partying late into the night or driving a car or motorcycle badly in need of a muffler – these are nuisances. Condoms and needles around schools, residents afraid to walk around their community at night for fear of being propositioned or assaulted, concerns for the safety of children – these things are much, much more than mere “nuisances” to residents in communities where street level prostitution moves in.168 66. Police and community affiants testified that prostitution harms neighbourhoods and communities. These harms go beyond excessive noise and traffic: residents are subject to physical violence, harassment and health risks from discarded sex and drug paraphernalia. In addition, residents suffer psychological harm from fear and a sense of a lack of safety, from daily encounters with the all-pervasive prostitution activities in their neighbourhoods and

169 around their own homes. These harms are documented by affiants in this case, as well as mayors, community leaders and police appearing before parliamentary committees dating back to at least 1982. Community members – including children – are accosted, harassed and solicited by those engaging (or wanting to engage) in prostitution because they are mistaken as prostitutes or johns.170 One of Canada’s affiants testified that a Grade Five Aboriginal girl

165 J.A.R., Vol. 55, Tab 119, p. 16055, Raymond Affidavit, paras. 52-3; J.A.R., Vol. 52, Tab 116, pp. 15105- 7, M. Sullivan Affidavit, paras. 57-62; J.A.R., Vol. 40, Tab 102, p. 11433, Poulin Affidavit, para. 135 166 J.A.R, Vol. 49 & 50, Tabs 113 & 113Q, pp. 14264-5 & 14586-14623, Farley Affidavit, paras. 127-131 & Exhibit “Q”, “Challenging Men’s Demand for Prostitution in Scotland: A Research Paper Based on Interviews with 110 Men who Bought Women in Prostitution” 167 J.A.R., Vol. 55, Tab 119, pp. 16053, Raymond Affidavit, para. 47; J.A.R., Vol. 52, Tab 116, pp. 15105-7, M. Sullivan Affidavit, paras. 57-62 168 J.A.R., Vol. 39, Tab 101A, pp. 11376-11377, Affidavit of Dennis St. Aubin (Aubin Affidavit), Exhibit “A” 169 J.A.R., Vol. 35, Tab 83, p. 10250, Holm Affidavit, para. 27. See generally, J.A.R, Vol. 39, Tabs 99-101 170 J.A.R., Vol. 39, Tab 99, p. 11200-11202, Affidavit of Cheryl Parrott (Parrott Affidavit), para. 37-43; J.A.R., Vol. 38, Tab 96, p. 10927, Quinn Affidavit, para. 9. See also House Committee, March 1982: J.A.R., Vol. 70, Tab 152R, p. 20804 (Committee Report); House Committee, September 1985: J.A.R., Vol. 72, Tab 155B, p. 21339 (John Crosbie, Min. of Justice); House Committee, October 1985: J.A.R., Vol. 72, Tab 155D, p.21441 (testimony of Howard McNutt, Downtown Halifax Residents’ Association); House Committee, 29 was offered money for sex on her way to school and later told her classmates that they could earn $30 for giving a man a blowjob.171

67. Community and police affiants testified that johns are often driving a car when

172 they troll for street prostitutes, and they often slowly and repeatedly circle around the block.

173 Some prostitutes will stand in the middle of the road to flag down cars, looking for johns.

174 Others will simply open car doors and jump inside to solicit. These problems are not limited to street prostitution; they are also caused by the presence of bawdy houses in residential neighbourhoods, and body rub parlours.175

E. THE LEGAL CONTEXT

1) IN CANADA a) Legislative History of the Criminal Code Provisions regarding Prostitution

68. Criminal offences regarding prostitution date back to before Confederation.

Since 1867, Parliament has repeatedly revisited its laws with regard to prostitution in order to address changing developments on this complex social issue. What follows is a brief summary of the legislative history of the offences now found in sections 210, 212 and 213; a more detailed history is included at Annex Two with extensive references to the record.

69. The procuring offences now found in s. 212 date back to before 1867. During the first half-century after Confederation, Parliament gradually expanded the scope of the procuring offences so that, by 1913, it protected all females regardless of age against the many forms of procuring now prohibited by s. 212. The “living on the avails” offence, originally

October 1985, J.A.R., Vol. 73, Tab 155F, p. 21554 (testimony of William Smeaton, Mayor of Niagara Falls); House Committee, December 2006: J.A.R., Vol. 82, Tab 164, p. 24939 (Subcommittee Report). 171 J.A.R., Vol. 38, Tab 96, p. 10928, Quinn Affidavit, para. 10 172 J.A.R., Vol. 39, Tab 99, p. 11206, Parrott Affidavit, para. 55-56; J.A.R., Vol. 38, Tab 96, p. 10927, Quinn Affidavit, para. 9 173 J.A.R., Vol. 39, Tab 99, p. 11206, Parrott Affidavit, para. 54 174 House Committee, June 1982: J.A.R., Vol. 69, Tab 152(H), p. 20541 (testimony of Wayne Thomson, Mayor of Niagara Falls) 175 J.A.R., Vol. 39, Tab 99, pp. 11212-11213, Parrott Affidavit, para. 68-70 30 a part of the vagrancy law, was brought into the procuring section in 1913 and made subject to the same penalty as the other forms of procuring.

70. Legislation targeting all direct participants of prostitution in bawdy-houses – operators, prostitutes as well as johns – also predates Confederation. Originally part of the vagrancy law, statutory offences relating specifically to bawdy-houses were enacted over time to respond to growing concerns about these institutions. When being an inmate of a bawdy- house was made a separate offence in 1915, the Minister of Justice explained that one of its purposes was to facilitate the rehabilitation of prostitutes. The core elements of the bawdy- house offences have remained largely unchanged since the revisions in 1915.

71. While the procuring and bawdy-house offences have not been substantially amended in the past century, Parliament has repeatedly debated the best way of addressing the issue of solicitation in public places over the past four decades. Since the portions of the vagrancy law dealing with prostitution were repealed in 1972, the issue of solicitation in public places has been the subject of two amendments to the Criminal Code (in 1972 and 1985) and of reports by parliamentary committees (in 1982-83, 1989-90 and 2003-06).

72. Following several appellate decisions that interpreted the scope of the offence very narrowly, parliamentarians perceived the 1972 “solicitation” offence as no longer enforceable by the end of the decade. In 1982-83, the House of Commons Standing

Committee on Justice and Legal Affairs studied the issue and extensively canvassed the views of a wide variety of groups. Its recommendations were substantially adopted by Parliament in

1985 when it enacted the current “communication” offence and in 1987 when it enacted a number of amendments relating to sexual offences against children.

73. When the current “communication” offence was introduced in 1985, the Minister of Justice explained that its objective was to address the harms arising from solicitation in public places, primarily: noise, traffic, residents being accosted and harassed by prostitutes 31

and johns, and the exposure of children to prostitution as part of their daily routine. Legislators from all three major political parties recognized not only these harms but also the risk of violence and exploitation that all prostitutes face.

74. The end of this busy decade saw all three branches of government pronouncing on the communication offence. In May 1990, the Supreme Court dismissed constitutional challenges, based on sections 2(b) and 7 of the Charter, to the validity of now para. 213(1)(c)

(as well as s. 210). In October 1990, the House Standing Committee completed its review of the provisions and operation of s. 213 and reported to the House of Commons that it was not necessary to change the scope of the offence. In March 1991, the government agreed.

75. In 2003, the House Standing Committee studied the issue yet again. Its report emphasized the lack of consensus among its members and in society generally, not only about the measures that should be taken to address prostitution, but also the very nature of prostitution, its causes and effects. The House Standing Committee did not make any recommendations to repeal or replace any of the criminal offences relating to prostitution, nor did it provide any specific proposals to amend any of them.

76. See Annex Two for a more detailed legislative history of all of these prostitution- related offences, including the specific findings of the parliamentary studies. Also discussed is the work of non-parliamentary advisory groups such as the Fraser Report in 1985 and the intergovernmental working group’s report in 1998.

b) Enforcement by police and services for prostitutes

i) Enforcement of challenged provisions by police We rarely arrest or charge sex trade workers under s. 213 since we consider them to be victims of sexual exploitation and our priority with respect to them is to encourage them to exit prostitution.176 77. Police exercise their discretion in enforcing the existing laws related to prostitution. Police resources are limited, so often enforcement activity will be undertaken in 32

response to community complaints. In major cities, s. 213 is generally enforced through “john sweeps”, using undercover female police officers posing as prostitutes, followed by a sweep

177 with undercover male officers posing as johns. In this way, police are able to obtain direct evidence of the offer of sexual services in exchange for consideration - the basis of the s. 213 offence. These sweeps reduce the amount of prostitution in a given area for a period of time.

In Toronto, statistics confirm that the focus of enforcement of s. 213 is on johns, rather than on

178 prostitutes.

78. Det. Sgt. Howard Page with the Toronto Police Service states:179

Our priority in enforcing s. 213 is to target the johns. Once we arrest them, we find that some have criminal records, and some are violent sexual deviants. Arresting them helps protect the prostitutes from “bad dates” –- johns who assault, sexually assault or even murder prostitutes. In 51 Division, up to 30% of the johns try to traffic crack cocaine to the prostitutes rather then pay them money in exchange for the sexual service request. 79. Similarly, in Edmonton, Det. JoAnn McCartney and Det. Jim Morrissey state that the Edmonton Police Force engage in “compassionate enforcement”, only charging prostitutes under s. 213 in response to community complaints associated with activity near homes and schools, or in order to assist women wishing to exit prostitution.180

80. In Vancouver, police consider prostitutes to be “victims of sexual exploitation”.181

Charges under s. 213 are used as an enforcement tool to keep a prostitute away from her

176 J.A.R., Vol. 35, Tab 83, pp. 10244-10245, Holm Affidavit, para. 16 177 J.A.R., Vol. 34, Tab 81, p. 10010, Page Affidavit, para. 13, J.A.R., Vol. 35, Tab 86, p. 10402, Ramos Affidavit, para. 44 178 J.A.R., Vol. 34, Tab 81D, p. 10051, Page Affidavit, Exhibit “D”: sets out statistics for charges under s. 213 for men and women in Toronto in 2006, 2006 and 2007. For 2007, 186 women were charged and 508 men were charged. 179 J.A.R., Vol. 34, Tab 81, p. 10011, Page Affidavit, para. 15. Note that that some affiants have never been charged with any prostitution-related offences, such as Valerie Scott (see J.A.R., Vol. 4, Tab 17, p. 573, Scott Transcripts, Q. 44) 180 J.A.R., Vol. 35, Tab 82, p. 10056, McCartney Affidavit, para. 11; J.A.R., Vol. 34, Tab 78, p. 9763, Morrissey Affidavit, para. 31 181 J.A.R., Vol. 35, Tab 86, p. 10398, Ramos Affidavit, paras. 30 & 31; J.A.R., Vol. 35, Tab 83, p. 10244, Holm Affidavit, para. 16 33 pimp and the streets, to get her away from the prostitution environment and to help her exit prostitution.182

81. It is harder to obtain evidence and get convictions for bawdy house offences, and these investigations are resource intensive. As a result, most bawdy house investigations

183 are complaint driven. While charges and convictions for keeping a common bawdy house under s. 210 are small in number,184 the fact that bawdy houses are illegal enables the police to investigate bawdy houses, in situations where they suspect under-age prostitutes or

185 186 trafficked women are present, or other serious exploitation is taking place. “Without s.

210, there would be no ability for the police to investigate what is going on in strip clubs, where the sale of sex is common, and where women who may be forced into prostitution are often found.”187

82. Crown Attorney Renna Weinberg notes that to establish the offence of keeping a common bawdy house under s. 210(1), the Crown must prove control over the management of the establishment, and that many owners deliberately insulate themselves from the management of their establishment to avoid criminal liability.188 To prove an offence under s.

210(2)(c) against a manager, the Crown must prove that the manager was in control of the premises and knowingly permitted them to be used as a common bawdy house. This is often

182 J.A.R., Vol. 35, Tab 86, p. 10398, Ramos Affidavit, para. 29-30 183 J.A.R., Vol. 34, Tab 81, p. 10012, Page Affidavit, para. 17 184 J.A.R., Vol. 34, Tab 81D, p. 10050, Page Affidavit, Exhibit “D” 185 J.A.R., Vol. 34, Tab 78, p. 9761, Morrissey Affidavit, para. 22 186 J.A.R., Vol. 35, Tab 84, p. 10,268, Cowan Affidavit, para. 15, J.A.R., Vol. 34, Tab 81, p. 10,012, Page Affidavit, para. 17; J.A.R., Vol. 35, Tab 82, p. 10058, McCartney Affidavit, para. 17 187 J.A.R., Vol. 34, Tab 81, p. 10012, Page Affidavit, para. 18 188 J.A.R., Vol. 37, Tab 94, p. 10872, Weinberg Affidavit, para. 12. Amendments to the definition of “keeper” to try to address this problem are discussed in J. Auth., Vol. 3, Tab 47, R. v. Corbeil, [1991] 1 S.C.R. 830 (Corbeil) at p. 841-46 per L’Heureux Dubé J. (dissenting – the majority did not discuss this point). She explains that the definition has been gradually expanded “in response to a number of stimuli, including restrictive judicial interpretation, changes in the patterns of behaviour of that category of persons intended to fall under the offence provisions, and to discourage arguments of a technical or semantic nature. These amendments were designed, in my view, to support Parliament’s efforts to deal with a problem which it considered serious.” (at p. 846) 34 difficult to establish, and may require days of undercover surveillance by the police.189 This explains why there are relatively few convictions against owners or managers of common bawdy houses.190

83. Paragraph 212(1)(j) is “one of the main tools that police have to protect the women and girls who are often being exploited and in many cases, prostituted against their will, by pimps.”191 Det. Sgt. Page indicates that the Toronto police do not charge anyone with living on the avails unless it is an exploitative situation so a roommate or live in partner would not be charged unless they were in a parasitic relationship with the prostitute.192

84. The presumption in s. 212(3) that someone who is habitually in the company of a prostitute is living on the avails of prostitution enables police to intervene in a parasitic relationship between a pimp and a prostitute, without the co-operation of the prostitute who

193 may be afraid of or under the control of her pimp. While the Crown is still required to prove parasitism, this evidentiary presumption provides essential assistance in prosecuting pimps and distinguishes this offence from other generic offences such as assault.194

85. Police affiants expressed concern about any potential decriminalization of prostitution related offences, as their experience has been that these provisions are essential tools to assist prostitutes in exiting prostitution, identifying under-age prostitutes, identifying johns with a history of violence, investigating the trafficking of women and children, and limiting the amount of prostitution and its overt practice in residential neighbourhoods.195

189 J.A.R., Vol. 37, Tab 94, p. 10873, Weinberg Affidavit, para. 14-15 190 J.A.R., Vol. 37, Tab 94, p. 10873, Weinberg Affidavit, para. 15; J.A.R., Vol. 64, Tab 128B, p. 18,944, Wallace-Capretta Affidavit, Exhibit “B”. Note that statistics set out in the affidavit of Wallace-Capretta on s. 210 bawdy house cases are aggregate numbers and include all bawdy house related charges: keeping, managing, being a found-in and an inmate. 191 J.A.R., Vol. 34, Tab 81, p. 10013, Page Affidavit, para. 19 192 J.A.R., Vol. 34, Tab 81, p. 10013, Page Affidavit, para. 20 193 J.A.R., Vol. 37, Tab 94, pp. 10875-6, Weinberg Affidavit, para. 20 194 J.A.R., Vol. 37, Tab 94, pp. 10876-10878, Weinberg Affidavit, para. 21-22 195 J.A.R., Vol. 34, Tab 78, p. 9766, Morrissey Affidavit, para. 42: In my experience, the common bawdy house provisions in the Criminal Code are essential to the effective investigation of human trafficking offences. If these provisions did not exist, law enforcement would be left without an important tool in 35

86. Decriminalization may benefit a “small number of seasoned sex workers who have the knowledge, experience, street savvy and belief that they will be able to operate their

196 small ‘one woman show’ safely”. However, this would be at the expense of a much greater population of persons who benefit from the current laws. Law enforcement officers identified a number of serious harms which they believe would flow from decriminalizing prostitution:

• the number of women being required to prostitute themselves would drastically increase;197 • Canada would become a sex tourism destination, attracting pimps and johns;198 • prostitution may become viewed as a “career choice” and families in poverty may force their children to prostitute themselves to provide for food and shelter;199 • competition would increase, resulting in decreased price200 and potential increases in violence;201 • conflict and confrontations between prostitutes and community members would increase;202

investigating the trafficking of women and children for the purpose of prostitution; J.A.R., Vol. 37, Tab 91, p. 10683, Dizon Affidavit, para. 46: Without those offences, officers will be limited in their ability to maintain law and order and protect the sex workers themselves, as well as society in general”; J.A.R., Vol. 35, Tab 84, pp. 10270-10271, Cowan Affidavit, para. 22-23: if the offences of keeping a common bawdy house and living off the avails of prostitution were removed from the Criminal Code it would open the door to full out exploitation…without these provisions we would only be able to treat the symptoms of the larger problem, and not very effectively.; J.A.R., Vol. 35, Tab 86, p. 10404, Ramos Affidavit, para. 53: Decriminalization would take away the tools police officers use to help prostitutes and their families as these laws are an effective means of helping prostitutes; J.A.R., Vol. 35, Tab 85, p. 10304, Bowers Affidavit, para. 51: While investigation of inside venues of prostitution is difficult, it does occur, and at times exposes horrific acts. Without the kinds of prohibitions contained in sections 210 to 212 of the Criminal Code the police would be unable to respond to the sexual exploitation that occurs there.” “The exploitation that occurs in those venues would be completely unchecked and would increase enormously; J.A.R., Vol. 36, Tab 88, p. 10556, Joyal Affidavit, para. 37: The decriminalization of prostitution would effectively cut off entry points for law enforcement in assisting women in pursuing alternatives to the sex trade which, in my experience, almost all women would not enter into or remain if given the choice. 196 J.A.R., Vol. 37, Tab 91, p. 10682, Dizon Affidavit, para. 42 197 J.A.R., Vol. 35, Tab 82, p. 10060, McCartney Affidavit, para. 24, J.A.R., Vol. 34, Tab 81, p. 10017, Page Affidavit, para. 30 198 J.A.R., Vol. 35, Tab 82, p. 10060, McCartney Affidavit, para. 24; J.A.R., Vol. 35, Tab 84, p. 10274 Cowan Affidavit, para. 29 199 J.A.R., Vol. 35, Tab 82, p. 10060, McCartney Affidavit, para. 24; J.A.R., Vol. 35, Tab 85, p. 10287-8, Bowers Affidavit, para. 8 200 J.A.R., Vol. 35, Tab 84, p. 10274, Cowan Affidavit, para. 29 201 Re: competition between prostitutes for clients, see J.A.R., Vol. 35, Tab 82, p. 10060, McCartney Affidavit, para. 24, J.A.R., Vol. 35, Tab 85, pp. 10289-10290, Bowers Affidavit, para. 15; J.A.R., Vol. 34, Tab 78, p. 9760, Morrissey Affidavit, para. 19 202 J.A.R., Vol. 37, Tab 91, p.10685, Dizon Affidavit, para. 50(f); J.A.R., Vol. 35, Tab 85, p. 10293, Bowers Affidavit, para. 25 36

• it would “send the message that women are sexual commodities and that prostitution is harmless and safe or it would not be legal”;203 • criminal offences which are associated with prostitution activity would increase, including increased use of drugs;204 and • dangerous psychopaths and sexual predators would still find victims.205 ii) Police and their relationship with prostitutes 87. Assaults and other forms of violence against prostitutes are difficult to prosecute for many reasons. Often there is little identifying information, or prostitutes fear testifying for

206 fear of reprisals, making successful prosecutions difficult. Prostitutes are often reluctant to lay charges or testify against their pimps, given the exploitative nature of the pimp-prostitute

207 relationship and the fear of reprisals. Some prostitutes distrust the police or fear prosecution and will not report assaults for that reason.208

88. Prostitutes may also allege mistreatment or abuse of power by police officers. It is worth noting that some men impersonate police officers as a means of obtaining sexual services from prostitutes.209

89. The Special Victims Section of the Toronto Police Services was established

210 specifically to focus on crimes perpetrated against prostitutes. The goals of this unit are to investigate offences against prostitutes, assist the victims throughout the process, facilitate the arrest of the offender and assist the Crown attorney with the effective prosecution of the

203 J.A.R., Vol. 35, Tab 83, p. 10251, Holm Affidavit, para. 28 204 J.A.R., Vol. 37, Tab 91, p. 10685, Dizon Affidavit, para. 50; J.A.R., Vol. 35, Tab 85, p. 10303, Bowers Affidavit, para. 50 205 J.A.R., Vol. 35, Tab 83, p. 10251, Holm Affidavit, para. 28, J.A.R. Vol. 34, Tab 79, p. 9810, Cross- examination of Jim Morrissey (Morrissey Transcript), p. 40, lines 22-24 206 J.A.R., Vol.35, Tab 83, p. 10243, Holm Affidavit, para.12; J.A.R., Vol. 36, Tab 88, p. 10554, Joyal Affidavit, para. 30 207 J.A.R., Vol. 35, Tab 83, p. 10243, Holm Affidavit, para. 12; J.A.R., Vol. 35, Tab 84, pp. 10268-9, Cowan Affidavit, para. 18 208 J.A.R., Vol. 7 Tab 29, p. 1692. Mooney Affidavit, para. 21: Aboriginal women are less likely to seek help from police; J.A.R., Vol. 36, Tab 88, p. 10554, Joyal Affidavit, para. 30 209 J.A.R., Vol. 37, Tab 94, p. 10868, Weinberg Affidavit, para. 5: Crown prosecutor Renna Weinberg states that she has conducted two separate prosecutions of men presenting themselves to prostitutes as police officers and then sexually assaulting the prostitute 210 J.A.R., Vol. 37, Tab 91, p. 10671, Dizon Affidavit, para. 4 37

211 offender. Members of the unit develop one-on-one relationships with prostitutes on the street to gain a level of trust and awareness, and between 2004 and 2008, they were successful in arresting and/or prosecuting over 40 offenders and rescuing at least eighteen under-age prostitutes.212 This unit is highly regarded by prostitutes, including the Applicants’ affiants.213

90. However, it is acknowledged that there are still large numbers of assaults on prostitutes which are never reported, or which do not result in successful prosecutions. Police believe that assaults on off-street prostitutes are even more under-reported than those against street prostitutes, as the women are more hidden and less likely to have any relationship with the police.214

91. Police in various jurisdictions are working to gain the trust of prostitutes and to seek means to protect them from dangerous psychopaths and “bad dates”. In Toronto, the

Special Victims Section maintains and distributes a “bad date list” of johns who have

215 reportedly attacked prostitutes in the past. Some police forces ask prostitutes to voluntarily provide them with data and a hair sample (for DNA identification purposes) and contact information, to develop a registry and make it easier to trace them if they go missing.216 Many police forces put special efforts into trying to help under-age girls leave prostitution, and assist trafficked women who are being forced to work as prostitutes.217

211 J.A.R., Vol. 37, Tab 91, pp. 10674-75, Dizon Affidavit, para. 8 212 J.A.R., Vol. 37, Tab 91, p. 10680, Dizon Affidavit, para. 35 213 J.A.R., Vol. 4, Tab 17, p. 696-7, Scott Transcript, Qs. 702-3, p. 31, line 24; J.A.R., Vol. 6, Tab 25, p. 1494, Cross-examination of Kara Gillies, Q. 151 214 J.A.R., Vol. 35, Tab 82, p. 10058, McCartney Affidavit, para.17; J.A.R., Vol. 34, Tab 79, p. 9815, Morrissey Transcript, page 45, lines 15-27 – the girls on the inside are more secret than the ones on the street, and that much of what many would consider sexual assault would go unreported by prostitutes 215 J.A.R., Vol. 37, Tab 92, pp. 10729-30, Cross-examination of Eduardo Dizon (Dizon Transcript),Q.126-8 216 J.A.R., Vol. 37, Tab 92, pp. 10738-9, Dizon Transcript, Q. 15-5; J.A.R., Vol. 36, Tab 88, p. 10549, Joyal Affidavit, para. 17: Over 90% of the prostitutes they contacted voluntarily gave them DNA samples, photographs, etc. 217 J.A.R., Vol. 35, Tab 84, p. 10269, Cowan Affidavit, para. 19: Prostitutes who wish to leave abusive pimps are assigned to officers who will be available 24 hours a day to assist them. He has been involved in several human trafficking investigations: J.A.R., Vol. 35, Tab 84B, pp. 10283-10284, Cowan Affidavit, Exhibit “B” - “Synopsis of Human Trafficking Investigations” 38

92. Where individual police officers have gained the trust of prostitutes, they are called upon for assistance – to respond to a crime,218 to help women leave their pimps and forced prostitution,219 to help them seek medical care,220 or to give them a break from life on the street. Det. Jim Morrissey stated that he receives calls about once a month from prostitutes asking to be arrested to recover from fatigue, illness, addiction or to avoid threats made by other prostitutes, their pimps or johns.221

93. Det. Const. Ramos with the Vancouver Police Department stated that officers would regularly talk to prostitutes and check on their well-being to gain their trust, so that they

222 would see the police as their window to get out of prostitution. When the women were ready, they would set up meetings with social service agencies and arrange for transportation

223 to another city and safe housing to help them exit. Sometimes charges under s. 213 would be necessary to get under-age girls out of prostitution, and the conditions of release “gave them the ability and strength to say no and removed them from the negative influence of their pimps and took them to a more positive environment.”224

iii) Diversion for johns: John school From my experience…I have come to realize how entrenched many men are in their conduct in picking up prostituted persons – bordering on addiction – despite its destructive effect on their lives, particularly their relationships with friends, family and partners. 225

218 J.A.R., Vol. 33, Tab 76, pp. 9731-9736, Affidavit of K.C., para. 13-24: K.C. describes calling the Calgary police after being beaten by two pimps. They helped her and took her to a shelter. Their concern and care for her helped her to eventually exit prostitution, and they arranged for her to leave the city and stay at Servants Anonymous, and monitored the safety of her family who had been threatened by her pimp. 219 Ibid. 220 J.A.R., Vol. 36, Tab 88, p. 10552, Joyal Affidavit, para. 22 221 J.A.R., Vol. 34, Tab 78, p. 9763-9764, Morrissey Affidavit, para. 34 222 J.A.R., Vol. 35, Tab 86, p. 10399, Ramos Affidavit, para. 34 223 J.A.R., Vol. 35, Tab 86, p. 10399, Ramos Affidavit, para. 36 224 J.A.R., Vol. 35, Tab 86, p. 10401, Ramos Affidavit, para. 41. This is consistent with the legislative purpose identified by the Minister of Justice when the 1915 bawdy house provisions were debated, which was to permit the rehabilitation of the prostitutes. See Section E(1)(a) above of this factum, para. 70 225 J.A.R., Vol. 37, Tab 95, p. 10907, Affidavit of Dianna Gayle Bussey (Bussey Affidavit), para. 13 39

94. Diversion programs for johns exist in many cities across Canada.226 Their goal is to educate johns about the realities of prostitution and the harms it imposes on individuals and the community,227 and to discourage johns from re-offending.228

95. Johns can be diverted before or after charges are laid229 or attendance at John school may be part of their sentence.230 Participation in diversion programs is often limited to

231 first-time offenders with no criminal record. Participants pay a fee (between $300 and

$600), which covers program costs as well as costs for the diversion program for prostitutes.232 Successful completion of the program generally allows johns to avoid criminal conviction.233

96. The program is usually one full day, and sometimes additional hours of community service.234 As part of the program, offenders hear presentations which help them

226 Includes: Toronto: J.A.R., Vol. 37, Tab 94, pp. 10882-4, Weinberg Affidavit, paras. 31-33; J.A.R., Vol. 34, Tab 81, pp. 10008-9, Page Affidavit, para. 10; J.A.R., Vol. 33, Tab 67, p.9463, Falle Affidavit, para. 51; Vancouver: J.A.R., Vol. 35, Tab 83, pp. 10238-9, Holm Affidavit, para. 6; J.A.R., Vol. 35, Tab 86, p. 10402, Ramos Affidavit, para. 45; Winnipeg: J.A.R., Vol. 35, Tab 85, pp. 10297-8, Bowers Affidavit, paras. 36 and 37; J.A.R., Vol. 37, Tab 95, pp. 10903-10906, Bussey Affidavit, paras. 7-9; Edmonton: J.A.R., Vol. 34, Tab 78, p. 9764, Morrissey Affidavit, paras. 35 & 36; J.A.R., Vol. 38, Tab 96, p. 10931, Quinn Affidavit, para. 20; Ottawa: J.A.R., Vol. 39, Tab 99, p. 11187, Affidavit of Cheryl Parrot, para. 5 227 J.A.R., Vol. 37, Tab 94, p. 10884, Weinberg Affidavit, para. 33; J.A.R., Vol. 35, Tab 85, p. 10298, Bowers Affidavit, para. 38 228 J.A.R., Vol. 35, Tab 85, p. 10298, Bowers Affidavit, para. 38; J.A.R., Vol. 34, Tab 78, p. 9764, Morrissey Affidavit, paras. 35-36 229 J.A.R., Vol. 35, Tab 85, p. 10298, Bowers Affidavit, para. 37 230 J.A.R., Vol. 35, Tab 85, p. 10298, Bowers Affidavit, para. 37 231 J.A.R., Vol. 37, Tab 94, p. 10883, Weinberg Affidavit, para. 32. Offenders may also be barred if they have a record of violence against women, sexual offences, or if they solicited a youth - J.A.R., Vol. 35, Tab 85, p. 10298, Bowers Affidavit, para. 37 232 $300 in Ottawa - J.A.R., Vol. 39, Tab 99, p. 11210, Affidavit of Cheryl Parrot, para. 64; $500 in Edmonton - J.A.R., Vol. 38, Tab 96, p. 10930, Quinn Affidavit, para. 18; $600 in Winnipeg - J.A.R., Vol. 35, Tab 85, p. 10298, Bowers Affidavit, para. 37; Fees assist with costs for prostitutes’ diversion programs: J.A.R., Vol. 33, Tab 67, p. 9465, Falle Affidavit, para. 54; J.A.R., Vol. 37, Tab 95, p. 10,910, Bussey Affidavit, para. 20 233 J.A.R., Vol. 37, Tab 94, p. 10883, Weinberg Affidavit, para. 32; J.A.R., Vol. 34, Tab 81, p. 10015, Page Affidavit, para. 23 234 One day in Toronto: J.A.R., Vol. 37, Tab 94, p. 10884, Weinberg Affidavit, para. 33, one day in Winnipeg: J.A.R., Vol. 35, Tab 85, p. 10298, Bowers Affidavit, para. 38, one day in Vancouver: J.A.R., Vol. 35, Tab 86, p. 10402, Ramos Affidavit, para. 45, additional five hours community service in Toronto: J.A.R., Vol. 34, Tab 81, p. 10014-15, Page Affidavit, para. 23. 40 understand the risks to them of buying sex, and the harms caused to prostitutes and to the community by their behaviour.235

97. Many johns say they wish they had known what they learned at john school before committing their offence.236 A UBC research study on the Vancouver program found that participants’ attitudes about prostitution were greatly affected by the program, and the rate

237 of re-offending was very small. In Edmonton, 92.5% of participants reported that their opinions had changed and they now believe prostitution to be inherently harmful;238 only 1-3% re-offended.239 In Ottawa, those in need of psychological help are fast-tracked into sexual disorder clinics to prevent them from going on to more serious crimes.240

iv) Diversion programs for prostitutes In 1992, I was convicted of communication for the purpose of prostitution but there were no diversion programs or exiting programs available to me at this time. I wish there would have been such diversion programs as I needed to find the strength and skills to exit prostitution.241 98. Diversion is offered to prostitutes who are arrested, and they may repeat the

242 course as often as they wish. In some situations, sometimes at the request of the

243 prostitute, police officers may charge prostitutes under s. 213 in order to get them into a diversion program to help them to get away from their pimp or from their drug addiction and

244 increase their chances of exiting prostitution. Participants can be referred to the program

235 J.A.R., Vol. 37, Tab 94, p. 10884, Weinberg Affidavit, para. 33 236 J.A.R., Vol. 39, Tab 99, p. 11211, Affidavit of Cheryl Parrot, para. 67 237 J.A.R., Vol. 35, Tab 86B, p. 10411, Ramos Affidavit, Exhibit “B”; Another study of the BC program, entitled “Attitude Change Following a Diversion Program for Men Who Solicit Sex”, found that the diversion program “appears to significantly change attitudes toward prostitution, toward prostituted women, and toward purchasing sexual services in male clients.”; This study is found in the J.A.R. Vol. 46, Tab 107C, p.13304, Kennedy Affidavit, Exhibit “C”. The study also notes that the Toronto John school program resulted in an attitude change and an increase in knowledge about the victims and the dangers associated with street prostitution – at p. 13,292 238 J.A.R., Vol. 38, Tab 96, p. 10931, Quinn Affidavit, para. 20 239 J.A.R., Vol. 34, Tab 78, p. 9764, Morrissey Affidavit, paras.35-6 240 J.A.R., Vol. 39, Tab 99, p. 11211, Affidavit of Cheryl Parrot, para. 66 241 J.A.R., Vol. 33, Tab 71, p. 9671, Hodgins Affidavit, para. 44 242 J.A.R., Vol. 39, Tab 99, p. 11210, Affidavit of Cheryl Parrot, para. 64 243 J.A.R., Vol. 34, Tab 78, pp. 9763-4, Morrissey Affidavit, para. 34 244 J.A.R., Vol. 35, Tab 82, p. 10056, McCartney Affidavit, para. 11; J.A.R., Vol. 33, Tab 75, pp. 9723-9724, Affidavit of L.B., para. 15-20 41 through the courts, Crown attorneys, defense lawyers, shelters, community centres or be self- referred.245 Once the program is completed, the charges are withdrawn or there is a reduced criminal sanction.246

99. Diversion programs across Canada range in duration from three days to four

247 248 weeks. They allow prostitutes to get to know community members and service providers,

249 to benefit from peer mentors and employment training programs, to participate in activities which help build their confidence and self-esteem250 and to get used to a lifestyle which does not involve prostitution and drugs.251 These programs offer personalized plans to help prostitutes understand and actively work on the issues that led them into prostitution, provide skills training and alternatives, and provide the necessary supports to exit.252

100. It is generally harder to persuade prostitutes to choose diversion than johns.253

Prostitutes may have previous convictions, may not have fixed addresses and may have lifestyle challenges like drug addiction which make it hard for them to appear in court. As a result, prostitutes often simply plead guilty and get a short custodial sentence rather than

254 attend diversion. This explains why prostitutes may receive a harsher sentence than johns

255 for a s. 213 offence. For those prostitutes who do attend, the programs are beneficial – in the Edmonton program, over half of those who participated were able to go on to successfully

245 J.A.R., Vol. 33, Tab 67, pp. 9463-4, Falle Affidavit, para. 52 246 J.A.R., Vol. 35, Tab 82, p. 10056, McCartney Affidavit, para. 12 247 3 days in Winnipeg: J.A.R., Vol. 35, Tab 85, p. 10299, Bowers Affidavit, para. 41, J.A.R., Vol. 37, Tab 95, p. 10910, Bussey Affidavit, para. 21, 4 weeks in Toronto: J.A.R., Vol. 33, Tab 67B, p. 9475, Falle Affidavit, Exhibit “B” 248 J.A.R., Vol. 35, Tab 85, p. 10300, Bowers Affidavit, para. 42; J.A.R., Vol. 37, Tab 95, p. 10910, Bussey Affidavit, para. 20. 249 J.A.R., Vol. 37, Tab 95, p. 10911, Bussey Affidavit, para. 22; J.A.R., Vol. 33, Tab 67B, p. 9475, Falle Affidavit, Exhibit “B” 250 Activities include: arts and crafts, sports, movies, crafts, games and spa treatments - J.A.R., Vol. 35, Tab 85, p. 10,300, Bowers Affidavit, para. 42, J.A.R., Vol. 37, Tab 95, p. 10910, Bussey Affidavit, para. 21 251 J.A.R., Vol. 37, Tab 95, p. 10911, Bussey Affidavit, para. 22, Participants receive presentations from police officers, a Crown attorney, addiction workshops, and health education on sexually transmitted infections. 252 J.A.R., Vol. 35, Tab 82, p. 10057, McCartney Affidavit, para. 13 253 J.A.R., Vol. 34, Tab 81, p. 10015, Page Affidavit, para. 24 254 J.A.R., Vol. 34, Tab 81, p. 10015, Page Affidavit, para. 24 42

256 exit prostitution. The time spent in the program separates prostitutes from the cycle of

257 prostitution and drugs, and gives them time to reflect. Diversion can also encourage prostitutes to pursue charges against their pimps.258

101. Dawn Hodgins who runs peer programs for prostitutes in Edmonton states

“many former prostitutes have told me of their belief that if it wasn’t for being charged with a prostitution offence, they would still be prostitutes or they would be dead.”259 L.B. stated that she would never have been able to leave drugs and prostitution on her own, but for the intervention of a police officer who, by charging her under s. 213, was able to direct her to a

260 diversion program.

102. The Criminal Code provisions and the diversion programs which have been established for prostitutes and johns provide an essential entry point for law enforcement agencies and community groups “to educate and hold accountable sexual exploiters and to assist persons trapped in prostitution. It is crucial to provide links to the necessary resources and support networks and diversion programs… are one way to accomplish this objective.”261

2) THE LEGAL CONTEXT – International Regimes and Experience regarding Prostitution a) Overview

103. Canada tendered expert evidence as to the experience of different jurisdictions around the world that have decriminalized, at least in part, their legal regimes with regard to prostitution. The jurisdictions addressed are those thought to be of greatest interest to the

Court – the Netherlands, Sweden, Germany, Australia, New Zealand and Nevada.

255 J.A.R., Vol. 37, Tab 94, p. 10882, Weinberg Affidavit, para. 30 256 J.A.R., Vol. 35, Tab 82, p. 10054, McCartney Affidavit, para. 3 257 J.A.R., Vol. 35, Tab 85, p. 10294, Bowers Affidavit, para. 29; J.A.R., Vol. 33, Tab 67, p. 9465, Falle Affidavit, para. 55 258 J.A.R., Vol. 33, Tab 67, p. 9465, Falle Affidavit, para. 56 259 J.A.R., Vol. 33, Tab 71, p. 9675, Hodgins Affidavit, para. 55; J.A.R., Vol. 34, Tab 78, p. 9763, Morrissey Affidavit, para. 33; J.A.R., Vol. 33, Tab 74, p. 9713-9714, Affidavit of H.C., paras. 24-25: H.C. states that she left the sex trade after being arrested for being an inmate in a common bawdy house, and if she hadn’t been charged she would have probably ended up dead. 260 J.A.R., Vol. 33, Tab 75, pp. 9723-9724, Affidavit of L.B., para. 15-20 43

104. This expert evidence has not been tendered as suggested by the Applicants262 only to meet Canada’s s. 1 onus, should that be necessary. Rather, this expert evidence was also tendered to demonstrate that prostitution entails an inherent risk of harm not only regardless of venue, but also regardless of legal regime in which it is conducted. There is a spectrum of different legal regimes around the world for responding to prostitution. They range from full criminalization, to partial decriminalization and regulation.

105. It is useful to note that there is no jurisdiction that has completely decriminalized

263 prostitution. As an example, it remains against the criminal law to procure minors for the

264 purposes of prostitution in all jurisdictions reviewed. In addition, there is no jurisdiction that has decriminalized and not, in turn, legalized and regulated prostitution. Decriminalization

265 without regulation as a legal response to prostitution is a myth.

106. Finally, the experience of these different jurisdictions with their new regimes demonstrates that not all of the intended positive objectives of the amendments have been met, and that many have delivered unintended negative outcomes.266

b) Summary of different regimes

i) Netherlands 267 107. The Netherlands amended its legal regime with regard to prostitution in 2000.

Up until then, the Dutch Criminal Code had not prohibited the selling of sex but only the

261 J.A.R., Vol. 38, Tab 96, p. 10937, Quinn Affidavit, para. 33 262 See Applicants’ Factum at para. 21 263 J.A.R., Vol. 40, Tab 102, pp. 11428-9, Poulin Affidavit, para. 124 264 See for example: The Netherlands - J.A.R., Vol. 47, Tab 110C, p. 13571, Dr. van de Pol Affidavit, Exhibit “C”; J.A.R., Vol. 47, Tab 110, pp. 13500 & 13518, Dr. van de Pol Affidavit, paras. 7 & 50; New Zealand - J.A.R., Vol. 62, Tab 125B, pp. 18092-93, Pratt Affidavit, Exhibit “B”, ss. 20-23; Australia - J.A.R., Vol. 52, Tab 116, pp. 15093-98, M. Sullivan Affidavit, paras. 27-37; Germany - J.A.R., Vol. 57, Tab 119R, pp. 16744-46, Exhibit "R" to the Affidavit of Janice Raymond, p. 54-56; Sweden - J.A.R., Vol. 57, Tab 119S, p. 16774, Raymond Affidavit, Exhibit "S" 265 J.A.R., Vol. 55, Tab 119, p. 16053, Raymond Affidavit, para. 46 266 J.A.R., Vols. 55 & 56, Tabs 119 & 119H, pp. 16054, & 16519-37, Raymond Affidavit, para. 49 & Exhibit “H” “Ten Reasons for Not Legalizing Prostitution and a Legal Response to the Demand for Prostitution”; J.A.R., Vol. 47, Tabs 110 & 111, pp. 13535, 13719 & 13726, Dr. van de Pol Affidavit, paras. 90 and Supplementary Dr. van de Pol Affidavit (Dr. van de Pol Suppl. Affidavit), para.19 & 42, J.A.R., Vol. 52, Tab 44 running of brothels or the organization of prostitution for the purpose of profiting from it, in

268 other words, pimping. The real legal regime, however, was the much misunderstood

“gedogen”, or regulated tolerance,269 whereby the criminal law relating to prostitution was rarely enforced. By the late 1970’s, concerns were growing about the presence of hard drugs, criminal gangs, the prevalence of non-Dutch prostitutes and pimps, the increase of the sex

270 industry and fears that the police had “lost their grip on the Red Light District”. This gave rise to calls for a new legal regime to try to regulate and control the sex trade.271

108. The amendments in 2000 lifted the ban on brothels, decriminalized pimping272 and recognized prostitution as a legitimate form of work entitling those engaged in it to “rights,

273 status and protection of normal work”. In turn, the amendments gave Dutch municipalities unprecedented powers to regulate and control the sex trade, by licensing brothel owners, requiring prostitutes to have official European Union work permits, to be over 18 years old, to

274 pay taxes and to comply with health and safety regulations. In short, the objective of the new regime was to: 275

take prostitution out of a criminal context, and to provide more tools to fight against abuses in prostitution, in the form of exploitation of prostitutes by pimps, coerced prostitution, the prostitution of minors and of illegal immigrants as well as the trafficking of prostitutes.

116, pp. 15085 & 15121, M. Sullivan Affidavit, paras. 2-4 & 93; J.A.R., Vol. 40, Tab 102, pp. 11387-8, 11403, 11417, 11435, 11427-8 & 11432, Poulin Affidavit, paras. 27, 65, 99, 120-123, 132 & 138 267 J.A.R., Vol. 47, Tab 110, p. 13518, Dr. van de Pol Affidavit, paras. 49-50 268 J.A.R., Vol. 47, Tab 110, pp. 13514-15, Dr. van de Pol Affidavit, paras. 40-41 269 J.A.R., Vol. 47, Tab 110, pp. 13500 & 13528, Dr. van de Pol Affidavit, paras. 6 & 75-76 270 J.A.R., Vol. 47, Tab 110, pp. 13516-18, Dr. van de Pol Affidavit, paras. 44-47; S.J.A.R., Vol. 2, Tab 177, p. 26907, Answers on Written Examination, Q. 2 271 J.A.R., Vol. 47, Tab 110, p. 13500, Dr. van de Pol Affidavit, para. 6 272 As long as the pimping is not of minor or women coerced or trafficked into prostitution; see J.A.R., Vol. 47, Tab 110, p. 13518, Dr. van de Pol Affidavit, para. 50 273 J.A.R., Vol. 47, Tab 110, p. 13518, Dr. van de Pol Affidavit, para. 50 274 J.A.R., Vol. 47, Tab 110, pp. 13500 & 13528-29, Dr. van de Pol Affidavit, paras. 7 & 76-78; J.A.R., Vol. 47, Tab 110C, p. 13571-72, Dr. van de Pol Affidavit, Exhibit “C”, Dutch Policy on Prostitution 275 J.A.R., Vol. 47, Tab 110, pp. 13518 & 13501, Dr. van de Pol Affidavit, paras. 50 & 11 45

109. Initial assessments of the new regime were cautiously optimistic in terms of the licensed sector,276 but concerns were expressed that the consequent creation of an unlicensed or illegal sector could make prostitutes working in that sector (minors, those without work

277 permits or trafficked individuals) even more vulnerable to exploitation. By 2007, a Ministry of

Justice report concluded that, for the licensed sector, there were “no significant improvements: in labour relations and a decline in the “emotional well-being” of prostitutes along with an increase in use of sedatives”.278

110. In 2007, a Report of the Special Rapporteur for the United Nations, on her mission to the Netherlands, raised other concerns:

• Violence against women in prostitution “remains a significant problem”; with women facing a substantial risk;279 • More than half of the prostitution business is probably unlicensed where “working conditions of prostitutes tend to be much worse”;280 • Some women appear to have shifted to the “grey”, unregulated sector to avoid taxation or overly intrusive municipal regulation;281 • “It is still very apparent that the sex sector is organized by men for men”;282 • “Women who operate independently of male pimps are still the exception, not the norm”;283 • Trafficking in women remains a problem, with 405 reported cases in 2004, most relating to sexual exploitation of women;284 and • Minors are being trafficked into sexual exploitation as well.285

276 J.A.R., Vol. 47, Tab 110, p. 13519, Dr. van de Pol Affidavit, para. 53; see also J.A.R., Vol. 48, Tab 112A, p. 13915, Written Questions on the Dr. van de Pol Affidavit, A.L. Daalder, “Lifting the ban on brothels: Prostitution in 2000-2001, p. 47 (the first Daadler Report) 277 J.A.R., Vol. 48, Tab 112A, p. 13918-9, Daalder Report (2002), the first one, pp. 50-1 278 J.A.R., Vol. 47, Tab 110D, pp. 13591-92 & 13645, Dr. van de Pol Affidavit, Exhibit “D”, Daalder Report (2007) (the second Daalder Report) 279 J.A.R., Vol. 47, Tab 110E, pp. 13678-79, Dr. van de Pol Affidavit, Exhibit “E”, Report of Special Rapporteur (2007), paras. 67 & 70 280 J.A.R., Vol. 47, Tab 110, pp. 13521, 13501 & 13525, Dr. van de Pol Affidavit, paras. 56, 11 & 66; J.A.R., Vol. 47, Tab 110E, pp. 13681-82, Dr. van de Pol Affidavit, Exhibit “E”, Report of Special Rapporteur (2007), paras. 80-83 281 J.A.R., Vol. 47, Tab 110E, p. 13681, Dr. van de Pol Affidavit, Exhibit “E”, Report of Special Rapporteur (2007), paras. 82 282 J.A.R., Vol. 47, Tab 110E, p. 13682, Dr. van de Pol Affidavit, Exhibit “E”, Report of Special Rapporteur (2007), para. 84 283 J.A.R., Vol. 47, Tab 110E, p. 13682, Dr. van de Pol Affidavit, Exhibit “E”, Report of Special Rapporteur (2007), para. 84 284 J.A.R., Vol. 47, Tab 110E, p. 13678, Dr. van de Pol Affidavit, Exhibit “E”, Report of Special Rapporteur (2007), para. 67 46

111. Most recently, the new regime is starting to be perceived as a failure286 recognized as not having delivered its intended positive effects, but having delivered

287 “unintended negative side effects”. A 2008 report of the Netherlands National Prosecutors

Office (Beneath the Surface) expressed dismay that a criminal gang of around 35 suspects had taken root in the licensed sector in 5 different Dutch cities over several years, and terrorized as many as 120 licensed prostitutes by forcing them to earn “high targets every day”,288 hand over their money, decide what breast implant operations they would undergo,

289 and when their pregnancies would be aborted. The Foreword to Beneath the Surface states: 290

The abolition of the general ban on brothels has not resulted in a prostitution sector free of abuses. Checks and monitoring of prostitution are no guarantee that women are not working under duress. Criminal investigation has revealed threats, violence, fear and dependence. The idea that a clean, normal business sector has emerged is an illusion. In the licensed window prostitution sector in the red-light district of Amsterdam, Alkmaar and Utrecht, human traffickers, pimps and bodyguards had free reign for years. 112. Although there has been no public outcry to repeal the new regime,291 two separate sets of amendments have already been introduced in the Dutch legislature, although

292 not enacted. The City of Amsterdam has taken steps to spend millions to gentrify its Red

293 Light District to reclaim it from prostitution for art galleries, cafes and apartments. The City

285 J.A.R., Vol. 47, Tab 110E, p. 13678, Dr. van de Pol Affidavit, Exhibit “E”, Report of Special Rapporteur (2007), para. 68 286 J.A.R., Vol. 47, Tab 111, p. 13726, Dr. van de Pol Suppl. Affidavit, para. 42; see also S.J.A.R., Vol. 2, Tab 177, pp. 26908 & 26918, Answers on Written Examination, Qs. 3 & 16 287 J.A.R., Vol. 47, Tab 110E, p. 13681, Dr. van de Pol Affidavit, Exhibit “E”, Report of Special Rapporteur (2007), paras. 80-81 288 J.A.R., Vol. 47, Tab 111D, p. 13839, Dr. van de Pol Suppl. Affidavit, Exhibit “D”: Beneath the Surface (2008), p. 9 289 J.A.R., Vol. 47, Tab 111D, pp. 13851, 13834, 13849, 13843 & 13847, Dr. van de Pol Suppl. Affidavit, Exhibit “D”, Beneath the Surface (2008), pp. 21, 4, 19, 13 & 17 290J.A.R., Vol. 47, Tab 111D, p. 13831, Dr. van de Pol Suppl. Affidavit, Exhibit “D”, Beneath the Surface (2008) 291 S.J.A.R., Supp. Vol. 2, Tab 177, p. 26906, Answers on Written Examination, Q. 1 292 J.A.R., Vol. 47, Tab 111, pp. 13722-24, Dr. van de Pol Suppl. Affidavit, paras. 30-35 293 J.A.R., Vol. 47, Tab 111, pp. 13719-22, Dr. van de Pol Suppl. Affidavit, paras. 20-26; J.A.R., Vol. 47, Tab 110, p. 13530, Dr. van de Pol Affidavit, para. 80; S.J.A.R., Vol. 2, Tab 177, p. 26918, Answers on Written Examination, Q.16 47

294 is now the largest owner of premises in the Red Light District. In addition, other cities have

295 closed or restricted their street-walking zones. This is all in response to conclusions that, in spite of the new regime:

• “Coercion of and violence against prostitutes is by no means restricted to the unregulated sector”;296 • Prostitution inspectors in the window-prostitution, or licensed sector, in the three cities of Amsterdam, Utrecht and Alkmaar estimate that “the percentage of women working against their will is 50-90%”;297 • There is “continuing entanglement between prostitution with organized crime and money laundering”;298 • Prostitutes have complained “that the disadvantages – registration and payment of taxes – are not off set by the advantages such as being able to open a bank account or deduct expenses from their tax bills. Hardly any of them has a proper contract as an employee, which means that they are not entitled to social benefits. Many complain of earning less than they had before”;299 and • “Confusion is rife regarding prostitution policy and related legislation – not only among citizens and implementing officials, but also higher up in management. This lack of clarity is partially fuelled by the lack of uniformity that comes with decentralized policy. Conversely, a lack of clarity leads to differences in policy implementation.”300 ii) Sweden 113. In 1999, Sweden enacted a different legal regime altogether, introducing a “legal

301 alternative to decriminalizing prostitution and the sex industry”. The Act on Violence Against

Women:302

• criminalizes the buying of sex by johns and the selling of sex by pimps, but decriminalizes the selling of sex by prostitutes;303

294 S.J.A.R., Supp. Vol. 2, Tab 177, pp. 26917-8, Answers on Written Examination of Dr. van de Pol, Q. 16 295 J.A.R., Vol. 47, Tab 111, pp. 13721-22, Dr. van de Pol Suppl. Affidavit, paras. 27-29, S.J.A.R. Vol. 2, Tab 177, p. 26906, Answers on Written Examination, Q. 1 296S.J.A.R., Vol. 2, Tab 177, p. 26914, Answers on Written Examination of Dr. van de Pol, Q. 10 297 J.A.R., Vol. 47, Tab 111D, pp. 13837 & 13853, Dr. van de Pol Suppl. Affidavit, Exhibit “D”, Beneath the Surface (2008), pp. 7 & 23 298 S.J.A.R. Vol. 2, Tab 177, p. 26908, Answers on Written Examination, Q. 3; J.A.R., Vol. 47, Tab 111, pp. 13725-6, Dr. van de Pol Suppl. Affidavit, paras. 41-42; J.A.R., Vol. 47, Tab 110, p. 13524, Dr. van de Pol Affidavit, para. 65 299 S.J.A.R. Supp. Vol. 2, Tab 177, pp. 26911-2, Answers on Written Examination, Q. 7 300 J.A.R., Vol. 47, Tab 111D, p. 13838, Dr. van de Pol Suppl. Affidavit, Exhibit “D”, Beneath the Surface (2008), p. 8 301 J.A.R., Vol. 55, Tab 119, p. 16061, Raymond Affidavit, para. 68 302 J.A.R., Vol. 55, Tab 119, p. 16062, Raymond Affidavit, para. 69 48

• provides women with resources to choose alternatives to prostitution;304 • recognizes that demand is the engine that drives prostitution and sex trafficking;305 and • promotes gender equality;306 all on the premise that:307

In Sweden, prostitution is regarded as an aspect of male violence against women and children. It is officially acknowledged as a form of exploitation of women and children that constitutes a significant social problem…harmful not only to the individual prostituted woman or child, but also to society at large. 114. Reports on the new legal regime in Sweden indicate that it has resulted in:

• An estimate of a 40 percent decrease in street prostitution;308 • A decrease in the number of men buying sexual services and recruitment of women into prostitution;309 • One organization that provides services for women in prostitution reporting that, of the 130 persons they had worked with between 2002 and 2004, 60% had left prostitution permanently;310 • An acknowledgment by Swedish police (initially opposed to the new legal regime) that it has become an important tool in their fight against organized crime and trafficking;311 • The Swedish National Rapporteur on Trafficking at the National Criminal investigation Department reporting that Sweden appears to be the only country in Europe where there has been no substantial increase in sex trafficking,312 concluding in 2004 that the law “continues to function against the establishment of traffickers in Sweden”;313 • An acknowledgement by Sweden’s Working Group on the Legal Regulation of the Purchase of Sexual Services of law enforcement problems with the regime. These problems include that law enforcement efforts have not targeted off- street prostitution because it is too resource-intensive. Furthermore, even though off-street prostitution constitutes the largest part of the sector, it is

303 J.A.R., Vol. 55, Tab 119, p. 16061, Raymond Affidavit, para. 68; J.A.R., Vol. 57, Tab 119S, pp. 16774-5, Raymond Affidavit, Exhibit “S”, “Prostitution and Trafficking in Human Beings”, Swedish Ministry of Industry, Employment and Communications” 304 J.A.R., Vol. 55, Tab 119, pp. 16061-16062, Raymond Affidavit, paras. 68-9 305 J.A.R., Vol. 55, Tab 119, p. 16062, Raymond Affidavit, para. 69 306 J.A.R., Vol. 55, Tab 119, p.16062, Raymond Affidavit, para. 70 307 J.A.R., Vol. 57, Tab 119S, p. 16774, Raymond Affidavit, Exhibit “S”, p. 1 308 J.A.R., Vols. 55 and 57, Tabs 119 & 119X, pp. 16064 & 17047, Raymond Affidavit, para. 75 & Exhibit “X” (estimate of the Swedish National Rapporteur Kahjsa Wahlberg) 309 J.A.R., Vol. 55 and 58, Tabs 119 & 119S, pp. 16064 & 16774, Raymond Affidavit, para. 75 & Exhibit “S” 310 J.A.R., Vol. 55 and 57, Tabs 119 & 119V, pp. 16065 & 16867, Raymond Affidavit, para. 76 & Exhibit “V” 311 J.A.R., Vol. 55 and 57, Tabs 119 & 119V, pp. 16064 & 16859, Raymond Affidavit, para. 73 & Exhibit “V” 312 J.A.R., Vol. 55 and 57, Tabs 119 & 119 T-U, pp. 16062-3, Raymond Affidavit, para. 71 & Exhibits “T” & “U” 313 J.A.R., Vol. 55 and 57, Tabs 119 & 119V, pp. 16065 & 16864, Raymond Affidavit, para. 72 & Exhibit “V”; note that there has been no conclusive evidence of a decrease in the number of women trafficked into Sweden 49

difficult to get any evidence against clients and it remains hard to get evidence against pimps;314 and • The introduction of a similar legal regime in Norway as of November 20, 2008.315 iii) Germany 115. In contrast, Germany decriminalized aspects of prostitution as of 2002,

316 introducing an “Act Regulating the Legal Situation of Prostitutes”. The law decriminalized procuring for the purposes of prostitution, widened the basis on which brothels can be operated, and lifted the prohibition against promoting prostitution. This law was intended to regulate prostitution in order to improve “the conditions under which prostitutes work so as to benefit those women and men who voluntarily earn their living by prostitution”,317 and, by doing so, protect children from sexual exploitation, curb sex trafficking and control the expansion of the sex industry.318

319 116. The law mandated a review of the effects of the new regime three years later.

320 This review concluded that:

• “As regards improving prostitutes’ working conditions, hardly any measurable, positive impact has been observed in practice”; • “The Prostitution Act has not recognisably improved the prostitutes’ means for leaving prostitution”; and • “There are as yet no viable indications that the Prostitution Act has reduced crime.” 117. Other sources have concluded that:

314 J.A.R., Vol. 82, Tab 164, p. 24981, Report of the Subcommittee on Solicitation Laws (of the House of Commons Standing Committee on Justice and Human Rights, December 2006 315 J.A.R., Vol. 60, Tab 120, p. 17537, Cross-Examination of Dr. Janice Raymond (Raymond Transcript), Q. 240 316 J.A.R., Vols. 55 & 57, Tabs 119 & 119R, p. 16056, Raymond Affidavit, para. 56 317 J.A.R., Vol. 57, Tab 119R, p. 16716, Raymond Affidavit, Exhibit “R”, Report by the Federal Government on the Impact of the “Act Regulating the Legal Situation of Prostitutes”, p. 9; note that the entire report can be found at J.A.R., Vol. 60, Tab 121, pp. 17672-17752, Answers to Undertakings, Q. 2 318 J.A.R., Vols. 55 & 57, Tabs 119 & 119R, pp. 16057-8 & 16769, Raymond Affidavit, paras. 59, 58 & 61, Exhibit “R”, p. 79 319 J.A.R., Vol. 57, Tab 119R, p. 16713, Exhibit “R”, Report by the Federal Government on the Impact of the “Act Regulating the Legal Situation of Prostitutes”, p. 6 320 J.A.R., Vol. 57, Tab 119R, p. 16769, Exhibit “R”, Report by the Federal Government on the Impact of the “Act Regulating the Legal Situation of Prostitutes”,p. 79 50

• There are “about 400,000 prostitutes in Germany who offer services to more than one million clients daily” (Max Planck Institute);321 • Between 2002 and 2003, the annual amount estimated to be generated by prostitution in Germany was 7.5 billion US dollars, or 6.4 million euros;322 • The German Government has affirmed the existence of an increased child prostitution problem;323 • “Germany is a major country of destination for human trafficking for sexual exploitation and, due to its geographical position, it is also an important place of transit.” (2005 Transcrime Report prepared for the European Parliament);324 and • Germany has been characterized by a 2006 UN Report as a “very high” destination for victims in trafficking.325 iv) Australia 118. In Australia, jurisdiction over prostitution falls to the state or territorial level of

326 government. Jurisdiction over the trafficking of people into Australia for sexual servitude

327 falls to the federal government. Of Australia’s 8 states and territories, 6 have decriminalized aspects of prostitution, with each introducing different regulatory regimes for different venues which range from a legalised, highly regulated model to more of a decriminalized approach to

328 prostitution. In the two other jurisdictions, the practice of prostitution remains

329 330 criminalized. Contrary to the submissions of the Applicants, the state of Western

321 J.A.R., Vols. 55 & 57, Tabs 119 & 119O, pp. 16058 & 16700-1, Raymond Affidavit, para. 61 & Exhibit “O”, p. 2 322 J.A.R., Vols. 55, 57 & 60, Tabs 119, 119P & 121, pp. 16058, 16704 & 17770, Raymond Affidavit, para. 62 as elaborated on by Answers to undertakings, Q. 1, and Raymond Affidavit, Exhibit “P” 323 J.A.R., Vol. 60, Tab 120, p. 17546, Raymond Transcript, Q. 274 324 J.A.R., Vol. 58, Tab 119W, p. 17007, Raymond Affidavit, Exhibit “W”, Study on National Legislation on Prostitution and the Trafficking in Women and Children of the European Parliament, p. 113 325 J.A.R., Vols. 55 & 57, Tabs 119 & 119K, pp. 16057 & 16587, Raymond Affidavit, para. 58 & Exhibit “K”, UNODC Report on “Trafficking in Persons: Global Patterns”, p. 92 326 J.A.R., Vol. 52, Tab 116, p. 15090, M. Sullivan Affidavit, para. 17 327 J.A.R., Vol. 52, Tab 116, p. 15090, M. Sullivan Affidavit, para. 17 (considered a crime under the Slavery and Sexual Servitude Act 1999 and the Criminal Code Amendment (Trafficking in Person Offences Act 2005 328 J.A.R., Vol. 52, Tab 116, p. 15090, M. Sullivan Affidavit, para. 18 329 The States of South Australia and Western Australia; see J.A.R., Vol. 52, Tab 116, p. 15090, M. Sullivan Affidavit, para. 18 330 Applicants’ Factum at paragraph 332 51

Australia has not brought into effect a regime to decriminalize and regulate the practice of prostitution.331

119. In 1984, the State of Victoria was one of the first jurisdictions in the world to decriminalize prostitution and introduce a legal regime to regulate it. This model is based “on a

332 harms minimization approach”: While street prostitution remains illegal, licences can be issued for brothels and escort agencies, with one or two person brothels being exempt from

333 the licensing requirements. In the intervening 25 years since the regime was introduced, it has been amended eight different times to address problems that have arisen,334 but no recent official assessment of the regime has been carried out.335

120. Five other jurisdictions within Australia have followed suit, with each introducing a different combination of ongoing criminal prohibitions and new legal or regulating requirements. The State of Queensland introduced a licensing model like Victoria’s but with no licensing for escorts.336 The Northern Territory, in contrast, licenses independent and escort

337 prostitutes, but brothels remain illegal. The Australian Capital Territory introduced a different mix, partly decriminalized and partly legalized because some brothels are allowed without

338 licences, but street prostitution remains illegal. Tasmania has a partially legalized model but

339 one that is stricter than the Australia Capital Territory’s. Street prostitution remains illegal, but it is no longer an offence to “live off the earnings of prostitution”.340 Finally, New South

331 Only two short sections of The Act to decriminalize and regulate prostitution have been brought into force: see J.A.R., Vols. 31 & 32, Tab 65 & 65E, pp. 9099-102 & 9213, Weitzer Transcript, Qs. 430-440 & Exhibit “5” 332 J.A.R., Vol. 52, Tab 116, p. 15091, M. Sullivan Affidavit, para. 21 333 J.A.R., Vol. 52, Tab 116, pp. 15092-93, M. Sullivan Affidavit, paras. 24-27; J.A.R., Vol. 54, Tab 117, p. 15790, Cross-Examination of Dr. Mary Lucille Sullivan (M. Sullivan Transcript), Qs. 133-137 334 J.A.R., Vol. 54, Tab 117, p. 15790-1, M. Sullivan Transcript, Qs. 138-9 335 J.A.R., Vol. 54, Tab 117, p. 15791-2, M. Sullivan Transcript, Qs. 141-2 336 J.A.R., Vol. 54, Tab 117, pp. 15792-93, M. Sullivan Transcript, Q.144-9 337 J.A.R., Vol. 54, Tab 117, pp. 15793-4, M. Sullivan Transcript, Q.153-7 338 J.A.R., Vol. 52, Tab 116, p. 15095, M. Sullivan Affidavit, para. 35; J.A.R., Vol. 54, Tab 117, pp. 15794-5, M. Sullivan Transcript, Qs.159-61 339 J.A.R., Vol. 54, Tab 117, p. 15795, M. Sullivan Transcript, Qs.163-5 340 J.A.R., Vol. 52, Tab 116, pp. 15095-6, M. Sullivan Affidavit, para. 36 52

Wales introduced a regime that it is partly decriminalized – allowing for street prostitution and brothels without licences – but on compliance with planning laws of local municipalities.341

121. All of these regimes were introduced with the intention of bringing about a range of intended positive effects: 342

• To protect those working in it from violence and both prostitute and buyer, from disease; • To contain the highly visible and expanding street and brothel prostitution; • To protect against child prostitution and sex trafficking; • To eliminate the criminal element in prostitution;343 and • To minimize the undesirable impact of prostitution on communities. 122. Few empirical studies have been conducted of the impact of these different

344 regimes. There is evidence that, while the intended positive effects have not been achieved, the new regimes have brought about unintended negative effects:345

• There has been tremendous growth in the sector in response to an increase in demand and to normalization of the trade;346 • Legalization has given rise to an illegal sector that is much larger that the legal or licensed sector, with the legal sector constituting as little as 10% of the trade;347 • The health and safety literature prepared for those engaged in prostitution indicates that prostitution remains a dangerous activity, regardless of venue;348 • Child prostitution and sex trafficking do not appear to have diminished, and there are indicators that they may have been adversely affected;349 • Those engaged in organized crime have operated legal brothels for the purposes of laundering money;350

341 J.A.R., Vol. 52, Tab 116, pp. 15096-7, M. Sullivan Affidavit, paras. 37-8; J.A.R., Vol. 54, Tab 117, pp. 15795-6, M. Sullivan Transcript, Qs.167-70 342 J.A.R., Vol. 52, Tab 116, pp. 15097-98 & 15090, M. Sullivan Affidavit, paras. 40-41 & 20 343 See also S.J.A.R., Vol. 1, Tab 176, pp. 26609-854, Answers to undertakings of Dr. Mary Sullivan, Q. 3 344 J.A.R., Vols. 54 & 52, Tabs 117 & 116A3, pp. 15796, M. Sullivan Transcript, Q. 171; J.A.R., Vol. 52, Tab 116A.3, p. 15141, M. Sullivan Affidavit, Exhibit “A.3” 345 J.A.R., Vol. 52, Tab 116, p. 15098, M. Sullivan Affidavit, para. 42 346 J.A.R., Vol. 52, Tab 116, pp. 15099-15100, M. Sullivan Affidavit, paras. 43-46 347 J.A.R., Vol. 54, Tab 117, p. 15867, M. Sullivan Transcript, Q. 375 – to illustrate, there were 26 illegal brothels known to be operating in the municipality of Monash, a city of 161,000 people between 2002 and 2004 348 J.A.R., Vol. 52, Tab 116, pp. 15119-20, M. Sullivan Affidavit, paras. 88-92; J.A.R., Vol. 52, Tab 116A.14, p. 15239, M. Sullivan Affidavit, Exhibit “A.14” 349 J.A.R., Vol. 52, Tab 116, pp. 15115-17, M. Sullivan Affidavit, paras. 80-84 350 J.A.R., Vol. 52, Tab 116, pp. 15107-10, M. Sullivan Affidavit, paras. 63-68; J.A.R., Vol. 54, Tab 117, p. 15845-6, M. Sullivan Transcript, Qs. 316-7 53

• Now, little funding is available for organizations seeking to help prostitutes exit from the sector, given that the work is now legitimate;351 and • There has been a detrimental impact on the democratic rights of communities when they are forced to accept brothels in their neighbourhoods because they are legal even when a majority of residents oppose their establishment.352 v) New Zealand 123. In 2003, New Zealand decriminalized aspects of prostitution and introduced a

353 new legal regime to regulate prostitution through the Prostitution Reform Act 2003 (“PRA”).

The PRA decriminalized prostitution and introduced a certification regime for brothel

354 355 operators. The objectives of the PRA were to:

• “create a framework to safeguards the human rights of sex workers and protect them from exploitation; • promote the welfare and occupational health and safety of sex workers; • contribute to public health; • prohibit the use in prostitution of persons under 18 years”; as well as • “encourage street-based sex workers to work indoors”.356 124. This Act mandated the creation of a Prostitution Law Review Committee to review the operation of the new regime and report back to the Minister of Justice within 3 to 5 years. The Committee was specifically mandated to:

• assess the number of persons working as “sex workers” in New Zealand as soon as practicable after the commencement of the Act; • assess the impact of the Act on the number of persons working as “sex workers”; • assess the nature and adequacy of the means available to assist persons to avoid or cease working as “sex workers”; • consider whether any amendments are necessary or desirable; and • consider whether any further review or assessment is necessary or desirable.357

351 J.A.R., Vol. 52, Tab116A.4, pp. 15145, 15195 & 15204-5, M. Sullivan Affidavit, Exhibit “A.4”, excerpts from “Making Sex Work: a Failed Experiment with Legalized Prostitution” 352 J.A.R., Vol. 52, Tab 116, pp. 15105-7, M. Sullivan Affidavit, paras. 57-62; J.A.R., Vol. 54, Tab 117, pp. 15834-37, M. Sullivan Transcript, Qs.289-92 353 J.A.R., Vol. 62, Tab 125 & Tab 125B, pp. 18032 & 18080-18141, Pratt Affidavit, para. 11 & Exhibit “B” (In contrast to Australia, New Zealand only has one level of government.) 354 J.A.R., Vol. 62, Tab 125C, p. 18154, Pratt Affidavit, Exhibit “C” (Report of the Prostitution Law Review Committee on the Operation of the Prostitution Reform Act 2003 (“Report 2008”), Executive summary, p. 13 355 J.A.R., Vol. 62, Tab 125C, p. 18154, Pratt Affidavit, Exhibit “C”: Report 2008, Executive summary, p. 13 356 J.A.R., Vol. 62, Tab 125C, p. 18258, Pratt Affidavit, Exhibit “C”, Report 2008, p. 117 54

125. The Committee consisted of 11 members appointed by the Minister of Justice,

358 including three nominated by the New Zealand Prostitutes Collective. They commissioned two empirical studies, qualitative and quantitative, three literature reviews and, in their report, relied on two separate sets of estimates on the size (i.e. baseline) of the sex industry in 2003, the year that the new Act came into effect. The first was a telephone survey that canvassed police for their insight on prostitution in their area. The second was an audit undertaken by the

New Zealand Prostitutes’ Collective on the number of advertisements published for sexual services in the cities of Wellington and Auckland.359

360 126. The Committee delivered its report to the Minister of Justice in May of 2008. It concluded that:

• The PRA has had little impact on the number of people working in the sex industry, nor has it led to an increase in minors becoming involved in prostitution – the Committee endorses the findings of one of its commissioned studies that only 1.3% of those engaged in prostitution are minors; • The PRA has improved the health and safety practices of those engaged in prostitution, with a significant minority of those engaged in prostitution of the view that violence from clients had decreased; • There had been some (not universal) improvement in the employment conditions of those engaged in prostitution; • Only 4.3% of the prostitutes interviewed (28 of 656 women) said that they were made to work for someone, but the Committee recognized “the difficult nature of proving coercion” [..] as well as the reluctance on the part of exploited people to lay a complaint. However, information received by the Committee suggests coercion is not widespread. The Committee also acknowledges that sex work is a job some people have chosen and are happy doing.”361 • Most territorial authorities have no problems with prostitution in their districts having received few complaints, but the Committee acknowledged that upset had been caused to local communities by street prostitution;362

357 J.A.R., Vol. 62, Tab 125, pp. 18032-3, Pratt Affidavit, paras. 12-14 358 J.A.R., Vol. 62, Tab 125, p.18032, Pratt Affidavit, para. 12 359 J.A.R., Vols. 62 & 63, Tabs 125, 125D, 125E & 125F, pp. 18034-5, 18319-531, 18532-630 & 1863099, Pratt Affidavit, paras. 16-17, & Exhibits “D”, “E” & “F” 360 J.A.R., Vol. 62, Tab 125 & Tab 125C, pp. 18033 & 18142-318, Pratt Affidavit, para. 15, & Exhibit “C” (“Report 2008”) 361 J.A.R., Vol. 62, Tab 125C, p. 18304, Pratt Affidavit, Exhibit “C”, Report 2008, p. 162 362 J.A.R., Vol. 62, Tab 125, pp. 18036-7, Pratt Affidavit, para. 22 55

• The Committee expressed great concern that it appeared that “there are still some managed sex workers who are being required by brothel operators to provide commercial sexual services against their will on occasion”;363 and • The Committee found that the majority of prostitutes interviewed felt that the PRA could do little about violence that occurred in the sector.364 127. Dr. John Pratt, an eminent criminologist at the Victoria University of Wellington,

New Zealand, and an expert in research methodology (with no claim to any expertise in prostitution in New Zealand) testified on behalf of Canada that the Committee did not have a sufficient basis upon which to reach the conclusions it posited in its Report due to significant shortcomings in the research it relied on: 365

(1) the Committee erroneously states that the Prostitution Reform Act 2003 has had little impact on the numbers of people working in the sex industry: we simply cannot say whether it has or has not on the basis of the research on which it makes such claims; (2) the Committee makes conclusions on the extent to which health and safety issues and other aspects of sex workers’ employment conditions have been improved since decriminalization. Due to significant shortcomings in the research on which the Committee relied it is not possible to make these claims; and (3) the research undertaken for the Committee provides very little information about ‘best practice’ exit strategies for sex workers. 128. In his lengthy affidavit, Dr. Pratt explains these significant shortcomings in detail, by applying the principles of research methodology.366

129. Dr. Pratt was asked one question in writing in response to his expert affidavit.

This was whether he would modify his views in light of a subsequent, 2009 study done by one of the researchers who had prepared one of the reports commissioned by the Committee. In response, Dr. Pratt concluded that, as of 2009, there was social science evidence rigorous enough to allow a researcher to conclude that, in the one city of Christchurch, there had been no increase in the number of street prostitutes before and after the time that the PRA had been

363 J.A.R., Vol. 62, Tab 125C, p. 18155, Pratt Affidavit, Exhibit “C”, Report 2008, p. 14 364 J.A.R., Vol. 62, Tab 125C, p. 18155, Pratt Affidavit, Exhibit “C”, Report 2008, p. 14 365 J.A.R., Vol. 62, Tab 125, pp. 18031-2 Pratt Affidavit, para. 10 366 J.A.R., Vol. 62, Tab 125, pp. 18027-18066, Pratt Affidavit, paras. 1-97 56

introduced. The flipside of this conclusion is that, contrary to one of the objectives of the PRA, there had been no decrease in the number.367

vi) U.S.A. (Nevada) 130. In 1971, Nevada became the only state in the United States to decriminalize aspects of prostitution. Street prostitution remains illegal, but prostitution can now be legally conducted in licensed houses of prostitution in any state county with a population of less than

400,000. In effect, this means that prostitution remains illegal in the state’s two urban centres,

Las Vegas and Reno. The law leaves each of Nevada’s remaining 15 counties to determine the legal status of prostitution. One county, Eureka, neither prohibits nor permits brothels, but

10 other counties have chosen to permit brothels, with the state law again leaving scope for each to determine its own licensing procedures.368

131. State law requires prostitutes to use condoms during intercourse and oral sex. It also requires prostitutes working in brothels to be tested for sexually transmitted diseases every week and for HIV once a month. It is illegal to advertise in any county where prostitution is illegal. Finally, state law does not allow a john or a pimp to be convicted of procuring another person for prostitution on the testimony of the prostitute, unless the testimony is corroborated by other evidence.369

132. One 2005-2006 study that interviewed 45 women in Nevada’s legal brothels and others such as the police and former brothel employees, amongst others, suggested:370

• Legal prostitution comprises only about 10% of all prostitution in the state – most of it is illegal and takes place in Las Vegas; • There appears to be fluidity between the legal sector and the illegal sector, across a variety of venues;

367 J.A.R., Vol. 62, Tab 125C, pp. 18258, Pratt Affidavit, Exhibit C, Report 2008, p. 117 368 J.A.R., Vol. 32, Tab 65G, pp. 9311-9312, Weitzer Transcript, Exhibit “G”: “Prostitution and Trafficking in Nevada”, by Dr. Melissa Farley, December 2006, prepared for the Trafficking in Persons Offices of the United Stated Department of State, pp. 46-47 369 J.A.R., Vol. 32, Tab 65G, pp. 9313 Weitzer Transcript, Exhibit “G”: “Prostitution and Trafficking in Nevada”, p. 48 370 J.A.R., Vol. 32, Tab 65G, p. 9270-72, 9277, 9278, 9282, 9286-87 Weitzer Transcript, Exhibit “G”: “Prostitution and Trafficking in Nevada”, 57

• Advertising for prostitution in Nevada takes place on a massive scale; • The legalization of prostitution fosters ‘a prostitution culture’ that permeates the state; • Women in brothels are located in trailers in isolated areas, living in prison-like conditions; • The legalization of aspects of prostitution in Nevada has not diminished the stigma associated with it; • A significant majority of the women working in the Nevada brothels have been pimped into the brothels, often by pimps who are boyfriends, husbands or friends, and half of them reported that they had pimps; • Approximately a quarter of them had begun prostituting as children; and • A majority of the women in legal brothels have been transported from other states, and this may include being trafficked across national borders. c) Experience of these jurisdictions with their respective regimes

133. Canada’s experts have testified as follows about the experience of these other jurisdictions with regard their different legal regimes:

• There is no jurisdiction that has fully decriminalized. All those that have chosen to partially decriminalize have then regulated prostitution;371 • The legalization of prostitution, in effect, gives rise to an illegal sector that appears to be much larger than the legal sector;372 • Decriminalization and legalization spur growth in the prostitution sector, and this leads to an increase in child prostitution and sex trafficking;373 • There is little evidence that the lives of those engaged in prostitution are improved by legalization or that they thereby gain more autonomy over their working lives;374 and • The combination of decriminalization and legalization is a failed policy.375

371 J.A.R., Vol. 40, Tab 102, p. 11428, Poulin Affidavit, para. 124, J.A.R., Vol. 55, Tab 119, pp. 16052-3, Raymond Affidavit, paras. 45-46 372 J.A.R., Vol. 56, Tab 119H, pp. 16525-6, Raymond Affidavit, Exhibit “H”, J.A.R., Vol. 47, Tab 111D, pp. 13853, Dr. van de Pol Affidavit, Exhibit “D”; J.A.R., Vol. 52, Tab 116, pp. 15099-100, M. Sullivan Affidavit, para. 45 373 J.A.R., Vol. 55, Tab 119, pp. 16073, Raymond Affidavit, paras. 90-91, J.A.R., Vol. 40, Tab 102, pp. 11412-21, Poulin Affidavit, paras. 88-111 374 J.A.R., Vol. 55, Tab 119, p. 16060, Raymond Affidavit, para. 66; J.A.R., Vol. 40, Tab 102, p. 11428, Poulin Affidavit, para. 123; J.A.R., Vol. 52, Tab 116, pp. 15123-4, M. Sullivan Affidavit, paras 98-101; J.A.R., Vol. 47, Tab 110, pp. 13500-01, Dr. van de Pol Affidavit, para. 8-9 375 J.A.R., Vols. 55 & 56, Tabs 119 & 119H, pp. 16066 & 16519-38, Raymond Affidavit, para. 78 & Exhibit “H”, “Ten Reasons for Not Legalizing Prostitution and a Legal Response to the Demand for Prostitution”; J.A.R., Vol. 52, Tab 116, p. 15085, M. Sullivan Affidavit, paras 2-3; J.A.R., Vol. 47, Tab 111, pp. 13713, Dr. van de Pol Affidavit, para. 3 58

3) International Obligations Governing Prostitution and Sex Trafficking

134. Canada is subject to two international agreements that address adult

prostitution. One is with respect to prostitution and the other is with respect to sex trafficking,

as described below. States parties to these agreements are obliged to criminalize all forms of

forced prostitution. Apart from that, however, states parties are free to choose how best to

respond to prostitution domestically, whether that be by criminalization, decriminalization,

legalization, or anywhere along the spectrum.

135. On December 19, 1981, Canada became a party to the Convention on the

376 Elimination of All Forms of Discrimination against Women. Article 6 provides:

States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women. 136. On May 13, 2002, Canada ratified the Protocol to Prevent, Suppress and Punish

Trafficking in Persons, especially Women and Children377 which supplements the United

378 Nations Convention Against Transnational Organized Crime. It has been ratified by 142

379 other countries. It defines “trafficking in persons” as:

the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; (b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any means set forth in subparagraph (a) have been used; (c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if

376 J. Auth. Vol. 6, Tab 146, Convention on the Elimination of All Forms of Discrimination against Women, 1 March 1980, 1249 U.N.T.S. 13 377 J. Auth., Vol. 6, Tab 148, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, 12 December 2000, 2237 U.N.T.S. 319, Annex II 378 J. Auth., Vol. 6, Tab 147, United Nations Convention against Transnational Organized Crime, 12 December 2000, 2225 U.N.T.S. 209 379 J.A.R., Vol. 55, Tab 119, pp. 16051-2, Raymond Affidavit, para. 43 59

this does not involve any one of the means set forth in subparagraph (a) of this article; (d) “Child” shall mean any person under eighteen years of age. 137. The purpose of this wide-ranging international agreement is to ensure that all

States Parties prohibit trafficking in persons by criminalizing it and make efforts to protect victims and to prevent the crime from occurring in the first place. Notably, the terms

“exploitation of the prostitution of others” and “other forms of sexual exploitation” are not defined in the Protocol, and the “travaux préparatoires” or Interpretive Notes to the Protocol state that the Protocol is “without prejudice to how States Parties address prostitution in their respective domestic laws”. 380

138. The numbers of persons trafficked and prostituted are always difficult to obtain and frequently debated. US government data in 2006 stated that 600,000-800,000 persons are trafficked across international borders each year with 80 percent being women and girls

381 and up to 50 percent minors. A 2006 UN Office on Drugs and Crime (UNODC) report shows that, at the global level, 87 percent of the victims are trafficked for sexual exploitation.382

139. Canada strengthened its criminal justice system response by amending its

Criminal Code in 2005 to introduce three new trafficking-specific offences: trafficking in persons (s. 279.01), material benefit (s. 279.02) and withholding or destroying documents (s.

279.03), all towards the end of preventing the exploitation of victims of trafficking, buttressed by s. 279.04 as an interpretation provision setting out the scope of the word “exploits”.383

380 J.A.R., Vol. 55, Tab 119D, p. 16113, Raymond Affidavit Exhibit “D” 381 J.A.R., Vol. 55, Tab 119 and Vol. 59, Tab 119CC, pp. 16072 and 17180, Raymond Affidavit, para. 90 & Exhibit “CC”, US Department of State, Trafficking in Persons Report, June 2006, p. 6 382 J.A.R., Vol. 55, Tab 119 and Vol. 57, Tab 119K, pp. 16072 and 16593, Raymond Affidavit, para. 90 & Exhibit “K”, UN Office on Drugs and Crime (UNODC) Report, p. 33 383 J.A.R., Vol. 82, Tab 163, pp. 24739-40, An Act to amend the Criminal Code (trafficking in persons), S.C. 2005, c. 43, s. 3; see also Part 1, D (3)(b)(v), paras. 59-61 of this factum 60

PART II – POINTS IN ISSUE

140. Canada’s submissions on the issues to be decided are:

(a) The Applicant, Amy Lebovitch, has standing to bring this application but the other two Applicants, Terri Jean Bedford and Valerie Scott, do not.

(b) Sections 210, 212(1)(j) and 213(1)(c) of the Criminal Code do not deprive the Applicants of the right to liberty or security of the person in a manner not in accordance with the principles of fundamental justice pursuant to s. 7 of the Charter.

(c) Alternatively, if the Applicants can demonstrate a breach of s. 7, that breach is demonstrably justified as a reasonable limit pursuant to s. 1 of the Charter.

(d) Section 213(1)(c) of the Criminal Code infringes the Applicants’ freedom of expression pursuant to s. 2(b) of the Charter. That infringement is, however, demonstrably justified as a reasonable limit pursuant to s. 1 of the Charter.

(e) Alternatively, if this Court should find that the Applicants have demonstrated that any one of the challenged provisions breach their Charter rights, any remedy should be suspended for a period of 18 months. 61

PART III – ARGUMENT

1) Overview of Canada’s argument 141. The evidence establishes that prostitution entails a high level of risk for individuals who engage in it and significant harms to society at large – regardless of the venue in which it is practiced and the legal regime. It also establishes that many jurisdictions continue to use criminal prohibitions to address prostitution and no regime in the world has fully decriminalized, or chosen not to regulate prostitution in any fashion. Parliament has made the policy choice to criminalize the most harmful and public emanations of prostitution.

142. In May 1990, the Supreme Court dismissed constitutional challenges to the validity of what is now para. 213(1)(c) (communication provision) and s. 210 (bawdy house) of the Criminal Code based on sections 2(b), 2(d) and 7 of the Charter. The Applicants’ entire case relies on their claim to be able to offer new evidence and arguments indicating that these provisions, together with para. 212(1)(j) (living on the avails), are failing to meet their objectives and that they “materially contribute” to the endangerment of prostitutes. As will be demonstrated, this evidence establishes no such thing and the Applicants have entirely failed to discharge their onus of proof to establish any constitutional breach arising from the effect of these provisions or any basis in evidence or law to revisit the 1990 Prostitution Reference.

There is no constitutional right to engage in prostitution and the Charter does not oblige

Parliament to design a regime allowing the Applicants to engage in it with fewer hindrances.

The challenged provisions advance and are tied to legitimate state interests that are serious and substantial - to deter conduct that is harmful and dangerous. These laws withstand

Charter scrutiny.

A. STANDING

143. Litigants seeking to challenge the constitutionality of a validly enacted law of the

Parliament of Canada must show they have a sufficient interest in its validity in order to have 62

384 standing to bring a challenge. If litigants are not able to do so, they must apply for public interest standing, which the Applicants have not done.

144. Canada does not take issue with the private interest standing of one of the three

Applicants to this challenge, Amy Lebovitch. Canada does not do so because Ms. Lebovitch has testified that she continues to be engaged in the practice of prostitution.385

145. In contrast, Canada does take issue with the private interest standing of the other two Applicants, Terri Jean Bedford and Valerie Scott. This is, quite simply, because both have testified that they are no longer engaged in the practice of prostitution. They do not,

386 therefore, have any direct right or interest at stake engaged by the current claim.

146. Ms. Bedford has testified that she is not currently engaged in prostitution, and has no desire to be, but hopes to return to running a common bawdy house if s. 210 were to

387 be struck. Ms. Scott has testified that she also is not currently engaged in prostitution, but

388 would like to return to it at an indoor location if the impugned provisions were struck. The aspirations of Ms. Bedford and Ms. Scott are speculative and hypothetical. Charter challenges

389 cannot be mounted on the basis of hypothetical situations. They do not satisfy the test for private interest standing.

384 J. Auth, Vol. 6, Tab 138, Thomas A. Cromwell, Locus Standi: A Commentary on the Law of Standing in Canada (Carswell: Toronto, 1986) at p. 5 (“Cromwell”). As explained by Cromwell, courts have expressed this interest in a variety of ways, including “directly affected by”; a “direct interest” in the impugned legislation; “direct and singular interest”. 385 J.A.R., Vol. 2, Tab, 13, p. 164, Lebovitch Affidavit, para. 1; J.A.R., Vol. 2, Tab 14, p. 283, Cross Examination of Amy Lebovitch, Qs. 614-616 386 J. Auth, Vol. 2, Tab 16, See the closely analogous and very recent decision of Downtown Eastside Sex Workers United Against Violence Society v. Canada (2008) 305 D.L.R. (4th) 713, appeal to the B.C.C.A. to be heard. 387 J.A.R., Vol. 2, Tab 11, p. 53, Bedford Affidavit, para. 33; J.A.R., Vol. 2, Tab 12, pp. 97-98, Bedford Transcript, Qs. 108-110. Ms. Bedford stated that the “only reason I would ever return to prostitution is to save the city, or whatever. I mean, it would have to be a desperate measure, a matter of life and death.” 388 J.A.R., Vol. 4, Tab 17, p. 573, Scott Transcript, Q. 44; it is worth noting that Ms. Scott, although engaged in the practice of prostitution for over 30 years, has never been charged with any prostitution-related offences. 389 J. Auth, Vol. 1, Tab 8, Canadian Council for Refugees v. Canada (2008), 74 Admin. L.R. (4th) 79 at para. 100 (F.C.A), leave to appeal to SCC refused [2008] S.C.C.A. No. 422 (Q.L.) 63

147. Canada accepts that the private interest standing of just Ms. Lebovitch suffices for this challenge to be heard.

B. ONUS OF PROOF

148. Litigants claiming a Charter infringement bear the onus of proving it on the balance of probabilities. If they are successful, the onus is shifted to the government to justify the infringement under s. 1 of the Charter. 390

149. In the unique circumstances of this case, the Applicants have to be able to demonstrate that the new social science evidence they present obliges this Court to revisit the

1990 Supreme Court Reference, given the principle of stare decisis.391

C. PROBLEMS WITH THE APPLICANTS’ EVIDENCE

1) Evidence of John Lowman 150. The Applicants’ claim is anchored upon the evidence and theories of Dr. John

Lowman and most of the Applicants’ other experts rely upon his evidence.392 As is demonstrated here, Dr. Lowman’s evidence should be assigned little weight.

a) Scope of Dr. Lowman’s expertise and his conclusions

151. Dr. Lowman is a Professor at the School of Criminology at Simon Fraser

University. His academic degrees are in geography. He has worked on research projects relating to prostitution and law enforcement. Based on his academic work, Dr. Lowman claims

390 J. Auth. Vol. 4, Tab 78, R. v. Malmo-Levine, [2003] 3 S.C.R. 571 at para. 97(Malmo-Levine) 391 J. Auth, Vol. 2, Tab 20, Lesson v. University of Regina (2007), 301 Sask. R. 316 at para. 16 per Laing, C.J.Q.B. (Q.B.); see also J. Auth, Vol. 6, Tab 136, Wakeford v. Canada (2001), 81 C.R.R. (2d) 343 at paras. 14 & 20 per Swinton J.(Ont. S.C.J.) (Wakeford) 392 J.A.R., Vol. 24-25, Tab 55C, 55D, 55E, 555F, 55H, 56G, 56J, pp. 6880, 6888, 6893, 6896-7, 6897, 6903, 6916, Shaver Affidavit, Exhibits “C”, “D”, “E”, “F”, “H” and Shaver Transcript, Exhibit “G” and “J”; J.A.R., Vol. 13-14, Tab 48B, 48H, 49A, 49B, 49C, pp. 3519, 3535, 3552, 3923, 4081, 4089, 4102, 2103, 4105, 4112 & 4120, Benoit Affidavit, Exhibits “B” & “H” and Benoit Transcripts, Exhibits “A”, “B” & “C”; J.A.R., Vol. 11, Tab 42B, pp. 2788, 2790, 2792 & 2814, MacDonald Affidavit, Exhibit “B”, p. 62-3, p. 80-1, p. 84-5 and 128-9; J.A.R., Vol. 12, Tabs 46, 46D & 46E, pp. 3276, 3318, 3322, 3348, Maticka-Tyndale Transcript. Q.378, line 23, Exhibit “D”, p. 149 & 153, Exhibit “E”, p. 6; J.A.R., Vol. 9, Tab 35C, p. 2227, Brock Transcript, Exhibit “C”, p. 2; J.A.R., Vols. 30 & 32, Tabs 64, 64B, 64C, pp. 8532, 8568, 8590, 9196, 9200, 9201, Weitzer Affidavit, para. 14, Exhibit “B”, p. 215 & Exhibit “C”, p. 29; J.A.R., Vol. 28, Tab 61G, pp. 8185, 8188, Affidavit of Barbara Sullivan, Exhibit “G”, pp. 5,8 (All of the Applicants’ other experts rely on Dr. Lowman but for Drs. Brannigan and Leyton.) 64

393 expertise in criminology and sociology. Dr. Lowman acknowledges that he is not an expert in the law. He does, however, assert qualification as an expert in “prostitution law” by virtue of

“having read much of the jurisprudence” and having taken some courses in the law.394 Canada acknowledges that Dr. Lowman has some expertise in criminology and sociology – but none in psychology or “prostitution law”. Taking some courses and reading jurisprudence does not qualify as expertise.

152. Dr. Lowman concludes the following in his affidavit:395

• The challenged provisions force survival sex workers outside and into vulnerable areas (e.g. isolated streets & industrial areas); • Street-involved prostitution is more violent than off-street prostitution; and • Prostitutes do not benefit from the same level of protection and response from police. 153. Dr. Lowman’s research has led him to believe that the challenged provisions:

• contribute to legal structures which propagate the belief that a prostitute is responsible for her own victimization (“they deserve what they get”); • force prostitution to remain part of the illicit market creating an environment which the most brutal forms of manager-exploitation take root; and • encourage the convergence of prostitution with other illicit markets (e.g.: drug market). 154. As discussed below, all of these conclusions should be assigned little weight as a result of:

• Dr. Lowman having effectively disavowed the text of his affidavit during cross- examination; • Confirmatory bias tainting Dr. Lowman’s conclusions; • Serious problems and limitations in the methodology adopted by Dr. Lowman in order to arrive at his conclusions; and • The empirical observations supporting Dr. Lowman’s conclusions being demonstrated to be “invalid, unreliable, … inadequately and poorly analyzed and most likely statistically insignificant”.396 Each of these is briefly addressed in turn below.

393 J.A.R., Vol. 21, Tab 53, pp. 5906-5907, Lowman Transcripts Vol.1, Qs.48-54 394 J.A.R., Vol. 21, Tab 53, p. 5907, Lowman Transcripts Vol.1, Qs.56-59 395 J.A.R., Vol. 15, Tab 51, p. 4149, Lowman Affidavit, paras. 7-8 396 J.A.R., Vol. 61, Tab 122, pp. 17774-75, Affidavit of Ron Melchers, para. 4 65

b) Dr. Lowman’s affidavit should be assigned little weight based on his own disavowal of it during cross-examination 155. When asked at the start of his cross-examination if he wanted to make any corrections to his affidavit, Dr. Lowman announced several changes he wished to make, including his description of his core conclusion about the causal relationship between the challenged provisions and endangerment.397 He also proclaimed his unhappiness with the process for producing his affidavit – and its content. Counsel for the Applicant, Terri Jean

Bedford, stated for the record that he had “had a conversation with Professor Lowman last night, that there were things, in rereading his affidavit, he was unhappy with the way it was phrased …”398 On cross-examination, Dr. Lowman acknowledged that his affidavit - which he described as “argument” - does not always reflect either the content or nuance of his expert opinion:399

Q23. So I take it, if you were to have the opportunity to write this affidavit today, it would be different. A. It would contain the same arguments, but I would do it in an entirely different way. I would do it entirely myself.

Q24. So you perceive that there were problems in that process when you put together your argument. Is that correct? A. Retrospectively, yes, but not at the time.

Q25. And you’d say that it’s accurate to characterize these as arguments, correct, as you just did? A. Yes.

Q26. Would you consider this affidavit to be your work or would it be primarily more accurately described as the work of others and you approved it? A. I approved it and I read it carefully at the time […] […]

Q27. So would it be safe to say, based on that, you’re not entirely happy with this as a product, correct? A. Correct. […]

397 Dr. Lowman wanted to add at the end of paragraph 35 of his supplementary affidavit the sentence that “Canadian prostitution law materially contributes to violence against prostitutes”. As discussed below, this phrase never appears in his written materials: J.A.R., Vol. 21, Tab 53, p. 5894, Lowman Transcripts, Vol.1, Q.10 398 J.A.R., Vol. 21, Tab 53, p. 5896, Lowman Transcripts, lines 19-22 399 J.A.R., Vol. 21, Tab 53, pp. 5899-5901, Lowman Transcripts, Vol.1, Qs. 23-26, 27 and 29 66

Q29. So the text doesn’t accurately reflect, in your opinion, either the content or nuance of the supporting material.

A. Sometimes – well, and the reason I say that is because, for example, Dr. Melchers points out some of those distinctions. […] [Emphasis added.] 156. Dr. Lowman returned to express his disappointment with his affidavit many times throughout the cross-examination. Later in his cross-examination, Dr. Lowman explained that he “lapsed” in his affidavit in respect of being careful;400 that he used “careless” language which he would be “much more careful about” were he to have the opportunity to rewrite it;401 that his affidavit was “poorly written”;402 that some of his conclusions were an “example of poorly reasoned argument”.403

157. Dr. Lowman explained that many of the problems and errors in his affidavit were due to the process by which early drafts were assembled by students working with counsel for

404 the Applicants. He also stated there are many things he did not do in the affidavit because he had a “gross misunderstanding” of the process, which he “totally misunderstood when he

405 began this procedure”.

158. The admissions by Dr. Lowman that his evidence was:

• (1) the product of a process working with students under the supervision of the Applicants’ counsel he was disappointed in; • (2) his many admissions that the content of his affidavit suffered from errors, mistakes, lapses, poor writing and careless language; and • (3) his admission that if he had the chance that he would do it in an “entirely different way”. - taken collectively - amount to a disavowal by Dr. Lowman of the text of the first affidavit filed by him in this proceeding. This effectively eliminates the credibility of this affidavit before this

400 J.A.R., Vol. 21, Tab 53, p. 5932, Lowman Transcripts, Vol.1, Q.130 401 J.A.R., Vol. 21, Tab 53, p. 6028, Lowman Transcripts, Vol. 1, Q.455; also see, J.A.R., Vol. 21, Tab 53, p. 6168, Lowman Transcripts, Vol.1, Q.919 402 J.A.R., Vol. 21, Tab 53, p. 6134, Lowman Transcripts, Vol.1, Q.807 403 J.A.R., Vol. 22, Tab 53, p. 6409, Lowman Transcripts, Vol. 2 at Q.1622 404 J.A.R., Vol. 21, Tab 53, pp. 5898-5899, p. 5901 and 6083, 6409 , Lowman Transcripts, Vol.1, Qs.22, Q.30, Q.621, Q.627, Q.628, Q.1622; see also, J.A.R., Vol. 23, Tab 54, p. 6797, Answer to Undertakings of John Lowman, UT #8; 405 J.A.R., Vol. 21, Tab 53, p. 6003; Vol. 22, p. 6329 – 6330, p. 6366, p. 6409, Lowman Transcripts, Vol. 1 & 2, Q.377 and Vol. 2, Q.1495 and Q.1622, Q.1398 67

Court and renders the credibility of the remainder of Dr. Lowman’s evidence before this Court suspect.406 Dr. Lowman’s evidence should be assigned little weight.

c) Dr. Lowman’s evidence is suspect on the grounds of confirmatory bias 159. Dr. Lowman has made up his mind on the issue of the law and adult prostitution.407 Dr. Lowman is a long-time advocate of decriminalizing all aspects of the practice of adult prostitution. In fact, his advocacy on behalf of decriminalization pre-dates

Parliament’s 1985 enactment of the communication provision. As early as 1984 he had been expressing the opinion that the Criminal Code operates in a manner which violates the security

408 of the person for prostitutes in Canada. He also stated in cross-examination that “when the

1985 law was brought in, it struck me that it entrenched what I believed the evidence to show was a contradictory and self-defeating law”.409 Dr. Lowman expressed these opinions prior to conducting any of his major studies on the impact of the 1985 change in the law. This raises an issue as to the bias he brought to bear when he conducted these empirical studies purportedly demonstrating a connection between risk of harm and the change in the Criminal

Code provisions governing prostitution.

160. More significantly, Dr. Lowman’s evidence and testimony in cross-examination is in the nature of advocacy, rather than objective expert opinion. Dr. Lowman candidly acknowledged this during his cross-examination when he described, and then affirmed, that

410 his affidavit was “argument”. This concern is amplified by Dr. Lowman’s concession that his affidavit was largely the product of a collaborative process (that he was not happy with)

406 J. Auth, Vol. 1, Tab 4, Multiple reports submitted by the same expert in the same proceeding are not to be considered as watertight compartments: Bolton v. Vancouver (City), [2002] B.C.J. No. 908 at para. 16: “Indeed, where there are multiple reports from the same expert, all of the reports should be read together.” 407 Dr. Lowman has struggled with, and is not decided upon, the question of whether there need to be any specific laws (beyond the sexual consent laws) aimed at under-age prostitution or procurement, although he is opposed to under-age youth participating in prostitution: J.A.R., Vol. 21, Tab 53, p. 5962, Lowman Transcripts, Vol. 1, Q.231 408 J.A.R., Vol. 21, Tab 53, pp. 5909-5910, Lowman Transcripts, Vol. 1, Qs. 64-65 409 J.A.R., Vol. 21, Tab 53, pp. 5957-5958, Lowman Transcripts, Vol. 1, Qs. 210-213; see also pp.6429 – 6431, Qs.1682-1688 410 J.A.R., Vol. 21, Tab 53, p. 5899, Lowman Transcripts, Vol. 1, Qs.24-25, line 25 68 working with students under the supervision of counsel for the Applicants.411 Dr. Lowman’s evidence cannot “be seen to be … the independent product of the expert uninfluenced as to

412 form or content by the exigencies of litigation”. It is replete with deliberately partisan arguments.

d) General methodological problems with Dr. Lowman’s evidence

i) Dr. Melchers’ critique of Dr. Lowman’s evidence 161. Dr. Melchers, an expert in research methodology,413 gave the following assessment of Dr. Lowman’s evidence: 414

…the affidavit of Dr. Lowman provides no empirical support for the proposition that the Criminal Code provisions on prostitution cause the endangerment of street prostitutes or that the communicating offence introduced in 1985 was the cause of increased danger to street prostitutes. The empirical observations supporting this conclusion are invalid, unreliable, and not convincingly free of bias; they are inadequately and poorly analyzed and most likely statistically insignificant; and any variations over time are trivial to the extent they can be reliably known. 162. Dr. Melchers’ conclusions are, in part, based upon his opinion that Dr. Lowman did not apply the principles of research methodology to his assessment of causal inferences. It was Dr. Melchers’ opinion that Dr. Lowman’s evidence does not support any of his empirical conclusions about a causal connection between the endangerment of street prostitutes and the challenged provisions. He further states that Dr. Lowman’s conclusions about the causal

411 J.A.R., Vol. 21, Tab 53, p. 5898-9, Lowman Transcripts, Vol. 1,Q.22: “first affidavit was written in an interaction with – it was several students, I can’t remember how much, who basically read over the compendium of my work and then produced a summary of what they considered to be the most important points”…tried a second then, then I worked more closely with it with Professor Young for a little bit, and then we produced what is the final version there…” [Emphasis added.] 412 J. Auth, Vol. 2, Tab 24, National Justice Compania Naviera SA v. Prudential Assurance Co. Ltd. (The “Ikarian Reefer”), [1993] 2 Lloyd’s Report 68 at 81, rev’d on other grounds but aff’d on this point, [1995] 1 Lloyd’s Rep. 455 at 496 (C.A.). The Court of Appeal has cited this case and this particular proposition with approval: J. Auth, Vol. 6, Tab 130, Sagl v. Chubb Insurance Company of Canada, 2009 ONCA 388 at para. 85. See also J. Auth, Vol. 2, Tab 17, Fellowes, McNeil v. Kansa General International Insurance Co. (1998), 40 O.R. (3d) 456 at para. 11 (S.C.J.). 413 J.A.R., Vol. 61, Tab 122, pp. 17775-76, Melchers Affidavit at paras. 6-9; J.A.R., Vol. 61, Tab 123, pp. 17827-28, Suppl. Melchers Affidavit (Suppl. Melchers Affidavit) at paras. 4-7 414 J.A.R., Vol. 61, Tab 122, p. 17775, Melchers Affidavit at para. 4 69 connection between the challenged provisions (and the various legal instruments and enforcement strategies that derive from it) and the endangerment of prostitutes is:415

entirely unsupported in his affidavit. The argument presented…is speculative and offers no empirical testing of hypotheses or valid and reliable evidence in support of its conclusions. ii) Limitations of qualitative data as a ground for making causal inferences 163. Dr. Melchers states that the only way to overcome some of the limitations of qualitative research in order to create conditions under which a “limited degree of inference as to causality” might be claimed is to take considerable care to gather and weigh opposing

416 evidence. Dr. Melchers concludes that Dr. Lowman has entirely failed to consider plausible alternate causes – rendering his causal conclusions unsubstantiated:417

Only to the extent that this is substantially done may consideration be given to such inferences with regard to causality. In Dr. Lowman's work, there is a singular lack of consideration given to plausible alternate causes of the dangers faced by street prostitutes. iii) Methodological technique adopted by Dr. Lowman – triangulation 164. Dr. Lowman adopts an expansive view of the ability to draw causal inferences from qualitative data. He describes his chosen method as “triangulation”. In his cross- examination, Dr. Lowman explained “triangulation”:

So the process here is pulling all of those different data sources together in a process of triangulation. You can take each one of these datum and you can raise question marks around it, but when you've got them all together, I think a very, very clear picture arises;418 and In response to a question as to whether a researcher can generalize from a very small sample419

… but remember, we are triangulating research methods here. The whole trick with qualitative research is the triangulation, not necessarily every individual piece. It is the jigsaw puzzle, it is the picture that they're putting together. We look down a kaleidoscope, we see a rich array of colours. The job of the

415 J.A.R., Vol. 61, Tab 122, p. 17789, Melchers Affidavit at paras. 29-30 416 J.A.R., Vol. 61, Tab 123, pp. 17829-30, Suppl. Melchers Affidavit at paras. 10-11 417 J.A.R., Vol. 61, Tab 123, pp. 17831-32, Suppl. Melchers Affidavit at paras. 14-16 418 J.A.R., Vol. 22, Tab. 53, p. 6278, Lowman Transcripts, lines 11-16 419 J.A.R., Vol. 22, Tab. 53, p. 6356, Lowman Transcripts, lines 15-23 70

qualitative researcher triangulating research methods is to discern the pattern rather than merely just the colours. 165. Dr. Lowman identifies several “conceptual devices” he uses to identify these patterns, themes and clusters of findings, including “telling a story”, “using metaphor”,

“compare and contrast”, “examining relationships among concepts or variables”, “drawing pictures” and “counting”. Based on these, a researcher then “constructs explanations” and makes “it all come together” which he acknowledges involves a “degree of faith” in the researcher.420

166. In reliance upon triangulation, Dr. Lowman draws sweeping causal inferences between the challenged provisions and the endangerment of prostitutes. He frequently does so in reliance upon one or two anecdotes (which Dr. Lowman described as “observation

421 points”). Often, the conclusions Dr. Lowman seeks to draw from the evidence (including anecdotes) are based on erroneous facts. Many examples of these are discussed in the attached Annex Three setting out the problems in Dr. Lowman’s factual conclusions in more detail. As will also be demonstrated below, the methodology adopted by Dr. Lowman renders his conclusions about causation inherently unreliable, subjective and demonstrably erroneous in many instances.

iv) Dr. Lowman’s evidence is geographically restricted to Lower Mainland BC

167. Dr. Lowman’s empirical evidence is restricted to Lower Mainland B.C. In spite of this, he feels no limitation in expanding his causal conclusions based on that region to Canada as a whole.422 This violates a basic principle of research methodology – agreed to by all the expert affiants (including Dr. Lowman in principle, if not application) – that, when conducting purposive sampling, it is necessary to qualify any conclusions reached by restricting those

420J.A.R., Vol. 20, Tab. 52, p. 5732 - 5733, Supplementary Lowman Affidavit, paras. 25-26 421 See for example: J.A.R. Vol. 21, Tab 53, 6122 – 6124, 6144, Lowman Transcripts, Vol. 1, Qs.770 – Q.772, Qs.823 – 824 422 J.A.R., Vol. 23, Tab 53, pp. 6232/33, Lowman Transcripts, Vol. 1, Qs.1125 - 1126 71

423 conclusions to the discrete sample studied. It follows that no study on prostitution in one city can be generalized to represent prostitution in another city and certainly not to a country at

424 large.

e) Dr. Lowman’s conclusions that the Criminal Code “materially contributes” to violence against prostitutes does not appear anywhere in his affidavit or exhibits 168. The Applicants state in their Factum that it is Dr. Lowman’s “belief” that the

“criminal law materially contributes to violence against prostitutes” – along with other causal

425 factors such as poverty, drug addiction and lack of education. It is noteworthy that the use of the term “materially contributes” appears for the first time during Dr. Lowman’s cross

426 examination – where he seeks to amend his supplementary affidavit to add that phrase. It appears nowhere in any of his two expert affidavits – or any of the many volumes of his appended scholarship. Yet he uses the phrase 18 times in his cross-examination and once in his answers to undertakings.427

169. In his original affidavit, it was Dr. Lowman‘s evidence that the challenged

“provisions force survival sex workers outside and into vulnerable areas”;428 “force prostitution to remain part of the illicit market”;429 and finally: “I believe that the Criminal Code leads

423 J.A.R., Vol. 30, Tab 64, pp. 8529-30, Weitzer Affidavit, para. 10; J.A.R., Vol. 31, Tab 65, p. 9000, Weitzer Transcript, Q.108 424 J.A.R., Vol. 31, Tab 65, p. 9000, Weitzer Transcript, Q.110; and J.A.R., Vol. 62, Tab 125, p. 18047, Pratt Affidavit, para. 50; J.A.R., Vol. 64, Tab 126.B, p.18734-36, Response to Written Questions of John Pratt, pp. 17-19, paras. 20-22 425 Applicants’ Factum at para. 169 426 J.A.R., Vol. 21, Tab 53, pp. 5894 - 5895, Lowman Transcripts Vol.1, Q.10, where he seeks to amend paragraph 35 of his Supplementary Affidavit. 427 From J.A.R., Vol. 21, Tab 53 - List of occurrences of "materially contribute(s)" or "material contribution" in John Lowman's answers on cross-examination: 1) p. 5894, Q.10, line 24; 2) p. 5895, Q.11, line 3; 3) p.6060, Q.560, line 24; 4) p. 6074, Q.605, line 18; 5) p. 6123, Q.771, line 24; 6) p. 6231, Q.1123, line 16; 7) p. 6232, Q.1125, line 18; 8) p. 6238, Q.1140, line 25; 9) p. 6239, Q.1140, line 3; 10) p. 6288, Q.1278, line 10; 11) p. 6288, Q.1278, line 17; 12) p. 6290, Q.1283, line 19-20; 13) p. 6306, Q.1330, line 6; 14) p. 6306, Q.1331, line 11;15) p. 6306, Q.1331, line 17; 16) p. 6312, Q.1353, line 10; 17) p. 6353, Q.1461, line 16-17; 18) p. 6463, Q.1777, line 15; From J.A.R., Vol. 23,Tab 54, p. 6794, Answers to Undertakings of Dr. Lowman, UT#2, third paragraph 428 J.A.R., Vol. 20, Tab 52, p. 5727, Supplementary Affidavit of Dr. John Lowman Affidavit (Suppl. Lowman Affidavit), para 7 429 J.A.R., Vol. 20, Tab 52, p. 5727, Suppl. Lowman Affidavit, para 8 72

430 women to work in different and more dangerous strolls”. [emphasis added]. These are unqualified statements of direct causality. Dr. Lowman may have changed his theory of causality - or tried to better nuance it in reply to Dr. Melchers’ criticism431 – but it is not accurate to describe his theory in terms he never used prior to his cross-examination. It is noteworthy that the deterministic language Dr. Lowman used to describe his causal conclusions is criticized by the Applicants’ own expert, Dr. Weitzer, who warned that social scientists needed to use probabilistic language - rather than deterministic language - to describe research findings.432

f) Dr. Lowman’s specific causal conclusions are not supported by the evidence

170. In addition to the general problems and limitations in Dr. Lowman’s evidence, the specific causal conclusions he set out in his affidavit on the connection between the challenged provisions and the endangerment of prostitutes are demonstrably flawed, often based on erroneous facts and unsupported by the evidence. Some of these problems are set out in summary fashion here (and in greater detail in Annex Three with extensive references to the record and Dr. Lowman’s cross-examination):

(a) Dr. Lowman acknowledged during his cross-examination multiple misstatements and inaccuracies in the text of affidavit itself

The affidavit of Dr. Lowman – together with several appended studies – contain errors (in some cases serious errors), misstatements and many inaccuracies in respect of the evidence and language used to describe the level of violence suffered by street prostitutes. In some cases, it is carelessness and imprecision. In other cases, it is much more serious – and reflects deep-seated flaws in Dr. Lowman’s evidence, objectivity and conclusions.

These errors include: i) misstatements in respect of the number of women working indoors who carry weapons to protect themselves; ii) misstatements in respect of incorrect comparisons between murder rates and homicide rates; and iii) admitted

430 J.A.R., Vol. 20, Tab 52, p. 5727, Suppl. Lowman Affidavit, para 9 431 In his Supplementary Affidavit, replying to Dr. Melchers, Dr. Lowman did acknowledge that the law was part of a “causal process” affecting the health and safety of prostitutes and “is not the direct cause of violence”, but a “sufficient and indirect cause”. He never described the law as “materially contributing” to harm. 432 J.A.R., Vol. 30, Tab 64, p. 8527, Weitzer Affidavit, para. 6 73

carelessness in respect of comparisons of violence rates suffered by street versus off- street prostitutes.

(b) There is no evidence that the Criminal Code “provisions force survival sex workers outside and into vulnerable areas” (i.e. “displacement”).

The challenged provisions apply everywhere and there is nothing in the Criminal Code that “forces” sex workers into any particular area. There is no evidence of an increase in “displacement” since 1985 when the law was amended.

(c) There is no empirical evidence supporting the proposition that street- involved prostitution is more violent than off-street prostitution.

There is no agreement as to what constitutes off-street prostitution. The fluidity and cross-over between all prostitution venues belies any attempt to impose or construct a hard distinction between the two. Dr. Lowman acknowledged that there was little known about off-street prostitution and in the face of knowing little about this large and largely hidden population, one simply cannot draw empirically sound conclusions that off-street prostitution – however defined – is somehow “safer” than street prostitution.

(d) Evidence does not support Dr. Lowman’s conclusions on relationship between levels of violence suffered by street prostitutes and the challenged provisions

Dr. Lowman places great reliance upon the homicide rate table reported in paragraph 23 to ground his argument that the communicating law “played a pivotal role in creating 433 a social and legal milieu that facilitated these homicides”. Dr. Melchers criticized the data supporting the homicide rate table reproduced at paragraph 23 – and the causal inferences drawn from it as “at best a highly questionable enterprise and one that could not be described as a research finding but rather, at best, as speculation.”434

(e) No evidence supporting Dr. Lowman’s conclusions on levels of violence reported by street versus off-street prostitutes

In paragraph 15, Professor Lowman states that prostitutes working on the street are much more likely to report having been robbed, sexually assaulted, beaten, strangled and kidnapped, than those who worked off-street. There is, however, no evidentiary support for this claim in any of the sources he cites.

(f) There is no support for the claim that the “legal act of prostitution can be conducted safely without risk of violence”

In paragraph 30, Dr. Lowman relies upon the study of his student, Tamara O’Doherty, for the purposes of demonstrating “that the legal act of prostitution can be conducted safely without risk of violence”. This study demonstrates no such thing. Instead, it is restricted to a select group of 39 well educated, financially comfortable, primarily white, local respondents working in high-end establishments in Vancouver. It is entirely (and admittedly) unrepresentative of the population of prostitutes working off-street and was

433 J.A.R., Vol. 18, Tab 51J, p. 5133, Lowman Affidavit, Exhibit “J” 434 J.A.R., Vol. 61, Tab 122, p. 17791, Melchers Affidavit, para. 32 74

selectively chosen to deliberately disprove the thesis that prostitutes working off-street also suffer violence.435

(g) The evidence does not support that prostitutes do not benefit from the same level of police protection and response from police as compared to other citizens

There is no empirical evidence – and not a single study in the voluminous record – comparing the level of protection afforded to prostitutes by police as compared to the general population – or that support the proposition that prostitutes do not benefit from the same level of police protection and response from police as compared to other citizens.

(h) No evidence that prostitutes are considered unreliable by police and that police are unwilling to act based on their information

Dr. Lowman states in paragraph 37 that police are not willing to act on the information provided by street prostitutes as they are considered unreliable. He provides two anecdotes to support this allegation - the case of Clifford Olsen and Gary Ridgeway, the Green River Killer who he says would have been caught midway through their murder sprees had the police taken the evidence of a prostitute (and in the case of Olsen a pimp) seriously.436

These incidents prove nothing. They are purely anecdotal, based on media reports (at least one of which is of dubious reliability), both constitute sheer speculation, and were acknowledged by Dr. Lowman to be inaccurate and erroneous. They should be disregarded entirely.

(i) Dr. Lowman acknowledges that there has been a trend of change in police attitude towards prostitutes resulting in more convictions of those who assault them

Contrary to the statements in his affidavit, Dr. Lowman acknowledged during his cross- examination that there are “some officers, obviously, who have a very different attitude, 437 it seems, th[a]n one that’s purely contemptuous”. He also acknowledged that some prostitutes do turn to the police for help – which is why a growing number of men are being convicted for assaulting prostitutes and given fairly lengthy prison terms as a 438 result.

(j) No evidence that the Criminal Code provisions contribute to legal structures propagating the belief a prostitute is responsible for her own victimization.

It is not clear what evidence Dr. Lowman relies upon to supports his claim in para. 8 and 35 that the Criminal Code provisions contribute to legal structures propagating the belief that prostitutes are responsible for their own victimization (“they deserve what

435 J.A.R., Vol. 21, Tab 53, pp. 6187 – 6188, Lowman Transcripts, Vol. 1, Qs.996 – 997;and p. 6199, Qs.1037 - 1038 436 J.A.R., Vol. 15, Tab 51, p. 4164-5, Lowman Affidavit, para. 37 437 J.A.R., Vol. 21, Tab 53, p. 6090, Lowman Transcripts, Vol. 1, Q.649 438 J.A.R., Vol. 21, Tab 53, pp. 6099-6100, Lowman Transcripts, Vol. 1, Qs.698 – 699 75

they get”). There is, however, no empirical evidence - other than anecdote – supporting a connection between the Criminal Code and a “discourse of disposal” contributing to rationalization of violence against prostitutes. Dr. Lowman acknowledges stigmatization of prostitution long pre-dates the law. Ultimately, Dr. Lowman states “nothing much changed” when the 1985 law was passed.439

(k) No evidence that the Criminal Code provisions force prostitutes to be part of an illicit market and encourage convergence with other illicit markets.

No social science evidence of any kind is offered by Dr. Lowman in support of his claims that: 1) the Criminal Code forces prostitution to remain part of the illicit market, leaving it to “primitive market forces which can create an environment in which the most brutal forms of manager-exploitation take root”; and 2) the Criminal Code encourages convergence of prostitution with other illicit markets, particular the illicit drug trade.

(l) Repeal of the Criminal Code would not eliminate street prostitution and its most dangerous practices

It was Dr. Lowman’s own evidence that the repeal of the laws would not allow many women to make a living as an escort (or work online) as many prostitutes do not have the skills, personalities and lifestyle necessary to make a living as an escort service prostitute – and other countervailing forces pulling them back to the street including a 440 ready supply of tricks. Dr. Lowman also acknowledged that, even if the laws were repealed, not all street prostitutes would have the resources and capacity to prostitute online (and off-street) because of homelessness, vulnerability and poverty.441

(m) Deterrent effect of Criminal Code provisions on customers and neophyte prostitutes

Dr. Lowman strongly argued that the Criminal Code provisions had little impact upon 442 the number of street prostitutes in Vancouver. It is clear from his evidence – and Dr. Lowman acknowledges in his cross-examination, that the statistics contained in his 1989 Report are not indicative of any trend in this respect. His study indicated, however, that it was the impression of his subjects that the passage of the communication law did have a deterrent effect upon johns – and on “neophyte” or “dilettante” prostitutes.

All of the problems with Dr. Lowman’s evidence referred to above, and some others, are discussed in Annex Three, with extensive references to the evidence and Dr. Lowman’s cross- examination – together with a reply to the Applicants’ attack upon the evidence of Dr.

Melchers.

439 J.A.R., Vol. 22, Tab 53, p. 6433, Lowman Transcripts, Vol. 2, Q.1695 440 J.A.R., Vol. 21, Tab 53, p. 6018, Lowman Transcripts, Vol. 1, Q.421; see also: p. 6059, Q.556; pp. 6066 – 6067, Qs.581 – 582 441 J.A.R., Vol. 21, Tab 53, p. 6059, Lowman Transcripts, Vol. 1, Q.556 76

g) Conclusion - Dr. Lowman’s evidence fails to establish any causal relationship between the challenged laws and endangerment of prostitutes

171. As demonstrated above, Dr. Lowman’s evidence suffers from credibility issues, serious methodological limitations and multiple errors. It is more in the nature of advocacy than expert opinion and is deserving of little weight. Furthermore, as demonstrated in detail in

Annex Three, Dr. Lowman’s actual conclusions set out in his affidavit are invalid, unreliable, inadequately and poorly analyzed - and frequently based on erroneous facts. His evidence fails to demonstrate any causal relationship between the challenged provisions and the endangerment of prostitutes – or the proposition that the challenged laws are failing to serve their legislative objectives.

2) Problems with the “echo studies” relied on by Dr. John Lowman

172. Dr. Lowman, having posited his conclusions in his affidavit based on his own empirical research and scholarship, asserts that his findings, in turn, are supported by the research conducted by other scholars:443

Many of my conclusions have been echoed in research conducted by other scholars from different jurisdictions. [Emphasis added] 173. Dr. Lowman then briefly summarizes 15 different articles to assert how each of these “echo studies” supports his own findings. Canada does not need to address these studies for the simple reason that Dr. Lowman has failed to substantiate his own findings, and therefore, there is little for these other studies to affirm. Nevertheless, for the purpose of comprehensiveness, the 15 echo studies will be addressed in a separate annex, Annex Four.

174. As an overview, however, four things are worth noting here with respect to the echo studies:

442 J.A.R., Vol. 17, Tab 51(G), p. 4760, Lowman Affidavit, Exhibit “G” p. 199 ; J.A.R., Vol. 22, Tab 53, p. 6479, Lowman Transcripts, Vol. 2, Q.1820 443 J.A.R., Vol. 15, Tab 51, pp. 4165-6, Lowman Affidavit, para. 39 77

(a) Dr. Lowman acknowledged during his cross-examination that his use of the verb “echoed” in paragraph 39 is “imprecise” and “ill-chosen.”444 Indeed, during his cross- examination, he specifically disavowed the findings of one of the studies”;445

(b) Dr. Lowman acknowledged in cross-examination that these studies, as with all empirical studies on prostitution, cannot be seen as “representative”446 in light of the principles of research methodology;

(c) This lack of representativeness is compounded here because, as detailed in Annex Four, these studies were carried out for different purposes, in different countries with different legal regimes, using different methodologies; and

(d) Finally, only 13 of the 15 echo studies describe the findings of any new empirical study at all – two are literature reviews447 – and of the remaining 13, only 5 actually compare violence experienced by those engaged in street as opposed to off-street prostitution.

3) Evidence of the Applicants’ other experts

175. Canada submits that the evidence of the Applicants’ other experts, in turn, should be accorded little weight. This is for two reasons:

448 (a) Most of them rely on the findings of Dr. Lowman. It follows that, to the extent that each does so, their evidence is unsubstantiated; and

(b) In terms of what is left of the social science evidence that they rely on – largely, their own empirical studies – the principles of research methodology do not allow them to make the claims they assert based on these studies.

444 J.A.R., Vol. 21, Tab 53, pp. 6256 & 6386-7, Lowman Transcripts, Qs. 1185 & 1547 445 J.A.R., Vol. 21, Tab 53, pp. 6366-9, Lowman Transcripts, Qs. 1494-9 “Of course I should have mentioned it in the affidavit […]. I'm not simply picking studies that I think support my position.” 446 J.A.R., Vol. 21, Tab. 53, pp. 6263, 6301, 6308, 6314, 6337-8 & 6343, Lowman Transcripts, Qs. 1211, 1315, 1338, 1362, 1423 & 1435 447 J.A.R., Vol. 19, Tabs 51R & AD, pp. 5419-28 & 5631-90, Lowman Affidavit, Exhibits “R” & “AD” – the two literature reviews are those of Linda Cusick, (“Widening the Harm Reduction Agenda: From “Drug Use to Sex Work”) & Ine Vanwesenbeeck (“Another Decade of Social Scientific Work on Sex Work: a Review of Research, 1990-2000”); 448 J.A.R., Vol. 24-25, Tab 55C, 55D, 55E, 555F, 55H, 56G, 56J, pp. 6880, 6888, 6893, 6896-7, 6897, 6903, 6916, Shaver Affidavit, Exhibits “C”, “D”, “E”, “F”, “H” and Shaver Transcript, Exhibit “G” and “J”; J.A.R., Vol. 13-14, Tab 48B, 48H, 49A, 49B, 49C, pp. 3519, 3535, 3552, 3923, 4081, 4089, 4102, 2103, 4105, 4112 & 4120, Benoit Affidavit, Exhibits “B” & “H” and Benoit Transcripts, Exhibits “A”, “B” & “C”; J.A.R., Vol. 11, Tab 42B, pp. 2788, 2790, 2792 & 2814, MacDonald Affidavit, Exhibit “B”, p. 62-3, p. 80-1, p. 84-5 and 128-9; J.A.R., Vol. 12, Tabs 46, 46D & 46E, pp. 3276, 3318, 3322, 3348, Maticka-Tyndale Transcript. Q.378, line 23, Exhibit “D”, p. 149 & 153, Exhibit “E”, p. 6; J.A.R., Vol. 9, Tab 35C, p. 2227, Brock Transcript, Exhibit “C”, p. 2; J.A.R., Vols. 30 & 32, Tabs 64, 64B, 64C, pp. 8532, 8568, 8590, 9196, 9200, 9201, Weitzer Affidavit, para. 14, Exhibit “B”, p. 215 & Exhibit “C”, p. 29; J.A.R., Vol. 28, Tab 61G, pp. 8185, 8188, Affidavit of Barbara Sullivan, Exhibit “G”, pp. 5,8 78

Annex Five sets out some of the problems with the Applicants’ other experts in respect of the

claims they make.

D. THE APPLICANTS HAVE NOT MET THEIR ONUS OF PROOF

176. It is clear that the Applicants have not met their onus of proof:

(a) None of the social science evidence tendered warrants a finding of a s. 7 infringement, or of an unjustifiable s. 2(b) infringement with regard to any of the challenged offences; and

(b) Neither have the Applicants met their additional onus in the circumstances of this proceeding that the new social science evidence tendered warrants this Court revisiting the 1990 Reference “given the importance of the principle of stare decisis in our legal system449 and the Applicants “failure to show that there is a realistic possibility that the case will be overruled”.450

E. RESPONSE TO THE APPLICANTS’ ATTACK ON CANADA’S EXPERTS

177. The Applicants have vigorously attacked the social science evidence of harms related to prostitution as posited by Canada’s experts. They have done so by attacking this evidence on the basis that it does not comply with the principles of research methodology, or, in some cases, the attack is personal.

178. Issues relating to harms of prostitution and the sex industry around the world are controversial and provoke heated debate. The social science evidence of all of Canada’s experts complies with the principles of research methodology. Several of them are world- renowned experts, and have also taken positions against prostitution. It is their scholarship, however, that has informed these positions, and not the reverse. This can be contrasted with many of the Applicants’ experts whose advocacy appears to have led their scholarship. In some cases, the advocacy of the Applicants’ experts in support of decriminalization predates their own empirical research.451

449 J. Auth., Vol. 6, Tab 136, Wakeford at para. 14 450 Ibid. at para. 20 451 See para. 159 of this factum regarding the advocacy and scholarship of Dr. Lowman; J.A.R, Vol. 25, Tab 56, pp. 7206-7, Shaver Transcript, Qs. 90-93; and see also Annex Three: Problems with the Evidence of the Applicants’ Other Experts; indeed, Dr. Ron Weitzer, one of the Applicants’ two reply experts, expresses the 79

a) Dr. Melissa Farley

179. Dr. Farley has a Ph.D. in clinical psychology,452 and has been a practising

453 psychologist and researcher for more than 40 years. For the last 15 years, she has been engaged in conducting social science research with regard to a range of harms associated

454 455 with prostitution and trafficking, , both the psychological as well as the physical harms. It is worth noting that Dr. Farley is the only expert witness on either side of this proceeding with expertise in psychology, specifically, clinical psychology (another one of Canada’s experts, Dr.

456 Alexis Kennedy, having a Ph.D. in forensic psychology). The disciplines of the Applicants’ experts are limited to criminology, geography, sociology and political science.457

180. Dr. Farley has conducted research projects based on more than 900 interviews with women, girls, men and boys engaged in prostitution in ten different countries.458 This is more than any single expert in this matter. Dr. Farley has led two major empirical studies on the harms of prostitution, the first a five country study459 and the second, a nine country

460 461 study. Both have been published in peer-reviewed journals, and the nine country study included in her affidavit sets out the research methodology used in detail, over the course of

opinion that, while there is a paucity of research on off-street prostitution, street prostitution should continue to be criminalized but off-street prostitution decriminalized (J.A.R., Vols. 31 & 32, Tabs, 65A1 65B2 & 65C3, pp. 8988-9, 9042-9055 & 9055-60, Weitzer Transcript, Qs. 67-73, 239-280 & 281-293, Exhibits “1”, “2” & “3”) 452 J.A.R., Vol. 49, Tab 113A, p. 14274, Farley Affidavit, Exhibit “A”, Curriculum vitae 453 J.A.R., Vol. 49, Tab 113, p. 14222, Farley Affidavit, para. 2 454 J.A.R., Vol. 50, Tab 114, pp. 14641-42, Cross-examination of Dr. Melissa Farley, Q. 59 455 J.A.R., Vol. 50, Tab 114, pp. 14221, Cross-examination of Dr. Melissa Farley, para. 1 456 See this factum, para. 183 457 See this factum, para. 151: Dr. Lowman (geography and criminology); see Annex Five – Problems with the Evidence of the Applicants’ Other Experts: Drs. Shaver, Benoit, MacDonald, Maticka-Tyndale, Brock, Brannigan, Weitzer (sociology) & Dr. B. Sullivan (political science) 458 J.A.R., Vol. 49, Tab 113, p. 14222, Farley Affidavit, para. 4 459 J.A.R., Vol. 49, Tab 113, p. 14257, Farley Affidavit, para. 102, M; Baral, I. Kiremire, M; & Sezgin, U. (1998) “Prostitution in Five Countries: Violence and Posttraumatic Stress Disorder”, Feminism & Psychology, 8 (4): 405-426 460 J.A.R., Vol. 49, Tab 113B, pp. 14281-14322, Farley Affidavit, Exhibit “B”, “Prostitution and Trafficking in Nine Countries: An update on Violence and Posttraumatic Stress Disorder” 461 J.A.R., Vol. 49, Tabs 113 & 113B, pp. 14247 & 14281-14322, Farley Affidavit, para. 102, M; Baral, I. Kiremire, M; & Sezgin, U. (1998) “Prostitution in Five Countries: Violence and Posttraumatic Stress Disorder”, Feminism & Psychology, 8 (4): 405-426 & Exhibit “B”, M. Farley, A. Coton, J. Lynne, S. Zumbeck, 80 six pages.462 Dr. Farley also specifically addressed in her affidavit issues relating to research methodology in her discipline of clinical psychology.463While Dr. Farley seeks the abolition of prostitution,464 this position stems from her research.465 Specific allegations attacking Dr.

Farley’s stature as a researcher will be addressed in Annex Six.

b) Dr. Janice Raymond

181. Dr. Raymond has a Ph.D. in medical ethics,466 and is Professor Emerita at

467 University of Massachusetts, Amherst, U.S.A. She has held three different positions as a visiting scholar around the world.468 Dr. Raymond is a renowned scholar on the harms of sex trafficking, and, for 13 years, served as the Co-Executive Director of the International Coalition

Against Trafficking in Women (“CATW”). CATW is an international nongovernmental organization that has consultative status with the United Nations Economic and Social Council and is funded by private and public foundations and individual donations.469 As a researcher,

Dr. Raymond has been a principal investigator of two large empirical studies on the harms associated with prostitution and trafficking,470 and each has been published in a report that

471 explicitly sets out the methodology used. Dr. Raymond also seeks the abolition of prostitution,472 but sees the role of her research as separate from her role with CATW.473

F. Spiwak, M. Reyes, D. Alvarez & U. Sezgin, “Prostitution and Trafficking in Nine Countries: An Update on Violence and Posttraumatic Stress Disorder”, Journal of Trauma Practice, Vol. 2, No. 3/4, 2003, pp. 33-74 462 J.A.R., Vol. 49, Tab 113B, pp. 14286-14290, Farley Affidavit, Exhibit “B”, “Prostitution and Trafficking in Nine Countries: An Update on Violence and Posttraumatic Stress Disorder”, pp. 37-42 463 J.A.R., Vol. 49, Tab 113, pp. 14266-8, Farley Affidavit, paras. 136-141 464 J.A.R., Vol. 49, Tab 113, p. 14223, Farley Affidavit, para. 8 465 J.A.R., Vol. 50, Tab 114, p. 14844, Cross-examination of Dr. Melissa Farley, Qs. 759-60 466 J.A.R., Vol. 50, Tab 114, p. 14844, Cross-examination of Dr. Melissa Farley, Qs. 761-2 467 J.A.R., Vol. 55, Tab 119A, p. 16075, Raymond Affidavit, Exhibit “A”, Curriculum vitae 468 J.A.R., Vol. 55, Tab 119, pp. 16036-7, Raymond Affidavit, para. 4 469 J.A.R., Vol. 55, Tab 119, p. 16037, Raymond Affidavit, paras. 5-6 470 J.A.R., Vol. 55, Tab 119, p. 16048-9, Raymond Affidavit, paras. 35-36 471 J.A.R., Vol. 55 & 56, Tabs 119E & 119G, pp. 16115-55 & 16274-518, Raymond Affidavit, Exhibits “E” & “G”, paras. 35-36, Sex Trafficking of Women in the United States: International and Domestic Trends, pp. 26- 32 & Women in the International Migration Process: Patterns, Profiles and Health Consequences of Sexual Exploitation in Five Countries, pp. 5-6 472 J.A.R., Vol. 60, Tab 120, pp. 17597-9, Cross-examination of Dr. Janice Raymond, Qs. 482-7 473 J.A.R., Vol. 60, Tab 120, pp. 17498-99, Cross-examination of Dr. Janice Raymond, Qs. 483-4 81

c) Dr. Richard Poulin

182. Dr. Richard Poulin has a Ph.D. in sociology and is a full professor at the

University of Ottawa.474 He is a qualitative researcher,475 with a prolific scholarship focusing on prostitution, human trafficking, and the dynamics of the global sex industry with a particular

476 focus on minors in Canada and around the world. Dr. Poulin supports the abolition of prostitution,477 but his position stems from his research.478

d) Dr. Alexis Kennedy

183. Dr. Alexis Kennedy has a Ph.D. in forensic psychology and is now an Assistant

Professor in the Department of Criminal Justice at the University of Nevada.479 Canada relies on her social science evidence from two empirical studies in which she was one of the principal researchers – one on techniques used to recruit women into street prostitution based on interviews with 43 female prostitutes in the Downtown Eastside of Vancouver, and the other on men completing a diversion program known as the Prostitution Offender Program of British

480 Columbia. Both of these studies have been published in peer-reviewed journals setting out the methodology used,481 and have been approved by the Ethics Review Board of the

University of British Columbia.482

474 J.A.R., Vol. 40, Tab 102, p. 11379, Poulin Affidavit, para. 1 475 J.A.R., Vol. 43, Tab 105, pp. 12362-3 & 12494-7, Cross-examination of Richard Poulin, Qs.103-6 & 566- 572 476 J.A.R., Vol. 40, Tab 102, pp. 11380-2, Poulin Affidavit, paras. 3-9 477 J.A.R., Vol. 43, Tab 105, p. 12490, Cross-examination of Richard Poulin (Poulin Transcript), Q. 549 478 J.A.R., Vol. 43, Tab 105, p. 12353, Poulin Transcript, Q. 71 479 J.A.R., Vol. 46, Tab 107, p. 13238, Kennedy Affidavit, para. 1 480 J.A.R., Vol. 46, Tabs 107, 107B & C, pp. 13240 & 13269-88, Kennedy Affidavit, para. 6 & Exhibits “B” & “C”, Routes of Recruitment: Pimps' Techniques and other Circumstances that lead to Street Prostitution, Journal of Aggression, Maltreatment and Trauma, Vol. 15(2), 2007 & Attitude Change following a Diversion Program for Men who Solicit Sex, Journal of Offender Rehabilitation, Vol. 40(1/2), 2004 481 J.A.R., Vol. 46, Tab 107B & C, pp. 13273-4 & 13293-4, Kennedy Affidavit, Exhibits “B” & “C” 482 J.A.R., Vol. 46, Tab 107, p. 13240, Kennedy Affidavit, para. 8 82

e) Dr. Constance Lotte van de Pol

184. Dr. van de Pol is a social historian with a Ph.D. in the history of prostitution since

483 the 1400’s in the city of Amsterdam. For the purposes of her thesis, Dr. van de Pol engaged in extensive archival research on the judicial treatment of prostitutes over the centuries along

484 with other primary sources. The book that followed her thesis won a prestigious award and

485 is now being published by Oxford University Press. Although Dr. van de Pol is a renowned expert in the history of prostitution in the city of Amsterdam and the country of the

Netherlands,486 she takes no position in favour of any particular legal regime.487

f) Dr. Mary Sullivan

185. Dr. Mary Sullivan has a Ph.D. in political science from the University of

Melbourne.488 The focus of her thesis, and later, book, is the extent to which the different jurisdictions in Australia that have decriminalized and, in turn, legalized aspects of prostitution have been able to achieve their intended positive objectives.489 Towards that end, Dr. Mary

Sullivan synthesizes all existing sources as to the effects of the regimes, in light of those

490 objectives. She concludes that the new regimes have failed to deliver the positive objectives, and instead have delivered negative outcomes.491 The book that followed her thesis won a prestigious award.492 Dr. Mary Sullivan has expressed a strong position against prostitution493 but her position stems from her research. 494

483 J.A.R., Vol. 47, Tab 110, pp. 13498 & 13502, Dr. van de Pol Affidavit, paras. 2 & 15 484 J.A.R., Vol. 47, Tab 110, p. 13505, Dr. van de Pol Affidavit, paras. 20-21 485 J.A.R., Vol. 47, Tabs 110 & 110B, pp. 13503 & 13548-69, Dr. van de Pol Affidavit, para. 16 & Exhibit “B” 486 J.A.R., Vol. 47, Tab 110, pp. 13502-4 & S.J.A.R., Vol. 2, p. 26910, Dr. van de Pol Affidavit, paras. 14-19 & Answers to Written Questions , Q. 6 487 J.A.R., Vol. 47, Tab 110, pp. 13534-5, Dr. van de Pol Affidavit, paras. 88-90 488 J.A.R., Vol. 52, Tab 116, p. 15086, M. Sullivan Affidavit, para. 5 489 J.A.R., Vol. 52, Tab 116, pp. 15085 & 15097-8, M. Sullivan Affidavit, paras. 2-3 & 40 490 J.A.R., Vol. 54, Tab 117, pp, 15757-8, 15823-5, 15889 & S.J.A.R., Vol. 2, Tab 176C, pp. 26609-26853, M. Sullivan Transcript, Qs. 10, 259-262 & 452 & Answers to Undertakings # 3 491 J.A.R., Vol. 52, Tabs 116 & 116A, pp. 15085, 15097-8 15128, M. Sullivan Affidavit, para. 3, 40-2 & Table A 492 J.A.R., Vol. 54, Tab 117, p. 15770, M. Sullivan Transcript, Q. 46 493 J.A.R., Vol. 54, Tab 117, p. 15764, M. Sullivan Transcript, Q. 24 494 J.A.R., Vol. 54, Tab 117, pp. 15762 & 15780-2, M. Sullivan Transcript, Qs. 20 & 93-99 83

g) Dr. Ron Melchers

186. Dr. Ron Melchers is not an expert in prostitution, and makes no claim to be.495

Rather, Dr. Melchers is an expert in the principles of research methodology and their application, and the limits of what any researcher is able to conclude on the basis of his or her social science research, especially with regard to a hard-to-reach population such as those engaged in prostitution.496 Dr. Melchers has a Ph.D. in economics and is a professor of

497 criminology at the University of Ottawa. His sole focus in this case is in ensuring that this

Court has the means by which to assess the claims made by Dr. John Lowman on the basis of

498 his empirical research. Specific allegations attacking Dr. Melchers’ critique of Dr. Lowman are addressed in more detail in Annex Three.

h) Dr. John Pratt

187. Like Dr. Ron Melchers, Dr. John Pratt is not an expert in prostitution, and does

499 not claim to be. He received his Ph.D. from the Centre for Criminological Studies of the

University of Sheffield in the United Kingdom, and is now a professor at Victoria University in

500 Wellington, New Zealand. As a renowned scholar in the principles of research methodology, he was asked to provide a critique of the social science evidence relied on by the Prostitution

Law Review Committee’s 2008 report,501 mandated as it was by the New Zealand Government

502 to review the effects of the Prostitution Law Reform Act 2003. The Act was introduced to

495 J.A.R., Vol. 61, Tabs 122 & 124, pp. 17774 & 17874-5, Melchers Affidavit, para. 3 & Melchers Transcript, Q. 4 496 J.A.R., Vol. 61, Tabs 122 & 124, pp. 17775-7 & 17891, Melchers Affidavit, paras. 6-9 & Melchers Transcript, Q. 6 497 J.A.R., Vol. 61, Tab 122, p. 17775, Melchers Affidavit, para. 5 498 J.A.R., Vol. 61, Tab 122, pp. 17773-5 & 18020, Melchers Affidavit, paras. 1-4 & Melchers Transcript, Qs. 467-8 499 J.A.R., Vol. 62, Tab 125, p. 18031, Pratt Affidavit, para. 9 500 J.A.R., Vol. 62, Tab 125, p. 18028, Pratt Affidavit, paras. 2-3 501 J.A.R., Vol. 62, Tabs 125 & 125C, pp. 18027-8 & 18142-18318, Pratt Affidavit, para. 1 & Exhibit “C”, Report of the Prostitution Law Review Committee on the Operation of the Prostitution Reform Act, 2003 502 J.A.R., Vol. 62, Tab 125, pp. 18032-33, Pratt Affidavit, paras. 12-15 84

503 decriminalize aspects of prostitution and regulate them. Similar to Dr. Melchers, Dr. Pratt takes no position in favour of any particular regime.504 Rather, his affidavit just measures the extent to which the conclusions of the studies that the Committee relies upon are underpinned by the proper application of the principles of research methodology.505

F. THE PURPOSE AND INTERPRETATION OF THE CHALLENGED PROVISIONS 188. The Applicants allege that sections 210, 212(1)(j) and 213(1)(c) violate their s. 7 rights, and that para. 213(1)(c) violates their s. 2(b) rights. It is noteworthy that they have not challenged all of the prostitution-related provisions in the Criminal Code (for example, s. 211, ss. 212(3), and other parts of ss. 212(1)) but instead have cherry-picked the provisions they regard as most problematic from their perspective. The prostitution-related provisions of the

Criminal Code work together as an inter-connected whole to prevent the harms associated with prostitution; to denounce and deter the most harmful and public emanations of prostitution; to protect those engaged in prostitution; and to reduce the societal harm that results from vulnerable youth being lured into prostitution and neighbourhoods being exposed to the violence, drugs and other harms which often accompany prostitution.

189. In earlier sections of this factum, Canada has demonstrated that the evidence does not support the Applicants’ allegations that the challenged provisions cause harm; rather, the evidence reveals that prostitution is inherently harmful. This section reviews:

• the objective of the Criminal Code provisions and the legitimate state interests behind them; 506 • the judicial interpretation of the elements of these offences; and • the errors in the Applicants’ construction of the provisions demonstrating that, when properly construed, they do not prohibit certain conduct or give rise to the harms alleged.

503 J.A.R., Vol. 62, Tab 125, pp. 18032 & 18080-141, Pratt Affidavit, para. 11 & Exhibit “B”, Prostitution Reform Act, 2003 504 J.A.R., Vol. 62, Tab 125, p. 18031, Pratt Affidavit, para. 9 505 J.A.R., Vol. 62, Tab 125, pp, 18031-2 & 18066, Pratt Affidavit, paras. 10 & 95-97 506 J. Auth., Vol. 5, Tab 107, R v Sharpe [2001] 1 S.C.R. 45 (Sharpe) at para. 32 indicates that the first step in the analysis of constitutionality is to interpret the challenged provision to determine its nature and scope. 85

1) Paragraph 212(1)(j) – the purpose behind criminalizing living on the avails of prostitution 190. The s. 212 offence of “living on the avails” and other forms of procuring are aimed at preventing the manipulation of and profiting from prostitutes.

191. The Supreme Court considered the purpose of s. 212 in R. v. Downey. In

507 upholding the constitutionality of its evidentiary presumption Cory J. for the majority held that the target of the offence: “is the person who lives parasitically off a prostitute’s earnings”,508 i.e. the pimp, who “personifies abusive and exploitative malevolence”:509

It has been held correctly I believe that the target of s. 195(1)(j) is the person who lives parasitically off a prostitute's earnings. That person is commonly and aptly termed a pimp. See R. v. Grilo; R. v. Celebrity Enterprises Ltd.; and Shaw v. Director of Public Prosecutions.510 [Citations omitted] 192. Citing passages from the Fraser and Badgley Committee reports, Cory J. held that the legislative objective of the evidentiary presumption is “of sufficient importance to warrant overriding” the right to be presumed innocent, because “it is obvious that the section is attempting to deal with a cruel and pervasive social evil.”511 Later, he described the objective as “fundamentally important” and held that 512

In my view there cannot be any question of the importance of successfully prosecuting pimps. It is the pimp that has the parasite's interest in the prostitute's earnings. It is the pimp that encourages and enforces the activities of the prostitute. 2) Paragraph 212(1)(j) does not prevent prostitutes from accessing goods and services from others provided there is no “parasitism” 193. Paragraph 212(1)(j) makes it an offence to live on the avails of the prostitution of another person. The Applicants allege that that provision subjects individuals who provide goods or services to prostitutes and who live with prostitutes to prosecution, but this is only

507 J. Auth., Vol. 3, Tab 51, Downey at p. 17, Cory J.: “Section 195(2) (now s. 212(3)) provides that "[e]vidence that a person lives with or is habitually in the company of prostitutes. . . is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution".” 508 Ibid. at p. 32 509 Ibid. at p. 36 510 Ibid. at p. 32 511 Ibid. at p. 36 512 Ibid. at p. 39 86 true if these individuals live parasitically on the avails of a prostitute.513 In Shaw v. D.P.P.,514 the House of Lords formulated the test as follows:

“Living on” normally, I think, connotes living parasitically. It could have a wider meaning, but if it is to be applied at all to those who are in no sense parasites, then I think its meaning must be the same whether we are considering the earnings of prostitution or of any other occupation or trade. Viscount Simmonds, speaking for the majority also noted:

The subsection does not cover every person whose livelihood depends in whole or in part upon payment to him by prostitutes for services rendered or goods supplied, clear though it may be that payment is made out of the earnings of prostitution. The grocer who supplies groceries, the doctor or lawyer who renders professional service, to a prostitute do not commit an offence under the Act. It is not to be supposed that it is its policy to deny to her the necessities or even the luxuries of life if she can pay for them. . . .515 My Lords, I think that a person may fairly be said to be living in whole or in part on the earnings of prostitution if he is paid by prostitutes for goods or services supplied by him to them for the purpose of their prostitution which he would not supply but for the fact that they were prostitutes.516 194. In Barrow517 the accused ran an escort agency and took one third of the escorts’ earnings as her share for arranging the “dates”. The Court found her to be a “joint adventurer” with the prostitutes, and noted that her occupation was parasitic in that the occupation would not exist if the escorts had not been prostitutes.518 She fell, therefore within the scope of the living on the avails offence using the test in Shaw.

195. In Downey, the Supreme Court commented extensively about the harms which para. 212(1)(j) is intended to address and the importance of the evidentiary presumption in obtaining a conviction. It noted the difficulty in obtaining convictions against pimps based on testimony from prostitutes:

513 Applicants’ factum, para 453 514 J. Auth., Vol. 6, Tab 132, [1962] A.C. 220. (H.L.) at p. 270 (Shaw) 515 Ibid. at p. 263 516 Ibid. at p. 264 517 J. Auth., Vol. 2, Tab 29, R. v. Barrow, [2001] O.J. No. 2219 (C.A.) (Leave to appeal to the Supreme Court of Canada dismissed) 518 Ibid. at para 29 87

“despite the abusive and corrosive relationship that exists between the pimp and the prostitute, many prostitutes are strongly attached to their pimps and truly believe that they are in love with them.”519 “Whether the pimps maintain control by the emotional dependence of prostitutes upon them or by physical violence, prostitutes have exhibited a marked reluctance to testify against their pimps.”520 196. This judicial interpretation of para. 212(1)(j) does not support the Applicants’ allegations that this offence necessarily forces prostitutes to rely on the criminal element to supply the services to engage in prostitution in a “safer” way.

3) Paragraph 212(1)(j) does not prevent prostitutes from living with someone as long as that person is not living off of them in a parasitic way

197. The Ontario Court of Appeal decision in Grilo521 makes it clear that para.

212(1)(j) does not criminalize partners, spouses or others who live with prostitutes, unless they are living in a parasitic relationship with the prostitute. The Court slightly modified the test to determine parasitism in the context of a live-in partner as opposed to an arm’s length relationship: 522

In the case of living arrangements the test obviously must be modified. In my view, the proper question is whether the accused and the prostitute had entered into a normal and legitimate living arrangement which included a sharing of expenses for their mutual benefit or whether, instead, the accused was living parasitically on the earnings of the prostitute for his own advantage. 198. The Court established that the recipient of funds must be someone the prostitute is not legally or morally obliged to support: 523

The true parasite whom s. 212(1)(j) seeks to punish is someone the prostitute is not otherwise legally or morally obliged to support. Being a prostitute is not an offence, nor is marrying or living with a prostitute. A person may choose to marry or live with a prostitute without incurring criminal responsibility as a result of the financial benefits likely to be derived from the pooling of resources, and the sharing of expenses or other benefits which would normally accrue to all persons in similar situations.

519 J. Auth., Vol. 3, Tab 51, Downey at p. 34 520 Ibid. at p. 34. 521 J. Auth., Vol. 3, Tab 60, R. v. Grilo (1991), 2 O.R. (3d) 514 522 Ibid. at p. 521 523 Ibid. at pp. 521-2 88

199. To illustrate, individuals in the following circumstances were not convicted of s.

212(1)(j):

• the owners, managers and employees of a night club frequented by prostitutes (Celebrity Enterprises);524 • a man romantically involved with a prostitute who shared rent with her and was given food out of her earnings from prostitution (Grilo); and • the agent of a stripper, who arranged the stripper’s flight to Canada, accommodations, and club bookings and who received repayment for disbursements made in obtaining jobs, including the stripper providing sexual services (R. v. Saftu).525 200. The Applicants allege that para. 212(1)(j) extends to non-parasitic conduct, and to illustrate that point, they quote526 a sentencing decision in R. v. Manion,527 in which a person who ran an escort agency was sentenced for living on the avails of prostitution.

However, the quote is incomplete and does not support their assertion that parasitism is not involved:

Those who are "pimps" live on the avails of prostitution by having a parasitical relationship with the prostitute. That relationship was described in R. v. Downey (1992), 136 N.R. 266 (S.C.C.) at paragraphs 37 - 44. In the case at Bar, the element of that type of parasitism is absent. [Emphasis added to indicate portions of the quote omitted from Applicants’ factum] 201. In addition, the Applicants cite two Saskatchewan Queen’s Bench cases528 to suggest that parasitism is not a necessary element to establishing “living on the avails”. These lower court cases are not good law, however. They have not been followed and conflict with the Supreme Court decision in Downey and other appeal court decisions such as R. v.

Bramwell529 and R. v. Nicolaou.530 Additional inaccurate statements made in the Applicants’ factum are set out in Annex Eight.

524 J. Auth., Vol. 3, Tab 43, R. v. Celebrity Enterprises Ltd, [1977] 4 W.W.W. 144 (B.C.C.A) 525 J. Auth., Vol. 5, Tab 105, [2001] O.J. No. 3046 (Ont. C.J.)(Saftu) 526 At para. 457 of Applicants’ factum 527 J. Auth., Vol. 4, Tab 79, R. v. Manion (2005), 377 A.R. 95 (Prov. Ct) at p. 99 528 At para. 456 of Applicants’ factum 529 J. Auth., Vol. 2, Tab 36, (1993), 86 C.C.C. (3d) 418 (B.C.C.A.) (Bramwell) 530 J. Auth., Vol. 5, Tab 91, (2008), 249 C.C.C. (3d) 833 (B.C.C.A.)(Nicolaou) 89

4) Section 210 bawdy house offences – purpose and interpretation

202. Subsection 210(1) makes it an indictable offence for anyone to keep a common

bawdy house.531 Subsection 210(2) creates three different summary conviction offences:

• being an inmate of a common bawdy house;532 • being found without lawful excuse in a common bawdy house;533 and • knowingly permitting a place to be let or used for the purposes of a common bawdy house, as an owner or someone in control of the place.534 203. To constitute a common bawdy house, premises must have been used

535 “frequently or habitually” either for the purposes of prostitution or for acts of indecency.

204. Prostitution has been defined as “lewd acts for payment for the sexual

gratification of the purchaser.”536 The following activities have been found to fall in that

definition:

• sado-masochistic activities, even those that do not involve genital touching, provided that the acts can be considered to be sexually stimulating;537

531 To constitute the offence of keeping a common bawdy house: • there must be proof that the accused had some degree of control over the care and management of the premises (J. Auth., Vol. 3, Tab 47, Corbeil, supra) • it is unnecessary to show that the accused participated in the day-to-day running of the premises where s/he is shown to be the directing mind of the corporation which owned the premises, to have participated in the management, to have received the proceeds and to have been aware of the activities taking place on the premises (J. Auth., Vol. 5, Tab 120, R. v. Woszczyna; R. v. Soucy (1983), 6 C.C.C. (3d) 221 (Ont. C.A.)); The offence applies to an accused who uses her own residence for the purposes of prostitution (J. Auth., Vol. 5, Tab 119, R. v. Worthington (1972), 10 C.C.C. (2d) 311, 22 C.R.N.S. 34 (Ont. C.A.). 532 J.A.R. Vol. 66, Tab 145A, p. 19416 One of the purposes of the inmate offence was to permit the rehabilitation of prostitutes. See comments of the Minister of Justice regarding the 1915 amendments: Commons committee debates, per Charles Doherty, Min of Justice. 533 J. Auth., Vol. 4, Tab 75, To constitute the offence of being found in a common bawdy house, an accused must have been perceived there or seen by someone; mere proof of presence on the premises in question at some earlier time is not sufficient. Evidence that an accused was seen entering or leaving is sufficient to prove the offence (R. v. Lemieux (1991), 70 C.C.C. (3d) 434, [1992] R.J.Q. 295, 44 Q.A.C. 1 (C.A.) 534 This offence is directed at the person who has actual charge or control; s/he should have the right to intervene forthwith such that her/his failure to do so could be considered the granting of permission, i.e. in the case of leased premises, it is the tenant not the landlord who has charge or control (J. Auth., Vol. 5, Tab 118, R. v. Wong (1977), 33 C.C.C. (2d) 6, 2 Alta. L.R. 90 (S.C. App. Div.) 535 Section 197(1) of Criminal Code and J. Auth., Vol. 5, Tab 95, Patterson at p. 162 (S.C.C.) 536 J. Auth., Vol. 2, Tab 33, R. v. Bedford (2000), 184 D.L.R. (4th) 727 at para 25 (C.A.), leave to appeal to S.C.C. refused 147 C.C.C. (3d) vi, 193 D.L.R. (4th) vii (Bedford) 537 Ibid. at para. 26 90

• acts that take place in a private room in a club and that are sexual in nature but do not involve physical contact between client and performer, such as masturbation;538 • masturbation of a client in the context of a massage parlour, whether or not the client climaxes;539 • lap-dancing, which involves sitting in the client’s lap and simulating intercourse;540 and • acting as an escort where acts involving bondage, humiliation and domination are performed, even where the escort service has specified that the person need not and did not have sexual intercourse with clients.541 542 205. Lap-dancing has also been found to meet the definition of “acts of indecency”.

However, activities that take place in the context of a “swingers’ club”, where sexual activity takes place between consenting adults, without payment, have not.543

206. An act can constitute prostitution without necessarily being indecent and this can

544 be the basis for a successful bawdy house charge.

538 J. Auth., Vol. 5, Tab 112, R. v. St-Onge, [2001] J.Q. no 2822; 155 C.C.C. (3d) 517 at paras. 9 - 11; 44 C.R. (5th) 395; 50 W.C.B. (2d) 485 (C.A.). (St-Onge) Here the Court found that an act of prostitution is not necessarily also indecent; the Supreme Court of Canada held that similar activities were not “indecent” (J. Auth., Vol. 5, Tab 116, R. v. Tremblay, [1993] 2 S.C.R. 932 at p. 971-2 (Tremblay) 539 J. Auth., Vol. 5, Tab 90, R. v. Ni (2002), 158 O.A.C. 230 at para. 2, 53 W.C.B. (2d) 485 (C.A.); J. Auth., Vol. 3, Tab 37, R. v. Brandes, [1997] O.J. No.5443 at para. 15 (Ont. C.J. (Prov. Div.)). But note a different result in J. Auth., Vol. 5, Tab 99, R. v. Ponomarev, [2007] O.J. No. 2494 (Ponomarev) 540 J. Auth., Vol. 3, Tab 41, Caringi at paras. 7 & 38; J. Auth., Vol. 2, Tab 27, R. v. Akouros, [2006] O.J. No. 285 (S.C.J.) 541 J. Auth., Vol. 5, Tab 99, R. v. Polyak, [1991] O.J. No.846 (Ont. C.J. (Prov. Div.)) 542 J. Auth., Vol. 4, Tab 81, Mara, supra in which the Supreme Court of Canada found that sexual touching (e.g. breasts and genitals) during “lap-dances” constitutes acts of indecency, and Caringi, supra However, the Supreme Court of Canada upheld a lower Court decision that found dances in which clients were allowed to touch the breasts and thighs of the dancers not to constitute acts of indecency (J. Auth., Vol. 5, Tab 96, R. v. Pelletier, [1999] 3 S.C.R. 863). Note that both of these decisions were handed down prior to J. Auth., Vol. 4, Tab 73, R. v. Labaye , [2005] 3 S.C.R. 728 (Labaye) and the Court in, supra chose to follow Mara, supra and not Pelletier, supra 543 Ibid. (Labaye)at paras. 5-8, 64-70, 34 C.R. (6th) 1, and J. Auth., Vol. 4, Tab 71, R. v. Kouri, [2005] 3 S.C.R. 789, at para 1 (Kouri). These cases represent the Supreme Court of Canada’s most recent pronouncement on how to interpret the term “acts of indecency”; the community standards of tolerance test previously used to determine whether an act is indecent was replaced with the harm-based test outlined above. Notably, there have been only three lower Court decisions subsequent to the Labaye and Kouri decisions that interpret the meaning of “acts of indecency” or “indecency” with reference to the Supreme Court of Canada’s decision in J. Auth., Vol. 4, Tab 73, Labaye, supra (J. Auth., Vol. 5, Tab 108, R. v. Sheikh, [2008] O.J. No. 1544, at paras. 23-29 (Ont. Sup. C.J.), J. Auth., Vol. 3, Tab 55, R. v. Ellison, [2006] B.C.J. No.3241 (B.C.P.C.), J. Auth., Vol. 5, Tab 99, Ponomarev, supra) 544 J. Auth., Vol. 5, Tab 112, In St-Onge at paras 9-11, the Que CA upheld a conviction for keeping a common bawdy house for acts which were held not to be indecent, but which did constitute prostitution. J. Auth., Vol. 5, Tab 116, In Tremblay at p. 956 and p. 972, similar acts of simulated masturbation were held by the majority of the Supreme Court not to be indecent, and because the information laid had not alleged 91

207. These offences relating to bawdy houses in s. 210 work in conjunction with several of the procuring offences in s. 212 to control the “institutionalization and commercialization of prostitution”,545 and the harm experienced by vulnerable persons involved in prostitution that takes place out of the public view.

208. Section 210 targets all direct participants of bawdy-house prostitution, including the operators, prostitutes as well as johns. Section 212 prohibits a range of harmful conduct that takes place in, or occurs because of, bawdy-houses, including procuring a person to become a prostitute in a bawdy-house, concealing a person in a bawdy-house and, of course, living on the avails of a prostitute working in a bawdy-house.

209. The Supreme Court has recognized the legislative objectives of the bawdy- house offences as including the prevention of injuries to “the public morals, health,

546 convenience or safety”, as well as the historically more emphasized harm of nuisance.

While s. 210 is intended both to prevent harm to individuals and to society as well as to prevent nuisance, the nuisance aspect has been de-emphasized over time, as evidenced by the separation in 1954 of the bawdy-house provision from the vagrancy and nuisance offences into a distinct part of the Code.547

5) The premises must be frequently and habitually used for prostitution or for indecent acts to be considered a bawdy house 210. The Applicants argue that, in light of the requirement that the premises be used

“frequently or habitually”, “there must be some degree of public exposure and annoyance being created by the presence of the home”548 for it to constitute a common bawdy house.

that the bawdy house was "used for the purposes of prostitution", only for "the practice of acts of indecency", [amendment not allowed, at p. 956] the accused was acquitted of keeping a common bawdy house. 545 J.A.R., Vol. 71, Tab 154B, p. 20922, Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution, Volume 2 (Fraser Report) 546 J. Auth., Vol. 5, Tab 95, Patterson at p. 435 (C.A.) per Schroeder J.A. (dissenting), rev’d [1968] S.C.R. 157, and cited with approval in J. Auth., Vol. 5, Tab 102, R. v. Rockert, [1978] 2 S.C.R. 704 at p. 712 547 J.A.R., Vol. 67, Tab 149, pp. 19,619, 19,627-29, 19,634-35, Criminal Code, S.C. 1953-54, c. 51, Parts IV and V. See also J.A.R., Vol. 64, Tab 127, p. 18746, Affidavit of Lucie Angers, para. 19 548 Applicants’ factum, para 449 92

However, public exposure and annoyance do not constitute requisite elements of the s. 210 offence.

211. The Applicants base their assertion on a misreading of Patterson, at para. 449 of their factum. In Patterson, Spence J. for a unanimous court stated that the words “kept or occupied” and the words “resorted to” in para. 168(1)(b) [now ss. 197(1)] “connote a frequent or habitual use of the premises for the purposes of prostitution.” He then stated that “there has been evidence, in each case where conviction has resulted, of one of three types,

firstly, there has been actual evidence of the continued and habitual use of the premises for prostitution as in The King v. Cohen and Rex v. Miket, secondly, there has been evidence of the reputation in the neighbourhood of the premises as a common bawdy house, or thirdly, there has been evidence of such circumstances as to make the inference that the premises were resorted to habitually as a place of prostitution, a proper inference for the court to draw from such evidence.”549 212. Any one of these three types of evidence can be used to establish the fact that the premises were frequently or habitually used for prostitution. This frequent and habitual use of the premises is a necessary element of the offence. It is not the case (and Patterson does not state) that public exposure and annoyance is needed, nor is the offence grounded simply in nuisance.

213. The harms which s. 210 addresses include those inherent in prostitution, not just the harms related to nuisance or to the public display of the commodification of sex. As noted by Gonthier J. in Tremblay, “if the removal of the activity occurring in a common bawdy-house from the sight of the general public had of itself a great significance, there would be little need for s. 210 of the Criminal Code.”550

549 J. Auth., Vol. 5, Tab 95, Patterson at p. 161(S.C.C.) 550 J. Auth., Vol. 5, Tab 116, Tremblay at p. 943, dissenting but not on this point. 93

214. In addition, s. 210 provides a means of locating women and children being held and prostituted against their will. Persons held against their will can use duress as a valid

551 defense to avoid a conviction under this or any other offence.

6) Paragraph 213(1)(c) – purpose behind criminalizing communicating for the purpose of prostitution

215. The offence of communicating in public places for the purpose of prostitution in para. 213(1)(c) is aimed at preventing the harms arising from street prostitution, including street and social nuisance. The parliamentary record shows that legislators discussing this issue throughout the 1980s recognized the harms not only to the affected neighbourhoods and society at large but also to the prostitutes themselves, as did all members of the Supreme

Court in the Prostitution Reference.

216. In the Prostitution Reference, the Court was unanimous in finding that the objectives of para. 213(1)(c) were sufficiently pressing and substantial to justify limiting Charter rights. It was agreed by all that the offence was directed at the harms arising from communicating for the purpose of prostitution such as: street and traffic congestion; noise; harassment of non-participants; and harmful effects on passers-by or bystanders who are compelled to witness the public selling of sex, especially children.552

217. Lamer J. additionally found that the offence was aimed at the harms caused to those directly involved in the entire cycle of street prostitution including: the exposure of this degrading and exploitative activity to young runaways and other vulnerable persons (usually women); their recruitment by pimps and procurers; and the subsequent exertion of control by

551 J. Auth., Vol. 5, Tab 103, R. v. Ruzic, [2001] 1 S.C.R. 687 552 J. Auth., Vol. 6, Tab 125, Prostitution Reference, Dickson C.J. at p. 1135; Lamer J. at p. 1194; Wilson J. at p. 1211 94

553 the pimp using physical violence, drug dependency and psychological manipulation. All

Supreme Court Justices recognized the serious harms caused by prostitution.554

218. The parliamentary record, reviewed in greater detail in Annex Two, equally shows that legislators from all major parties recognized the harms to the prostitutes

555 themselves, and that prostitution was not an activity that should be condoned. In 1985, when Parliament enacted para. 213(1)(c), the Minister of Justice in his opening speech during

Second Reading referred to the “terrible risk” of “violence and exploitation by customers and

556 pimps” that street prostitutes take.

7) Paragraph 213(1)(c) does not prevent prostitutes from communicating with each other to enhance “safety”

219. Paragraph 213(1)(c) does not prohibit all communications relating to prostitution generally but only those between a john and prostitute for the sale of sexual services in a public place. It does not prevent prostitutes from communicating with each other for the purpose of identifying potentially dangerous johns or exchanging other information relating to their safety, or working together. The leading case on the interpretation of para. 213(1)(c) is the Prostitution Reference, where Lamer J. stated:

The prohibited communication relates to a particular message sought to be conveyed, namely the communication for the purpose of engaging in

553 Ibid. Lamer J. at p. 1193-95 554 Even though Dickson C.J. and Wilson J. did not find it necessary to conclude that the law was directly addressed at these harms as in order to dispose of the constitutional questions referred to them (narrower than those raised in this case), it is clear from their judgments that they recognized the existence of these harms. For example, Dickson C.J. acknowledged that “the exploitation, degradation and subordination of women … are part of the contemporary reality of prostitution” Ibid. at p. 1134-5. Moreover, Wilson J. agreed with Lamer J.’s reasons for concluding that prostitution is “a degrading way for women to earn a living” – Ibid. at p. 1210 555 For example, the report of the 1982-83 House Standing Committee, whose recommendations formed the basis of the current section 213(1)(c), stated that it heard “considerable evidence as to the need for initiatives” to help street prostitutes “who are exploited by others” J.A.R., Vol. 70, Tab 152R, p. 20804, Report of the House Standing Committee 556 J.A.R., Vol. 72, Tab 155A, p. 21283, John Crosbie (Min. of Justice). The Opposition Justice Critic, Bob Kaplan, Lib., speaking about the procuring of vulnerable persons, especially women and young people, and the exploitative nature of prostitution, said that “the street prostitute is exploited, and this is a serious factor”, J.A.R., Vol. 72, Tab 155A, p. 21285; Svend Robinson, a New Democrat MP, expressed similar sentiments: “I am sure all of us would seek the eradication of prostitution as our objective. It is a practice that degrades and exploits women and young people.” J.A.R., Vol. 72, Tab 155A, p. 21288 95

prostitution. Most often this type of communication involves an offer and an acceptance.557 220. Paragraph 213(1)(c) is aimed at taking communicating for the purposes of prostitution out of public view to respond to the problems that the public display of the sale of sex creates.558 In the course of its analysis as to whether the infringement by para.195.1(1)(c)

[now para. 213(1)(c)] on the right to freedom of expression was justified, the Supreme Court considered the scope of the provision in reaching the conclusion that it was not unduly intrusive. The Court found the focus of the provision to be the communications between prostitute and john.

221. Similarly, on a plain reading, neither s. 210 nor para. 212(1)(j) prevents prostitutes from collecting and sharing information with each other about dangerous johns.

8) Parliament has a legitimate state interest in criminalizing prostitution-related activity, including the activity proscribed by sections 212(1)(j), 210 and 213(1)(c)

222. Paragraph 212(1)(j) is intended to address the significant risks and harms to vulnerable women and to society at large caused by pimps living on the avails of prostitution.

Section 210 works in conjunction with the procuring offences in s. 212 to control the

“institutionalization and commercialization of prostitution”559 and the harm which is experienced by vulnerable persons involved in prostitution outside of public view. Paragraph

213(1)(c) is aimed at preventing the harms that arise from the public communication of the sale of sex, including community harm, influence on vulnerable youth, and harm to the prostitutes themselves. These offences, along with the other prostitution-related offences in the Criminal Code, reflect Parliament’s view that prostitution is inherently harmful and should be discouraged wherever it is practiced.560

557 J. Auth., Vol. 6, Tab 125, Prostitution Reference at p. 1188 558 Ibid. at p. 1135 559 J.A.R. Vol. 71, Tab 154B, p. 20922, Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution, Volume 2 (Fraser Report) 560 As Lamer J. stated in the Prostitution Reference: “Among the offences that relate to prostitution are the bawdy-house provisions, the procuring and pimping provisions, as well as other more general offences that indirectly have an impact on prostitution related activities; for example provisions such as disturbing the 96

223. The evidence of these harms is amply demonstrated in the record and is summarized in the Facts portion of this factum. There is therefore a legitimate state interest in criminalizing the activities in sections 212(1)(j), 210, and 213(1)(c) in order to address these harms.

G. THE CHALLENGED PROVISIONS, INDIVIDUALLY OR COLLECTIVELY, DO NOT INFRINGE THE APPLICANTS’ SECTION 7 RIGHTS

1) Overview of Section 7 Argument 224. Canada concedes that the Applicants’ right to liberty is engaged by the challenged provisions, but not the right to security of the person. While prostitution is an inherently risky activity regardless of what venue it is practiced in, the Applicants have entirely failed to establish - on the evidence - any causal connection between this risk of harm and the challenged provisions. The Applicants’ argument is based upon the false premise that there is a constitutional right to engage in prostitution, which there is not, and there is no evidentiary or legal basis to revisit the Supreme Court’s 1990 Prostitution Reference, which considered and upheld two of the three provisions in issue in this case.

225. Furthermore, the Applicants’ s. 7 argument invites this Court to second-guess difficult legislative choices designed to balance all of the myriad of rights and interests at stake

– relying upon contested social science evidence supplemented by “anecdotal evidence,

561 government reports and studies and common sense”. Nothing in the s. 7 jurisprudence justifies a departure from the normal onus of proof lying upon the Applicants to make out their claim on reliable evidence on the balance of probabilities. The Applicants’ evidence does not provide any scientific basis for drawing the causal link they allege, nor even a sufficient basis for drawing such a link by applying logic and common sense. They have failed to meet their

peace. In my view, these laws indicate that while on the face of the legislation the act of prostitution is not illegal, our legislators are indeed aiming at eradicating the practice” J.A.R. Vol. 6, Tab 125, Prostitution Reference at 1191 561 Applicants’ Factum at para. 123 97 onus to establish that the three challenged provisions individually or collectively are not in accordance with any principles of fundamental justice.

226. In order to establish an infringement of s. 7, the Applicants must establish: (1) that the law infringes one of their s. 7 interests – life, liberty or security of the person; and (2) that the law that is responsible for that infringement is not in accordance with the principles of fundamental justice.562

2) The provisions engage the right to liberty but not the right to security of the person

227. Canada agrees with the Applicants that their right to liberty is engaged, because of the possibility of imprisonment contemplated by all three challenged offences.563

228. Even though the Applicants have met the first step of the s. 7 analysis owing to the right to liberty being engaged, it is important to consider their additional claim that their

“security of the person” interest is infringed,564 as this provides important context to the gross disproportionality argument.

229. The challenged provisions do not infringe the Applicants’ right to security of the person because the harms suffered by prostitutes are not caused by the challenged provisions. The right to security of the person protects against “state interference with bodily

565 integrity and serious state-imposed psychological stress”. The Applicants have not established a “sufficient causal connection”566 between the laws and the harms suffered by prostitutes. In fact, they have established no causal connection at all.

562 J. Auth., Vol. 6, Tab 125, Prostitution Reference at p. 1140 (per Dickson C.J.); J. Auth., Vol. 1, Tab 3, Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at para. 47(Blencoe) 563 J. Auth., Vol. 6, Tab 126, Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; J. Auth., Vol. 4, Tab 78, Malmo-Levine at para. 84 The Applicants do not claim that the provisions engage their right to life 564 Ibid. (Malmo-Levine) at para. 88 565 J. Auth., Vol. 4, Tab 86, R. v. Morgentaler, [1988] 1 S.C.R. 30 at p. 56 (Morgentaler); J. Auth., Vol. 1, Tab 3, Blencoe at para. 55 [emphasis added]. Applicants’ Factum para. 427 566 Ibid. ( Blencoe) at para. 60 98

230. Many of the Applicants’ complaints relate to discretionary practices adopted by the police that are not mandated by the law itself. As the Applicants seek a declaration of invalidity under s. 52 of the Constitution Act, 1982, they must establish that the law itself, not

567 simply the administration or enforcement of the law, causes the harm. The source of the breach must be on the face of the legislation, or in its necessary effect.

231. One of the Applicants’ primary arguments is that the way some police services enforce (and not enforce) the laws “force” survival sex workers into vulnerable areas, such as isolated streets and industrial areas. However, these policing techniques are not used by all police forces. Furthermore, even if they are used by some police forces – they certainly are not mandated by the Criminal Code. On its face, the law applies everywhere. Thus, any harm that may arise out of these police techniques is irrelevant to the legal analysis in this case, since the Applicants are seeking a remedy under s. 52.

232. Furthermore, it is legitimate for police to exercise discretion in deciding when and whether to arrest and lay charges against individual offenders in specific circumstances.

The Supreme Court has held that police discretion is “an essential feature of the criminal

568 justice system” and is in accordance with principles of fundamental justice. Where, “in a particular case, it was established that a discretion was exercised for improper or arbitrary motives, a remedy under s. 24 of the Charter would lie”, not a remedy under s. 52.569

233. The Applicants also claim that the provisions contribute to legal structures which propagate the belief that a prostitute is responsible for her own victimization (“they deserve what they get”). This propagated belief, according to the Applicants, results in police being unwilling to help prostitutes when they are victims of violence and causes prostitutes to be

567 J. Auth., Vol. 2, Tab 21, Little Sisters Book and Art Emporium v. Canada, [2000] S.C.R. 1120 at paras. 73 (Little Sisters) 568 J. Auth., Vol. 2, Tab 31, R. v. Beare, [1988] 2 S.C.R. 387 at. p. 410 569 Ibid., at p. p. 411; See also J. Auth., Vol. 2, Tab 32, R. v. Beaudry, [2007] 1 S.C.R. 190, 2007 SCC 5 at paras. 35-39 99

unwilling to approach the police for help. This is not supported by the evidence that establishes that there have been major improvements in police responsiveness to and investigation of violence against prostitutes in Canada, including the establishments of units

570 devoted to it. Even if the allegation could be established, however, there is nothing in the

Criminal Code that would condone lack of attention by police in investigating violence against prostitutes. Thus, any harm that may arise out of alleged police indifference is irrelevant here, as the Applicants are seeking a remedy under s. 52.

234. The Applicants do not claim to satisfy the strict test that, “but for” the criminal

571 prohibitions, the prostitutes would not suffer the harms. Instead, they appear to claim an indirect causal connection between the law and the harms, which they define as a “material

572 573 contribution”. They also allege that the law “increases the risks of violence” for prostitutes

– but acknowledge in their evidence that “the criminal law prohibition is not the direct cause of

574 violence against prostitutes … but … a sufficient and indirect cause”. This does not constitute a “sufficient causal connection” to establish an infringement of the right to security of the person, even assuming that the Applicants’ evidence supports such a finding.

235. The Supreme Court in Blencoe specifically affirmed the requirement for a direct

575 causal relationship, referring to both Morgentaler and Rodriguez. The Court in Blencoe noted that “government actions deprived Mrs. Rodriguez of the right to terminate her life at the time of her choosing.” But for the criminal prohibition against assisted suicide, Mrs. Rodriguez would not have been deprived of security of the person. Similarly, in Morgentaler, the delays in

570 J.A.R., Vol. 37, Tab 91, p. 10671, Dizon Affidavit, para. 4 571 J. Auth., Vol. 1, Tab 3, Blencoe at para. 64 572 Applicants’ Factum at paras. 431-32 573 Applicants’ Factum at para. 481 574 Applicants’ Factum at para. 171 575 Although the Supreme Court in Blencoe, supra assumed without deciding that there was a sufficient nexus between the delay in the human rights complaints process and the prejudice suffered by Mr. Blencoe, its reasons nevertheless cast great doubt on the argument that it would have been sufficient to establish simply that the delay was a “contributing cause” of, or “exacerbated”, the prejudice: J. Auth., Vol. 1, Tab 3, Blencoe at paras. 69-70 100 obtaining abortions were caused by the mandatory procedures in the Criminal Code and, but for those requirements, the women would not have suffered the health risks caused by the delays.576

236. Even if “material contribution” were sufficient to establish an infringement (which is denied), the Applicants have not established, on the balance of probabilities, that the laws materially contribute to either the physical or psychological harms suffered by prostitutes.

Specifically, with respect to risk of physical harm:

(a) The evidence, even from the Applicants’ affiants, supports the position that prostitution is inherently risky regardless of the venue;577

(b) There is no evidence supporting a hard divide between street and off-street prostitution. On the contrary, the evidence establishes fluidity and cross-over between venues;578

(c) Prostitution is inherently risky regardless of the legal regime. The evidence does not support that prostitution is “safer” in legalized or decriminalized regimes than criminalized regimes;579

(d) There is no evidence that rates of violence or homicide increased after the 1985 amendments to the prostitution laws;580

(e) There is no evidence that the laws are the cause of or increase the risk of violence by persons wishing to harm prostitutes or propagates the belief a prostitute is responsible for her own victimization;581 and

(f) The provisions do not prevent prostitutes from sharing information, working together, or hiring services which might increase their “safety”, nor do the provisions 582 force them to work in remote locations.

576 J. Auth., Vol. 1, Tab 3, Blencoe at paras. 69-70. More recently, in Chaoulli, the three judges that found a breach of the Canadian Charter held that the right to security of the person was infringed because the applicants had established that there were delays in medical treatments that the applicants would not have sustained “but for the prohibition on medical insurance”: J. Auth., Vol. 1, Tab 10, Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791 at para. 111 [emphasis added] (Chaoulii) 577 J.A.R., Vol. 4, Tab 20, p. 876, Cross-examination of Wendy Babcock (Babcock Transcript), p. 88, line 20; J.A.R., Vol. 26, Tab 59, p. 7541, Casey Transcript, p. 104, line 11-13; J.A.R., Vol. 31, Tab 65, p. 9077 and p. 9097, Weitzer Transcript, p. 106, line 20 and p. 126, lines 10-11; J.A.R. Vol. 21, Tab 53, p. 6341 and p. 6347, Lowman cross-examination, Q. 1431 and 1445 578 See this factum at Part I, Section D, paras. 31-37 579 See this factum at paras 110 and 116, and J.A.R. Vol. 52, Tab 116, pp. 15100-2 and pp. 15117-20, M. Sullivan affidavit, paras. 46-50 and 85-92 580 See Annex Three at paras. 16-19 581 See this factum para. 170 and Annex Three 101

237. It is important to note that many of the harms that the Applicants allege do not result from the laws, but rather, from violating them. Selling sexual services in more isolated areas of the city and getting into vehicles quickly, in order to avoid detection by police and attention of residents, simply amount to committing the offence of communicating in a public place for the purpose of prostitution more quickly and more secretively. Being convicted of offences under the challenged provisions also results from violating them. As the Supreme

Court held in Malmo-Levine, refusal to comply with the law and experiencing the adverse consequences associated with the criminal justice system in general are not adverse effects that can support a finding of constitutional invalidity under s. 7 of the Charter.583

238. With respect to psychological harm or stress, the Applicants do not explicitly set out what evidence they rely on in this respect in their Factum. To the extent it is implicit in their argument, harm in the form of psychological stress can engage the right to security of the

584 person, but only if it is state-imposed and serious.

239. Canada recognizes that prostitutes suffer serious psychological harm caused by their involvement with prostitution itself, including as a result of the actions and behaviours of

585 pimps and johns. The Applicants minimize this type of harm. It is also clear that it is not caused by the state.

240. The Applicants argue that the challenged provisions result in stigma

“dehumanizing sex workers in the eyes of johns, police and the wider public – turning them

582 See paras 193-6 and paras. 219-221 of this factum, and J.A.R., Vol. 33, Tab 67, p. 9469, Falle Affidavit, para 67 583 J. Auth., Vol. 4, Tab 78, Malmo-Levine at 654-58 584 J. Auth., Vol. 4, Tab 86, Morgentaler at 56; J. Auth., Vol. 2, Tab 25, New Brunswick (Minister of Health and Community Services v G.(J.), [1999] 3 S.C.R. 46 at para. 59 (G.J.); J. Auth., Vol. 1, Tab 3, Blencoe at para. 57 585 See paras. 44-48 of this factum 102 from women into ‘disposable people’”586 and propagating the belief that prostitutes are responsible for their own victimization.587

241. There is no evidence anywhere in the record establishing that, to the extent that prostitutes are the victims of social stigma, it is because Parliament has criminalized certain prostitution-related activities. The Applicants’ own experts acknowledged that stigmatization of prostitution has a very long history in Western society. They also acknowledged it would not

588 disappear if the laws were struck down. According to the Applicants’ own witness,

“stigmatization in prostitution still exists in New Zealand despite legalization”.589

242. Furthermore, to the extent that prostitutes suffer from stigma at the hands of non-governmental actors, such harms cannot be attributed to the state and it would be

“inappropriate to hold government accountable for” such harms.590

243. To the extent that prostitutes suffer harm that arises from the effects of the ordinary application of the Criminal Code, the same can be said for others who engage in conduct contrary to the law. This does not rise to the level of state interference with bodily integrity or serious state-imposed psychological stress necessary to ground a s. 7 claim. As the Supreme Court stated in G.J., “the right to security of the person does not protect the individual from the ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action.”591

586 Applicants’ Factum at para. 133 587 J.A.R., Vol. 15, p. 4,149-64, Lowman Affidavit, paras. 8 and 35 588 J.A.R., Vol. 21, Tab 53, p. 6236, Lowman Transcript, Vol. 2, Q. 1133; J.A.R., Vol. 25, Tab 56, p. 7256- 77, Shaver Transcript, Q. 224; J.A.R., Vol. 14, Tab 49, p. 3942, Benoit Transcript, Q. 79 See also J.A.R., Vol. 49, Tab 113, pp. 14260-61, Farley Affidavit, paras. 112-116. 589 Applicants’ Factum at para. 110; J.A.R., Vol. 26, Tab 59, p. 7470, ll. 1-7, Casey Transcript, Qs.153-155. 590 J. Auth., Vol. 1, Tab 3, Blencoe at para. 59. See also para. 65 where the Court held that Mr. Blencoe’s psychological well-being was not caused by the human rights complaints process but rather by his removal from cabinet and caucus by the premier, the intense media scrutiny arising from this removal and the sexual harassment complaints, and a soccer association’s decision not to permit him to continue coaching his son’s soccer team. These were the result of actions by non-governmental actors, not attributable to the state. 591 J. Auth., Vol. 2, Tab 25, G.(J.) at para. 59 103

244. In addition, the criminal prohibitions relating to prostitution do not constitute a state-imposed barrier to access to something that would alleviate serious physical or psychological suffering. Rather, they constitute a form of regulation of the circumstances in which an often dangerous and harmful activity takes place. They do not preclude access to some kind of “safe” haven for prostitution, as there is no such thing.

245. Finally, the Applicants’ submission at para. 432 of their factum regarding the use of reasonable hypotheticals is supported by none of the cases they cite. They claim that their onus of proving that the law causes a deprivation of the right to security of the person can be discharged by constructing hypothetical situations, as an alternative to actual evidence given by sworn affiants. This attempt to escape their onus of proof is completely unsupported by the jurisprudence.

246. In none of those cases was it in dispute that the negative consequences were state-imposed or that they were sufficiently serious to warrant constitutional protection592 – precisely the issues that the Applicants are attempting to avoid having to prove. The

“reasonable hypotheticals” were used in those cases only to assess whether those state- imposed, sufficiently serious negative consequences were proportional.

247. Furthermore, the “hypotheticals” used in the proportionality analysis in those cases were hypothetical only in the sense that the situations were not the one arising from the case that was directly before the Court. There was no doubt in those cases that those situations actually occurred in reality. In Morrissey, the Court used “situations that commonly

592 J. Auth., Vol. 3, Tab 59, R. v. Goltz, [1991] 3 S.C.R. 485 (Goltz), J. Auth., Vol. 5, Tab 111, Smith, infra, and J. Auth., Vol. 5, Tab 87,Morrisey, infra, dealt with mandatory minimum sentences, which obviously engaged the offenders’ liberty interest and were state-imposed. In J. Auth., Vol. 4, Tab 60, R. v. Heywood, [1994], 3 S.C.R. 761 at p. 789 (Heywood), the deprivation of the right to liberty was conceded because the provision prohibited all convicted sex offenders from attending playgrounds and public parks for the rest of their lives. J. Auth., Vol. 4, Tab 84, In Mills, the accused’s liberty interest was engaged because of the possibility of imprisonment: para. 62. 104

593 arise and which can be gleaned from the reported cases”. In Smith, the Court referred to a situation that no one could deny actually happens in real life to show that “it is inevitable that, in some cases, a verdict of guilt will lead to the imposition of a term of imprisonment which will be grossly disproportionate.” It was “the certainty, not just the potential” of gross disproportionality that offended the right not to be subjected to cruel and unusual punishment.594

248. For these reasons, Canada submits that the Applicants have not proven that the provisions engage their right to security of the person.

249. Nevertheless, because the possibility of imprisonment engages the Applicants’ right to liberty in relation to all three provisions, it is necessary to consider the second part of the s. 7 test, which requires the Applicants to establish that the law is not in accordance with the principles of fundamental justice.

3) The challenged provisions are in accordance with the principles of fundamental justice

250. Canada submits that the provisions are in accordance with all of the principles of fundamental justice identified by the Applicants, who ultimately rely upon the premise that there is a constitutionally protected right to engage in prostitution. There is no such right.

Parliament’s decision to criminalize only certain aspects of prostitution was affirmed by the

593 J. Auth., Vol. 5, Tab 87, R. v. Morrisey, [2000] 2 S.C.R. 90 at para. 51(Morrisey) [emphasis added]. 594 J. Auth., Vol. 5, Tab 111, R. v. Smith, [1987] 1 S.C.R. 1045 at paras. 66-67(Smith) [emphasis added]. Lamer J.’s hypothetical situation was a young person returning from a vacation in the U.S. with a single joint. No one could deny that this actually happens in real life. That young person would be subject to a mandatory seven-year sentence, which would constitute cruel and unusual punishment. The offender in Goltz was unable to construct an acceptable hypothetical: at J. Auth., Vol. 3, Tab 59, Goltz at pp.517-520; J. Auth., Vol. 4, Tab 60, In. Heywood at 799, the hypothetical was “a man convicted at age 18 of sexual assault of an adult woman who was known to him in a situation aggravated by his consumption of alcohol”. That man would, at the age of 65, “still be banned from attending, for all but the shortest length of time, a public park anywhere in Canada”. Again, no one could deny that this actually happens in real life. In Mills, the Court did not posit any particular hypothetical. The issues in that case were quite different: Mills dealt with provisions relating to criminal procedure, not the scope of offences or even sentences. 105

Supreme Court in 1990 as being in accordance with the principles of fundamental justice, and there is no basis in law or on the evidence to revisit that decision.

251. The Applicants allege that the challenged provisions are not in accordance with several principles of fundamental justice: the rule of law; arbitrariness; overbreadth and gross disproportionality. Each is addressed in turn below.

a) The provisions do not offend the rule of law

252. The Applicants submit that “[i]t runs contrary to the rule of law for the state to authorize a legal activity (i.e., selling sex) while concurrently closing down any legal options for

595 the effective and safe pursuit of the activity.” For this argument, they rely exclusively on the

Court of Appeal’s decision in Hitzig v. Canada, which relates to marihuana for medical purposes.596

253. The Applicants’ argument must fail as Hitzig is entirely distinguishable. It also has not been followed in cases beyond the context of marihuana for medical purposes.

Furthermore, Parliament has not authorized the selling of sex – and its decision to address prostitution indirectly was upheld by the Supreme Court and found to be in accordance with the principles of fundamental justice.

i) Hitzig is distinguishable

254. Hitzig is of no assistance to the Applicants. In Hitzig, the Court of Appeal’s finding that the state was obliged to provide a regime permitting a legal source of marihuana for those requiring it for medical purposes, without their having to resort to the black market to obtain it, flowed from the finding that s. 7 protects the rights of those with a medical need to

595 Applicants’ Factum at para. 462 596 J. Auth., Vol. 2, Tab 19, Hitzig v. Canada (2003), 231 D.L.R. (4th) 104, leave to appeal (by Hitzig) to S.C.C. refused, [2004] 1 S.C.R. x (Hitzig) 106

597 have access to the drug. For it to be analogous, the Applicants in this case would have to show that they have a constitutional right to engage in prostitution. They have not alleged such

598 a right, and such an allegation could not possibly be sustained. The state does not have an obligation to create a regime allowing the Applicants to engage in prostitution with fewer hindrances. Parliament remains free to prohibit activities associated with prostitution even if it becomes more difficult for the Applicants to engage in it. Without first establishing that there is a free-standing constitutional right to engage in prostitution, which the Applicants do not and cannot claim, their argument based on Hitzig must fail.

255. Furthermore, the Applicants overstate the content of the principle of the rule of law. The rule of law does not address the substantive content of legislation, but rather the need that the relationship between the state and the individual be governed and regulated by law. For this reason, the Supreme Court concluded in Imperial Tobacco, decided two years after Hitzig, that “it is difficult to conceive of how the rule of law could be used as a basis for

599 invalidating legislation”. In Imperial Tobacco and two subsequent cases, the Court rejected

600 challenges to the validity of legislation made on the basis of the rule of law.

ii) This aspect of Hitzig has not been followed beyond the context of marihuana for medical purposes 256. The Supreme Court dismissed Mr. Hitzig’s application for leave to appeal from

601 the Court of Appeal. It did not refer to Hitzig in any of the three subsequent cases – Imperial

Tobacco, Charkaoui and Christie – in which challenges were made to the validity of legislation

597 J. Auth., Vol. 5, Tab 94, R. v. Parker (2000), 49 O.R. (3d) 481 at paras. 97 and 111; J. Auth., Vol. 2, Tab 19, Hitzig at paras. 80 and 83 598 J. Auth., Vol. 3, Tab 54, R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 at p.786; J. Auth., Vol. 6, Tab 125, Prostitution Reference at 1179 (per Lamer J.); J. Auth., Vol. 1, Tab 10, Chaoulli at para. 202 (per Binnie and Lebel JJ.) 599 J. Auth., Vol. 1, Tab 5, British Columbia v. Imperial Tobacco, [2005] 2 S.C.R. 473 at paras. 58-59 600 J. Auth., Vol. 1, Tab 11, Charkaoui v. Canada, [2007], 1 S.C.R. 350 at paras. 133-37; J. Auth., Vol. 2, Tab 13, Christie v. British Columbia (Attorney General), [2007] 1 S.C.R. 873 at paras.18-27 601 J. Auth., Vol. 2, Tab 19, Hitzig, supra 107

on the basis of the rule of law. Indeed, the Supreme Court has never cited Hitzig and other courts have followed this aspect of Hitzig only in marihuana cases.

iii) Parliament has not “authorized” the selling of sex

257. Parliament has chosen to address prostitution indirectly. Its decision not to criminalize the actual sale of sex cannot be interpreted as a positive act of authorizing this activity. On the contrary, Lamer J. in the Prostitution Reference held that the laws taken as a whole “are indeed aiming at eradicating the practice” of prostitution.602

iv) Addressing prostitution indirectly is in accordance with principles of fundamental justice 258. Parliament’s decision to address prostitution indirectly rather than directly was upheld by the Supreme Court in the Prostitution Reference. Dickson C.J. held that it was in accordance with the principles of fundamental justice that the bawdy-house offences effectively prohibit the sale of sex in private settings while the “communication” offence makes it impossible to negotiate in public for the sale of sex.603

While I recognize that Parliament has chosen a circuitous path, I find it difficult to say that Parliament cannot take this route. The issue is not whether the legislative scheme is frustrating or unwise but whether the scheme offends the basic tenets of our legal system. The fact that the sale of sex for money is not a criminal act under Canadian law does not mean that Parliament must refrain from using the criminal law to express society's disapprobation of street solicitation.

259. There are no grounds for revisiting this decision.

260. The purpose of the decision to address prostitution indirectly was to eliminate the harms that prostitution causes. Dubin C.J., writing for the Court of Appeal in R. v. Mara, explained: 604

602 J. Auth., Vol. 6, Tab 125, Prostitution Reference at p. 1191. See also para. 218 of this factum 603 Ibid.(Prostitution Reference) at p. 1142 [emphasis added] 604 J. Auth., Vol. 4, Tab 80, Mara at p.651 (C.A.). On appeal, the Supreme Court upheld much of the Court of Appeal’s decision although it reversed it in respect of one conviction on the grounds of mens rea. Dubin C.J.’s statement was not commented upon by the Supreme Court: J. Auth., Vol. 4, Tab 81, [1997] 2 S.C.R. 630 108

Although prostitution itself is not a crime in Canada, Parliament has chosen to attack prostitution indirectly by criminalizing prostitution-related activities. The purpose of doing so is to eliminate the harms that prostitution causes. 261. Parliament has taken the same approach with suicide and tobacco, and criminal laws relating to both have been upheld by the Supreme Court. In Rodriguez, the constitutionality of the prohibition against assisted suicide was upheld despite the fact that

605 suicide itself is not illegal in this country. Similarly, in RJR-MacDonald, La Forest J., explicitly relied on the reasoning from the Prostitution Reference and Rodriguez, and rejected the argument that “Parliament cannot criminalize an activity ancillary to an ‘evil’ (the advertisement and promotion of tobacco), when the underlying activity the legislation is

606 designed to combat (the manufacture, sale and consumption of tobacco) is itself legal”.

b) The provisions are not arbitrary or irrational

262. The challenged provisions do not offend the principle that laws must not be arbitrary or irrational. First, there is a legitimate state interest underpinning each of them.

Second, the Applicants have not established that the provisions bear no relation to, or are inconsistent with, their objectives. In fact, their acknowledgement in their factum that “the provisions do bear ‘some relation to the objective that lies behind [it]’” is sufficient to defeat this ground of attack.607

263. The harms targeted by the challenged offences constitute a legitimate state interest in criminalizing the most harmful and public emanations of prostitution. The issue is whether there is a “reasoned apprehension of harm” beyond the de minimis range.608

264. The Court of Appeal recently affirmed, relying upon Supreme Court jurisprudence, that the standard of “reasoned apprehension of harm” is appropriate, and

605 J. Auth., Vol. 6, Tab 129, Rodriguez v. British Columbia, [1993] 3 S.C.R. 519 (Rodriguez) 606 J. Auth., Vol. 6, Tab 128, RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 783 (RJR- MacDonald) at paras. 49-51. La Forest J. was writing for the majority on this point (division of powers) but dissented in the result because of his position on the Charter issue. 607 Applicants’ Factum at para. 467 [emphasis added]. 109 considerable deference is owed to Parliament where the social science evidence is

609 “inconclusive”. In such cases, it is appropriate for a court to decline to make factual findings on disputed scientific evidence, once satisfied there is sufficient evidence to give rise to a

610 ”reasoned apprehension of harm”. As Sharpe J.A. explained for the unanimous panel in

Cochrane: 611

The application judge applied the well-established Charter principle that where the risk of harm or the efficaciousness of Parliament’s remedy is difficult or impossible to measure scientifically it is for the legislature, not the courts, to decide upon the appropriate course of action, provided there is evidence of a “reasoned apprehension of harm”. It was not the role of the application judge to make detailed factual findings as that would lead to “micromanagement of Parliament’s agenda”. Her task was rather to apply the “relevant constitutional control”; namely, “the general principle that the parliamentary response must not be grossly disproportionate to the state interest sought to be protected”: see Malmo-Levine, at para. 133. 265. In this case, there is a voluminous body of disputed social science evidence before this Court, almost all of which goes to the heart of the issues before it. It is widely acknowledged that little is known about “off-street prostitution”, and the experts themselves do not even agree on how to define it. There is fundamental disagreement among the experts about whether, and in what circumstances, prostitution can be carried out more “safely” and about the role of the challenged provisions as a causal factor in respect of preventing or causing harm. The Applicants acknowledge they raise questions that “have eluded

612 researchers for decades”. This is clearly a case where considerable deference is owed to

Parliament’s legislative choices.

608 J. Auth., Vol. 4, Tab 78, Malmo-Levine at paras. 133-34 609 J. Auth., Vol. 2, Tab 14, Cochrane v. Ontario (2008), O.R. (3d) 321 at paras. 27-28 (Cochrane) 610 Ibid. at para. 29. 611 Ibid. at para. 26. See also J. Auth., Vol. 3, Tab 46, R. v. Clay, [2003] 3 S.C.R. 735 at para. 39, where the Supreme Court stated that even findings that “are moderate and measured, and emphasize that ‘the jury is still out’ in some respects” can be sufficient to constitute a state interest which Parliament is entitled to protect. 612 Applicants’ Factum at para. 123 110

266. The state interest in protecting against harms is legitimate where the harm is beyond the de minimis range or is not insignificant or trivial. Clearly, the onus on the

613 Applicants is high. As the Supreme Court stated in Malmo-Levine:

Once it is demonstrated, as it has been here, that the harm is not de minimis, or in the words of Braidwood J.A., the harm is “not [in]significant or trivial”, the precise weighing and calculation of the nature and extent of the harm is Parliament’s job. Members of Parliament are elected to make these sorts of decisions, and have access to a broader range of information, more points of view, and a more flexible investigative process than courts do. A “serious and substantial” standard of review would involve the courts in micromanagement of Parliament’s agenda. The relevant constitutional control is not micromanagement but the general principle that the parliamentary response must not be grossly disproportionate to the state interest sought to be protected, as will be discussed. 267. Despite this caution, the Applicants would urge this Court to step into

Parliament’s shoes, effectively reverse the onus of proof, disregard the contested social science evidence and decide complex social questions relying upon “anecdotal evidence,

614 government reports and studies and common sense”. The Applicants’ evidence, however, does not provide any scientific basis for drawing the causal link they allege nor even a sufficient basis for drawing such a link by applying logic and common sense to what is known.

268. The Supreme Court in Malmo-Levine also held that the principles of fundamental justice do not include the so-called “harm” principle, namely, that the law should only prohibit conduct that harms persons other than the accused. Rather, the criminal law may be used to protect legitimate state interests other than the avoidance of harm to others.615

269. In addition to the avoidance of harm to others, the criminal law may also legitimately address conduct that “affects the public”, or that constitutes “a wrong against the

616 public welfare”, or is “injurious to the public”, or that “affects the community”. The law may

613 J. Auth., Vol. 4, Tab 78, Malmo-Levine at para. 133 614 Applicants’ Factum at para. 123 615 J. Auth., Vol. 4, Tab 78, Malmo-Levine at paras. 102-29 616 Ibid. at para. 115 111

617 also legitimately criminalize conduct “that causes harm only to the accused”. The Applicants may consider this “paternalistic”, but the Supreme Court has confirmed that this objection

“does not go to the validity of prohibiting the underlying conduct”.618

270. There is a “reasoned apprehension of harm” beyond the de minimis range arising from the most harmful and public emanations of prostitution targeted by the challenged provisions, such that the state has a legitimate interest to criminalize the conduct. The living on the avails offence targets the pimp who "lives parasitically off a prostitute's earnings" and

"personifies abusive and exploitative malevolence". Its purpose is "to deal with a cruel and

619 pervasive social evil". The offences relating to bawdy houses in s. 210 work in conjunction with several of the procuring offences in s. 212 to control the “institutionalization and commercialization of prostitution”, and the harm experienced by vulnerable persons involved in prostitution that takes place out of the public view. The "communication" offence is aimed at preventing the harms arising from street prostitution, including street and social nuisance. In the Prostitution Reference, the Supreme Court unanimously found that the objectives of para.

213(1)(c) were sufficiently pressing and substantial to justify limiting Charter rights.

271. The test for arbitrariness or irrationality is set out in Rodriguez and the onus on the Applicants is high. A breach of fundamental justice on these grounds can only be found if the deprivation “does little or nothing to enhance the state's interest,” has “no relevance to the state objective”, or “bears no relation to, or is inconsistent with, the objective that lies behind the legislation".620

617 Ibid. at para. 115. See also para. 124 618 Ibid. at para. 124 619 J. Auth., Vol. 3, Tab 51, Downey at p. 36 620 J. Auth., Vol. 6, Tab 129, Rodriguez at pp.594-95 (per Sopinka J.); agreed to by McLachlin J. (dissenting) at pp.619-20 112

272. The Applicants quote a lengthy passage from the judgment of McLachlin C.J.

621 and Major J. in Chaoulli, who were not writing for a majority on the Canadian Charter issue.

Binnie and Lebel JJ. wrote a competing judgment, concurred in by an equal number of justices, in which they disagreed with McLachlin C.J. and Major J. to the extent that they expanded “arbitrary” to mean “unnecessary” – a “much broader term that involves a policy

622 choice”. Instead, for a law to be “inconsistent” it has to “logically contradict its objectives”.

The Court of Appeal earlier this year wrestled with these competing reasons from Chaoulli and reaffirmed the “bear no relation to, or be inconsistent with” standard.623

273. It cannot be said that the criminal prohibition against communication in public places for the purpose of prostitution bears no relation to, or is inconsistent with, the reduction of harms associated with street prostitution. On the contrary, the provision is rationally connected to its purpose, as the Supreme Court unanimously held in the Prostitution

Reference.624

274. The alleged ineffectiveness of a criminal prohibition is of little or no relevance to its validity under s. 7. Communication for the purpose of prostitution in public places continues to occur because not everyone complies with the law. The same is true of every other criminal offence: the prohibition against murder is not arbitrary or irrational because people continue to kill other people. As the Supreme Court said in Malmo-Levine, “refusal to comply with the law

621 J. Auth., Vol. 1, Tab 10, Chaoulli, supra was decided by a deeply divided, seven-judge panel of the Supreme Court, on the basis of a violation of the Quebec Charter of Human Rights and Freedoms only, and not of the Canadian Charter. There was no majority judgment on the Canadian Charter issue because the Court was split three to three on that point. The remaining judge, Deschamps J., found it unnecessary to consider the arguments based on Canadian Charter because the Quebec Charter had been violated (para. 15). 622 Ibid. at paras. 234; J. Auth., Vol. 1, Tab 1, In A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 at para. 140 (A.C.), when McLachlin C.J. cited her own judgments from J. Auth., Vol. 6, Tab 129, Rodriguez and J. Auth. Vol. 1, Tab 10, Chaoulli, she confirmed that the test for arbitrariness was “bearing no relation to the goal” and made no mention of the standard of necessity. 623 J. Auth., Vol. 1, Tab 2, Abarquez v. Ontario (2009), 95 O.R. (3d) 414 at paras. 48-49 624 J. Auth., Vol. 6, Tab 125, Prostitution Reference at p.1135 (per Dickson C.J.), pp.1195-96 (per Lamer J.) and p.1212 (per Wilson J.) 113 cannot be elevated to a constitutional argument against validity based on the invocation of fundamental principles of justice”.625

275. Furthermore, the evidence in this case shows that para. 213(1)(c) is an effective tool regularly used by police forces across the country to address the problem of solicitation in

626 public places. Affiants representing three residents’ associations in Toronto, Ottawa and

Vancouver testified that police sweeps successfully reduce the presence of solicitation in

627 public places. According to the Applicants’ own evidence, while the statistics on the impact of the 1985 amendment on the number of street prostitutes in Vancouver were not indicative of a trend, as of 1989, it was the impression of interview subjects at that time that the passage of the 1985 communication law did have some deterrent effect upon johns and on some prostitutes.628

276. Moreover, it is legitimate for Parliament to continue to consider whether there are more effective ways to address social issues flowing from prostitution. The legislative history demonstrates that successive parliaments have studied and debated the issue of

629 solicitation in public places. The current para. 213(1)(c), enacted in 1985, was inspired by the recommendations of a parliamentary committee in 1982-83. It was reviewed in 1989-90 by a subsequent parliamentary committee, which recommended no changes to the scope of the offence. No one on the most recent parliamentary committee recommended its repeal or put forth an alternative to replace it. If a more effective way to address this complex policy issue is to be found, that is a task best left to Parliament.

625 J. Auth., Vol. 4, Tab 78, Malmo-Levine, at para. 178 626 See this factum at para. 77 627 J.A.R., Vol. 39, Tab 99, pp. 11207, 11208, 11213, Parrott Affidavit, paras. 59, 60, 71; J.A.R., Vol. 39, Tab 100, p. 11336, Affidavit of Donna Cowan, para. 16; J.A.R., Vol. 39, Tab 101, p. 11368, Aubin Affidavit, para. 11 628 J.A.R., Vol. 17, Tab 51G, p. 4721, Lowman Affidavit, Exhibit “G”; J.A.R., Vol. 22, Tab 53, pp. 6483-84, Lowman Transcripts, Qs.1832-33 629 See Annex Two 114

277. Furthermore, the Applicants complain that the “interplay” of sections 210,

212(1)(j) and 213(1)(c) is incoherent and arbitrary, because prostitutes cannot move out of

630 public view “in a legal manner”. However, the aim of taking solicitation “off the streets and out of public view” does not imply an intention to authorize it in an off-street, private setting.

The Applicants’ interpretation of Dickson C.J.’s phrase would render it incoherent, since he

631 was aware that bawdy-houses were illegal when he wrote it.

278. Parliament has a legitimate state interest in discouraging prostitution through a variety of criminal prohibitions due to the harms it causes. Furthermore, the challenged provisions are not arbitrary or irrational.

c) The provisions are not overbroad or grossly disproportionate

279. The provisions are neither overbroad nor grossly disproportionate to their objectives. The Applicants’ arguments under these two headings compare the objectives of the offences (1) with their scope and (2) with their effects on persons caught by them. To succeed, the Applicants must show that the scope or the effects are grossly disproportionate to the objectives. The Applicants’ arguments fail on both of these related principles.

i) Standard is that of gross disproportionality 280. The Supreme Court in Malmo-Levine and Clay, released concurrently, affirmed that the standard of gross disproportionality applies to the assessment of both the arguments relating to the scope of the offences632 and the ones relating to the effects of the offences.633

281. The constitutional standard of gross disproportionality refers to “what Canadians would find … abhorrent or intolerable”.634

630 Applicants’ Factum at para. 468 631 J. Auth., Vol. 6, Tab 125, Prostitution Reference at p.1142 632 J. Auth., Vol. 3, Tab 46, Clay at paras. 34 and 39 633 J. Auth., Vol. 4, Tab 78, Malmo-Levine at paras. 143 and 169 634 Ibid. at para. 159, quoting J. Auth., Vol. 5, Tab 87, Morrisey at para. 26 115

282. Two recent decisions of the Court of Appeal applied the standard of gross disproportionality to arguments relating to the scope of offences. The Applicants ask this Court not to follow them in part on the basis that this “analysis may not be applicable in the criminal

635 context”. Yet both cases dealt with legislation that deprived persons of the right to liberty

636 because of the threat of imprisonment, as in this case. Even more importantly, the Court of

Appeal in both cases637 was simply applying the Supreme Court’s binding decision in Clay, which the Applicants do not cite or mention. Far from being anomalies that “should be restricted to their facts”, they are applicable, binding and based on solid appellate authority; they should be followed in the case at bar.638

ii) Scope of the offences not overbroad or grossly disproportionate 283. The scope of the offences is not overbroad or grossly disproportionate to the legitimate state interests identified above and the objectives they underpin.

284. The applicable standard of gross disproportionality makes clear the appropriate degree of deference that is owed to the measures chosen by Parliament to address legitimate state interests. This standard recognizes the difficulty and in some cases the impossibility of crafting measures that perfectly align with the harms they are intended to address. Thus, “[i]f the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement”.639

635 Applicants’ Factum at para. 473 636 J. Auth., Vol. 3, Tab 52, R. v. Dyck (2008), 90 O.R. (3d) 409 at para. 89 (Dyck); J. Auth., Vol. 2, Tab 14, Cochrane at para. 19 637 Ibid. (Dyck) at para. 94; Ibid. (Cochrane) at paras. 31-32 638 J. Auth., Vol. 3, Tab 49, The Applicants also cite R. v. Demers, [2004] 2 S.C.R. 489 (Demers). The provisions of the Criminal Code being challenged in Demers authorized the detention of accused persons found unfit to stand trial on account of mental disorder. Because those provisions did not create offences, the Court’s comments on overbreadth do not assist with the analysis in this case relating to the scope of offences. 639 J. Auth., Vol. 6, Tab 128, RJR-MacDonald at para. 160. McLachlin J. (as she then was) made this point in the minimal impairment part of her section 1 analysis. The Court has noted, see e.g. J. Auth., Vol. 3, Tab 49, Demers at para. 46, that the minimal impairment part of the section 1 analysis is closely related to the overbreadth analysis under section 7, and so similar considerations apply. 116

285. Deference is especially appropriate in cases such as this one, where Parliament is tackling a complex social problem, and there is no consensus on which of the array of alternative solutions might be most effective. As the Supreme Court noted in JTI-

Macdonald:640

It may, in the calm of the courtroom, be possible to imagine a solution that impairs the right at stake less than the solution Parliament has adopted. But one must also ask whether the alternative would be reasonably effective when weighed against the means chosen by Parliament. To complicate matters, a particular legislative regime may have a number of goals, and impairing a right minimally in the furtherance of one particular goal may inhibit achieving another goal. 286. A criminal prohibition is not overbroad simply because its ambit includes not only those situations that are in exact concordance with the evil it is meant to address, but also other similar and difficult-to-distinguish situations. This was the situation in Clay, where the

Supreme Court found the complete prohibition against marihuana possession not to be overbroad even though only one in twenty users of that drug fit the exact profile of the harm

641 that the state had a legitimate interest in targeting. Similarly, the Court of Appeal did not require perfect alignment in Cochrane: “Legislatures frequently enact blanket prohibitions on things or activities that may be used or conducted safely because of the risk that severe harm can result from misuse or misconduct. The prohibition and regulation of certain firearms provides an example.”642

287. With regard to the living on the avails offence, the scope of para. 212(1)(j), properly interpreted as applicable only to those who live parasitically on a prostitute’s earnings, is clearly proportionate to the legitimate state interest of protecting against exploitation.643

644 288. With regard to bawdy-houses, the risk of serious harm is always present. The idealized situation, posited by the Applicants, in which a prostitute can “take measures to

640 J. Auth., Vol. 1, Tab 9 Canada v. JTI-Macdonald Corp., [2007] 2 S.C.R. 610 at para. 43 (JTI – MacDonald) 641 J. Auth., Vol. 3, Tab 46, Clay at paras. 27 and 40 642 J. Auth., Vol. 2, Tab 14, Cochrane at para. 34 117

645 increase her safety and security” has little application in the real world. It is noteworthy that even the Applicants do not claim that such measures can eliminate risks but could only change the level of risk. They acknowledge that there is inherent risk in all forms of prostitution,

646 wherever it takes place.

289. Even if this Court finds that steps can be taken to mitigate the harmful effects of prostitution, it is still open to Parliament, as in the case of marihuana,647 to proceed on the more reasonable basis that public safety is best served by criminalizing all bawdy-houses, rather than facilitating opportunities to carry out prostitution in a manner considered by the

Applicants to be “more” safe.

290. Apart from the overwhelming evidence as to the inherent risk involved in all forms of prostitution, regardless of where they take place, the international experience with decriminalization in such places as the Netherlands, Nevada, certain Australian states and

New Zealand demonstrate that, while precautions may theoretically be taken, substantial risks continue to be present in many brothels.

291. Finally, even if this Court accepts that the law could somehow be made to permit non-exploitative, significantly safer bawdy-houses, this would still not address community harms that might nevertheless arise from the operation of such places. These harms include the exposure of children and other vulnerable persons to the activity, harassment of innocent passers-by, and crimes associated with prostitution such as assaults and drugs.

292. With regard to the communication provision in s. 213, the Supreme Court in the

Prostitution Reference held that the scope of the offence was not “unduly intrusive”. It was not

643 See paras. 190-201 and paras. 222-3 of this factum 644 J.A.R., Vol. 47, Tab 111D, pp. 13851, 13834, 13849, 13843 & 13847, Dr. van de Pol Suppl. Affidavit, Exhibit “D”, Beneath the Surface (2008), p. 21, p. 4, p. 13 & p. 17(Harms flowing from prostitution) 645 Applicants’ Factum at para. 477 646 Applicants’ Factum at para. 420; J.A.R., Vol. 4, Tab 20, p. 876,Babcock Transcript, Q. 411, p. 88, line 20 647 J. Auth., Vol. 4, Tab 78, Malmo-Levine at para. 100 118

648 too vague and it passed the minimal impairment test. There are no grounds for revisiting this decision.

293. In upholding the constitutional validity of s. 213, the Court recognized the difficulty of crafting a legislative solution to deal with harms that often materialized with the congregation of prostitutes and johns in the streets, when Parliament could only act by focusing on individual transactions. By criminalizing communication for the purpose of prostitution in public places,

Parliament was aiming to reduce the cumulative impact of these individual instances.649

294. Furthermore, the Court recognized the limiting effect of its decision in

Westendorp, which held that a municipal by-law aimed at street solicitation was ultra vires and

650 that only Parliament could attack prostitution through criminal measures. This decision had the effect of limiting the legislative options open to government to address the problem.

295. In addition, the Court noted that Parliament was presented with “a spectrum of views and possible approaches” when it made the choice to enact the current s. 213 in 1985.

The Court referred to the existing “solicitation” offence from 1972 that was judged to be ineffective, as well as the proposals from the parliamentary studies on prostitution and those in

651 652 the Fraser Report. Dickson C.J. concluded that:

The legislative scheme that was eventually implemented and has now been challenged need not be the "perfect" scheme that could be imagined by this Court or any other court. Rather, it is sufficient if it is appropriately and carefully tailored in the context of the infringed right. I find that this legislation meets the test of minimum impairment of the right in question.

648 J. Auth., Vol. 6, Tab 125, Prostitution Reference at pp.1135-38 (per Dickson C.J.) and pp.1196-99 (per Lamer J.) 649 Ibid. at 1136 (per Dickson C.J.) and 1196 (per Lamer J.). See also J.A.R., Vol. 73, Tab 155L, p. 21791- 92, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 30 (3 December 1985) 650 Ibid. (Prostitution Reference) at p.1139 (per Dickson C.J.) and p.1197 (per Lamer J.) 651 Ibid. at pp.1137-38 (per Dickson C.J.) and pp.1196-97 (per Lamer J.) 652 Ibid. at p. 1138 (per Dickson C.J.) 119

296. Finally, with regard to the Applicants’ reliance on the British Columbia Supreme

Court’s decision in PHS Community Services Society,653 Canada respectfully submits that that lower court decision is wrong in law and should not be followed. The British Columbia Court of

Appeal heard Canada’s appeal in April and reserved its judgment. Alternatively, and in any event, that case is clearly distinguishable. The trial judge characterized the issues in that case as concerning “the health care of addicts”654 and analogized the situation of those addicted to illicit drugs requiring access to an injection site where risks of morbidity and infection were significantly reduced (i.e. medical treatment for their addiction) to the situation of the accused

655 in R. v. Parker for whom marihuana was a medical necessity. As with Hitzig, those cases arise from far different situations than the one here.

297. For all of these reasons, Parliament’s apprehension of harm is reasonable, and the scope of the offences is not overbroad or grossly disproportional.

iii) Effects of the offences not overbroad or grossly disproportionate 298. The effects of the offences are not overbroad or grossly disproportionate to the legitimate state interests.

299. The issue is not whether a particular legislative measure strikes the right

656 balance between individual and societal interests in general. This is not an exercise of

657 balancing the law’s salutary and deleterious effects generally. To the extent that such a balancing is appropriate, that is to be done under s. 1.658

300. The Applicants do not claim that effects relating to the liberty interest are grossly disproportionate. These are the effects that arise from the possibility of imprisonment, which

653 Applicants’ Factum at paras. 475-76 654 J. Auth., Vol. 2, Tab 26, PHS Community Services Society (1998), 293 D.L.R. (4th) 392 at paras. 136-37 655 Ibid. at paras. 133-35 656 J. Auth., Vol. 4, Tab 78, Malmo-Levine at para. 96 657 Ibid. at paras. 179-82 658 Ibid. at paras. 96-98 120

Canada agrees is present for all three offences. Because of the absence of mandatory minimum sentences, a sentencing court will always have the full discretion to impose the proportionate sentence in each case, including options that do not involve imprisonment.659

301. Furthermore, while there are many variations in models for addressing prostitution, other free and democratic societies, like Canada, use criminal prohibitions as a primary means by which to address prostitution-related risks and harms. Annex Seven provides a summary of prostitution-related criminal offences in two representative American states, the United Kingdom and Ireland.

302. The Applicants claim that effects relating to the security of the person are grossly disproportionate. However, as explained at paragraphs 229-249 above, the effects identified by the Applicants are not caused by the law. Only effects that are “the product of” the law are relevant to this analysis.660

303. With specific regard to the Applicants’ argument relating to the “living on the avails” offence,661 it must be noted that the passage they quote is from the dissenting opinion of McLachlin J. in Downey. The majority upheld the constitutional validity of the evidentiary presumption in ss. 212(3) (not challenged in this case) as justified under s. 1. Cory J. for the majority specifically disagreed with McLachlin J.’s concern that the evidentiary presumption would lead to a situation in which prostitutes would be unable to live with partners and associates with whom they are in a non-parasitic relationship.662

304. In the alternative, if this Court finds that the criminal offences contribute to the negative effects identified by the Applicants and that this contribution is sufficient to engage the security of the person interest, the relevant factor for comparison with the state interest is limited to the extent to which the offences actually contribute to the increase in the negative

659 Ibid. at para. 164; see generally discussion at paras. 152-68 660 J. Auth., Vol. 4, Tab 78, Malmo-Levine at para. 144 661 Applicants’ Factum at para. 482 121

effects, and not the entirety of the negative effects. The Applicants claim only that the law is one of many causes contributing to risk of harm, including pre-existing vulnerabilities such as age of entry, history of abuse and lack of education, as well as social stigma not related to the

663 law and the risk of violence inherent in all prostitution. They do not claim that, without the law, the risk of harm from prostitution would be completely eliminated. The law’s contribution to the risk of harm, if any, is minimal. Furthermore, any such minimal contribution is not grossly disproportionate to the harms that the laws are intended to address, namely, the harmful, dangerous and public emanations of the practice of prostitution in all its forms.

305. For all of these reasons, the effects of the offences are not overbroad or grossly disproportional.

306. In conclusion, the deprivation of the right to liberty is in accordance with the principles of fundamental justice.

H. IN THE EVENT THAT A SECTION 7 INFRINGEMENT IS FOUND, THE PROVISIONS ARE DEMONSTRABLY JUSTIFIED UNDER S. 1

307. Canada agrees with the Applicants that only on rare occasions could a violation of section 7 be justified under section 1, and that such an extraordinary situation is not present in this case. The following argument is advanced to address the possibility that this Court may nevertheless determine that it is more appropriate to address some of the considerations under section 1 rather than section 7.

308. The Oakes test requires consideration of four issues:664

(a) whether the law serves an important purpose;

(b) whether the law is rationally connected to the objective;

662 J. Auth., Vol. 3, Tab 51, Downey at pp.36-37 and pp.38-39 (per Cory J.) 663 Applicants’ Factum at paras. 74, 169, 173, 198 and 217 664 J. Auth., Vol. 1, Tab 9, JTI-Macdonald at para. 36 122

(d) whether there is proportionality between the effects of the law and the objective.

309. The legislative objectives of the challenged provisions are sufficiently important and include the prevention of the most harmful and public emanations of prostitution. The

Supreme Court’s decisions in the Prostitution Reference and Downey address the harms associated with prostitution and found in both cases that these objectives were pressing and substantial.665

310. As set out in the argument above on arbitrariness or irrationality, all of the challenged provisions have the requisite link or nexus between the conduct that is criminally prohibited and the harms that they are meant to address.

311. As set out in the argument above on overbreadth and gross disproportionality, all of the challenged provisions impair the rights as minimally as possible.

312. Finally, the harms associated with prostitution, including the physical and psychological harms to those directly involved in it – often vulnerable women and children – and the broader negative effects to affected communities and society in general, are proportional to the possible criminal sanctions faced by those convicted of the challenged offences. Many of the challenged offences are summary conviction offences; the indictable offences are reserved for the most serious and harmful conduct. On balance, the offences constitute a reasonable limit to the affected right.

I. PARAGRAPH 213(1)(C) CONSTITUTES A JUSTIFIABLE LIMITATION ON THE APPLICANTS’ SECTION 2(B) RIGHT

313. Canada accepts the Supreme Court’s holding in 1990 that paragraph 213(1)(c) violates the section 2(b) freedom of expression. All judges agreed that the expressive activity to which this offence was directed was expression with an economic or commercial

665 J. Auth., Vol. 6, Tab 125, Prostitution Reference, at p.1135 (per Dickson C.J.), p.1195 (per Lamer J.) and p.1212 (per Wilson J.); J. Auth., Vol. 3, Tab 51, Downey at p.36 123

666 purpose. Dickson C.J. specifically noted that this expressive activity did not lie at, or even near, the core of the guarantee of freedom of expression.667

314. The burden of proof at the section 1 stage would ordinarily be on the government. However, this is not an ordinary case. The Applicants are asking this Court to reverse a decision of the Supreme Court that upheld the constitutional validity of paragraph

213(1)(c).

315. The Supreme Court has recognized that it has the discretion to overrule its own decisions in limited circumstances, but the standard that it has set for itself is very high: there must be compelling reasons for doing so:668

Let me say immediately that, even if a case were wrongly decided, certainty in the law remains an important consideration. There must be compelling circumstances to justify departure from a prior decision. On the other hand, it is clear that this Court may overrule its own decisions and indeed, it has exercised that discretion on a number of occasions. 316. The Applicants have cited no decisions of the Supreme Court that have

“augured the demise”669 of the Prostitution Reference or even question its conclusions. On the contrary, the Court continues to cite it and rely on its conclusions regularly.670

666 J. Auth., Vol. 6, Tab 125, (Prostitution Reference) at p.1136 (per Dickson C.J.), p.1188 (per Lamer J.) and p. 1206 (per Wilson J.) 667 Ibid. at p.1136. 668 J. Auth., Vol. 2, Tab 34, R. v. Bernard, [1988] 2 S.C.R. 833 at p. 849 per Dickson C.J. (dissenting), cited with approval by the majority in J. Auth., Vol. 3, Tab 45, R. v. Chaulk, [1990] 3 S.C.R. 1303 at pp.1352- 53(Chaulk) 669 J. Auth., Vol. 1, Tab 6, Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219 at p. 1244 670 Among the Supreme Court cases that are cited in either the Applicants’ Factum or this factum, those citing J. Auth., Vol. 6, Tab 125, the Prostitution Reference approvingly include: J. Auth., Vol. 4, Tab 69, Keegstra at 728-29 and 731 (and at 827 and 834 in the dissent); J. Auth., Vol. 3, Tab 45, Chaulk at p.1341 and p.1343; J. Auth., Vol. 3, Tab 47, Corbeil at p.835; J. Auth., Vol. 6, Tab 129, Rodriguez at p.588 (and at p.564 and p.619 in the dissent); J. Auth., Vol. 6, Tab 128, RJR-MacDonald at paras. 160 and 210 (and at para. 50 in the dissent); J. Auth., Vol. 2, Tab 25, G.(J.) at para. 58; J. Auth., Vol. 4, Tab 84, Mills at para. 85; J. Auth., Vol. 6, Tab 127, Reference re: Firearms Act (Can.), [2000] 1 S.C.R. 783 (Firearms Reference) at para. 39; J. Auth., Vol. 1, Tab 3, Blencoe at para. 55; J. Auth., Vol. 2, Tab 21, Little Sisters at para. 200; J. Auth., Vol. 5, Tab 107, Sharpe at para. 18 (and at para. 147 in the dissent); J. Auth., Vol. 4, Tab 78, Malmo-Levine at para. 173; J. Auth., Vol. 1, Tab 10, Chaoulli at para. 197 per Binnie and LeBel JJ.; J. Auth., Vol. 4, Tab 73, Labaye at para. 2 (and at para. 91 in the dissent); J. Auth., Vol. 1, Tab 9, JTI- Macdonald at para. 132; and J. Auth., Vol. 1, Tab 1, A.C. at para. 100 124

317. The Applicants have cited no cases for the authority that a lower court may overrule a decision of the Supreme Court that is directly on point or what standard must be met before a lower court will do so. If the Supreme Court only departs from its previous decisions in compelling cases, then a lower Court can only disregard a higher Court’s decision in cases which are beyond compelling.

318. The aspect of the Supreme Court’s decision that the Applicants seek to overturn, namely, the finding that the legislation was rationally connected to its objectives, was agreed to by all judges of the Court, including Wilson J., who dissented in the result.671

319. The Applicants argue that the Supreme Court’s unanimous finding should be overturned because the law is ineffective and has not served its objectives.

320. As already set out in the discussion about arbitrariness and irrationality under section 7 beginning at paragraph 262, communication for the purpose of prostitution in public places continues to occur because not everyone complies with the law, not because the law is ineffective or irrational. Furthermore, the evidence in this case shows that paragraph 213(1)(c) is an effective tool used regularly by police forces across the country. Finally, even the

Applicants’ own evidence suggests that the law had some deterrent effect upon the participants in street prostitution.

321. The cases cited by the Applicants are of no assistance to them. The Supreme

672 Court in Malmo-Levine rejected the “ineffectiveness” argument. Two other cases held that

673 inefficacy was irrelevant in division of powers analysis. RJR-MacDonald affirms the acceptability of the type of analysis based on logic and common sense applied by the

671 J. Auth., Vol. 6, Tab 125, Prostitution Reference at p.1135 (per Dickson C.J.), pp.1195-96 (per Lamer J.) and p.1212 (per Wilson J.) 672 J. Auth., Vol. 4, Tab 78, Malmo-Levine at para. 178 673 J. Auth., Vol. 6, Tab 127, Firearms Reference at paras. 18 and 57; J. Auth., Vol. 6, Tab 134, Ward v. Canada, [2002] 1 S.C.R. 569, at paras. 18, 22, 26 and 27 125

Supreme Court in the Prostitution Reference.674 The final case, Keegstra, confirms both that even a weak link or nexus suffices and that an analysis based solely on logic and common sense is acceptable. The Supreme Court held that a law will fail the rational connection test if it has “no impact in the quest to achieve Parliament’s admirable objectives, or in fact works in opposition to these objectives”.675 The Applicants’ acknowledgement in their factum that “the provisions do bear some relation to the objective that lies behind [it]’” is sufficient to meet the

676 rational connection test.

322. The Applicants have not attacked the Supreme Court’s binding conclusions in the Prostitution Reference that paragraph 213(1)(c) satisfies the final two parts of the Oakes test: it impairs rights as minimally as possible, and there is proportionality between its effects

677 and its objective. Canada relies on those conclusions, and the related submissions under section 7.

J. REMEDIES

323. Canada submits that this Court should dismiss this application, as all the challenged provisions are consistent with the Charter. However, if this Court finds that one or more of the challenged provisions constitute unjustifiable infringements of the Charter in some way, Canada makes the following submissions.

324. If this Court finds that s. 210 (bawdy-houses) constitutes an unjustifiable infringement of the Charter, this Court should declare that the reference to “prostitution” in the definition of “common bawdy-house” in ss. 197(1), as it applies to s. 210 only, is of no force or effect. The Applicants have not presented any evidence or argument on the constitutional

674 J. Auth., Vol. 6, Tab 128, RJR-MacDonald at paras. 82-86 675 J. Auth., Vol. 4, Tab 69, R. v. Keegstra, [1990] 3 S.C.R. 697 at p. 768 [emphasis added] 676 Applicants’ Factum at para. 467 [emphasis added] 677 J. Auth., Vol. 6, Tab 125 Prostitution Reference at pp.1135-40 (per Dickson C.J.) and pp.1195-1201 (per Lamer J.) 126 validity of s. 210 as it relates to the other type of bawdy-houses, namely, places kept, occupied or resorted to for the purpose of “the practice of acts of indecency”.

325. If this Court finds that any provision being challenged in this case constitutes an unjustifiable infringement of the Charter, Canada requests that the Court suspend any declaration of constitutional invalidity for a period of 18 months in order to allow Parliament a reasonable period of time to enact an appropriate legislative response, and that, in the interim, the law remains in force. In this way, public safety would be protected, while Parliament designs an alternative regime for regulating prostitution that would address the constitutional infirmity for the intervening period.

326. Legislating in response to prostitution raises difficult, contentious and serious policy issues involving the safety of prostitutes, their customers and the larger community.

There is no jurisdiction in the world that does not regulate prostitution in some fashion – and the models that exist for doing so are all enormously varied and distinct. As noted as early as

1985 in the Fraser Report:678

While legitimate concern can be evoked for the lot of prostitutes, it does not necessarily follow that they should enjoy some special immunity from the law which applies to the rest of the population. Although the proponents of this view have great concerns about substituting regulation for proscription, it is difficult to see how some degree of regulation could be avoided, especially where the result of decriminalization would be the creation of possibilities for commercialization of prostitution. There are strong arguments to be made for not only the application of existing legislation and regulations to such establishments, for example labour standards, public health, business licensing arid zoning requirements, but also for special provisions which address the special risks inherent in the activity of prostitution. 327. There are myriad policy choices that would have to be made in the context of designing a regime governing prostitution that addresses the concerns of the Applicants – while also avoiding community harm. The difficulty of designing such a regime is

678 J.A.R., Vol. 71, Tab 154B, p. 21036, Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution, Volume 2 127 demonstrated by the fact that even the Applicants’ affiants did not agree, or were not able to describe what regime would address their concerns.

328. The provisions the Applicants are seeking to strike down are inextricably linked to the existing legal regime governing prostitution-related activities, such as the procuring offences in paras. 212(1)(a) through (i) which were not challenged. In order to determine the best way of addressing the gaps left by the missing provisions, extensive consultation would be required with the many stakeholders, including police forces, municipalities and the provinces and territories which are responsible for enforcing and prosecuting the laws. Any potential municipal licensing or regulation would be constrained by the constitutional division of powers,679 and the extent to which municipalities would be able to impose licensing or other requirements is unclear.

329. It is Parliament’s role to fashion corrective legislation. Applying the Supreme

Court’s guidance in Schachter on the role of the Courts in fashioning Charter remedies,

Canada submits that the nature of the legislation at issue is such that it cannot be assumed with certainty that the legal regime sought by the Applicants would have been legislated by

680 Parliament had it been aware of the constitutional infirmity. Therefore, respectfully, this legislation does not lend itself to repair by the Court, and the suspension of any declaration of invalidity would be appropriate.

679 J. Auth., Vol. 6, Tab 135, Westendorp v. The Queen, [1983] 1 S.C.R. 43 at p. 54. 680 J. Auth., Vol. 6, Tab 131, Schachter v. Canada, [1992] 2 S.C.R. 679 at pp.705-7 PART IV - ORDER SOUGHT

330. Canada asks that this application be dismissed, with costs.

331. In the alternative, should this Court find an unjustifiable infringement, Canada asks that any declaration of constitutional invalidity be suspended for a period of 18 months.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Dated at Toronto this I"' day of September 2009.

Michael H. Morris General Counsel

Gail Sinclair General Counsel

Julie Jai General Counsel

Roy Lee Counsel

Counsel for the Respondent 129

SCHEDULE A - LIST OF AUTHORITIES

A.C. v. Manitoba (Director of Child and Family Services), [2009] S.C.J. No. 30, 2009 SCC 30;

Abarquez v. Ontario (2009), 95 O.R. (3d) 414, 2009 ONCA 374;

Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44;

Bolton v. Vancouver (City), (2002) 1 B.C.L.R. 4th 364, B.C.J. No. 908, 2002 BCSC 537;

British Columbia v. Imperial Tobacco, [2005] 2 S.C.R. 473, 2005 SCC 49;

Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219;

Canadian Council for Refugees v. Canada (2008), 74 Admin. L.R. (4th) 79, 2008 FCA 229, leave to appeal to SCC refused [2008] S.C.C.A. No. 422 (Q.L.);

Canada v. JTI-Macdonald Corp., [2007] 2 S.C.R. 610, 2007 SCC 30

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, 2005 SCC 35 (per Binnie and Lebel JJ.);

Charkaoui v. Canada, [2007] 1 S.C.R. 350, 2007 SCC 9;

Christie v. British Columbia (Attorney General), [2007] 1 S.C.R. 873, 2007 SCC 21;

Cochrane v. Ontario (2008), 92 O.R. (3d) 321 (C.A);

Downtown Eastside Sex Workers United Against Violence Society v. Attorney General (Canada) (2008), 305 D.L.R. 4th 713, 2008 BCSC 1726, per Ehrcke, J. (currently under appeal);

Fellowes, McNeil v. Kansa General International Insurance Co. (1998), 40 O.R. (3d) 456 (S.C.J.).

Hitzig v. Canada, (2003), 231 D.L.R. (4th) 104; 177 C.C.C. (3d) 449 application for leave to appeal to S.C.C. dismissed, [2004] 1. S.C.R. x;

Lesson v. University of Regina (2007), 301 Sask. R. 316 (Q.B.);

Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] S.C.R. 1120, 2000 SCC 69; 130

National Justice Compania Naviera SA v. Prudential Assurance Company Limited (“the Ikarian Reefer”), [1993] 2 Lloyd’s Report 68, rev’d on other grounds but aff’d on this point: [1995] 1 Lloyd’s Rep. 455 (C.A.);

New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46

PHS Community Services Society v. Canada (1998), 293 D.L.R. (4th) 392, 2008 BCSC 661 (S.C.)

R. v. Akouros, [2006] O.J. No.285 (S.C.J.)

R. v. Barrow (2001), 54 O.R. (3d) 417, [2001] O.J. No. 2219 (C.A.) application for leave to appeal to S.C.C. dismissed, [2001] S.C.C.A. No. 431;

R. v. Beare, [1988] 2 S.C.R. 387;

R. v. Beaudry, [2007] 1 S.C.R. 190, 2007 SCC 5;

R. v. Bedford (2000), 184 D.L.R. (4th) 727; 143 C.C.C. (3d) 311, (C.A.), leave to appeal to S.C.C. refused 147 C.C.C. (3d) vi, 193 D.L.R. (4th) vii;

R. v. Bernard, [1988] 2 S.C.R. 833;

R. v. Bramwell (1993), 86 C.C.C. (3d) 418, B.C.J. No. 2534 (C.A.);

R. v. Brandes, [1997] O.J. No.5443 (C.J. (Prov. Div.));

R. v. Caringi, [2002] O.J. No.2367 (C.J.), appeal dismissed [2005] O.J. No.766 (C.A.);

R. v. Celebrity Enterprises Ltd., [1977] 2 W.W.R. 144 (B.C. Co.Ct.)

R. v. Celebrity Enterprises Ltd., [1978] 2 W.W.R. 562, (1977), 41 C.C.C. (2d) 540 (B.C.C.A.);

R. v. Chaulk, [1990] 3 S.C.R. 1303;

R. v. Clay, [2003] 3 S.C.R. 735, 2003 SCC 75;

R. v. Corbeil, [1991] 1 S.C.R. 830, 64 C.C.C. (3d) 272, 5 C.R. (4th) 62);

R. v. De Munck, [1918] 1 K.B. 635;

R. v. Demers, [2004] 2 S.C.R. 489; 131

R. v. Downey, [1992] 2 S.C.R. 10;

R. v. Dyck (2008), 90 O.R. (3d) 409; 232 C.C.C. (3d) 450 (C.A.);

R. v. Edwards and Pine (1986) 32 C.C.C. (3d) 412, 45 C.R. (4th) 117, 110 W.A.C. 53 (B.C. Co. Ct.);

R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713;

R. v. Ellison, [2006] B.C.J. No.3241, B.C.P.C. 549 (B.C.P.C.);

R. v. Goltz, [1991] 3 S.C.R. 485, 76 C.C.C. (3d) 481 (S.C.C.)

R. v. Grilo (1991), 2 O.R. (3d) 514, 64 C.C.C. (3d) 53 (C.A.)

R. v. Heywood, [1994] 3 S.C.R. 761;

R. v. Hutt, [1978] 2 S.C.R. 476

R. v. Keegstra, [1990] 3 S.C.R. 697;

R. v. Kouri, [2005] 3 S.C.R. 789, 203 C.C.C. (3d) 217, 34 C.R. (6th) 86);

R. v. Kozier (1993) M.J. No.505, 21 W.C.B. (2d) 269 (Prov.Ct. Crim. Div.);

R. v. Labaye, [2005] 3 S.C.R. 728, 203 C.C.C. (3d) 170; 34 C.R. (6th) 1;

R. v. Lemieux (1991), 70 C.C.C. (3d) 434, [1992] R.J.Q. 295, 44 Q.A.C. 1 (C.A.);

R. v. Malmo-Levine, [2003] 3 S.C.R. 571;

R. v. Manion (2005), 377 A.R. 95 (Prov. Ct);

R. v. Mara (1996), 27 O.R. (3d) 643 (C.A.), O.J. No. 364;

R. v. Mara, [1997] 2 S.C.R. 630;

R. v. Mills, [1999] 3 S.C.R. 668, (2000), 139 C.C.C. (3d) 321 (S.C.C.);

R. v. Morgentaler, [1988] 1 S.C.R. 30; 132

R. v. Morrisey, [2000] 2 S.C.R. 90, 2000 SCC 39;

R. v. Ni (2002), 158 O.A.C. 230, 53 W.C.B. (2d) 485 (C.A.);

R. v. Nicolaou (2008), 249 C.C.C. (3d) 283, B.C.J. No. 1331 (B.C.C.A.);

R. v. Pake (1995), 103 C.C.C. (3d) 524 (Alta. C.A.);

R. v. Parker, (2000), 49 O.R. (3rd) 481 (C.A.);

R. v. Patterson (1967), 1 O.R. 429 (C.A.) per Schroeder J.A. (dissenting), rev’d [1968] S.C.R. 157;

R. v. Pelletier, [1999] 3 S.C.R. 863;

R. v. Polyak, [1991] O.J. No.846 (Ont. C.J. (Prov. Div.);

R. v. Ponomarev, [2007] O.J. No. 2494;

R. v. Rockert, [1978] 2 S.C.R. 704;

R. v. Ruzic, [2001] 1 S.C.R. 687;

R. v. Saftu, [2001] O.J. No. 3046 (Ont. C.J.);

R. v. Sharpe, [2001] 1 S.C.R. 45;

R. v. Sheikh, [2008] O.J. No. 1544, 77 W.C.B. (2d) 252 (Ont. Sup. C.J.);

R. v. Skinner, [1990] 1 S.C.R. 1235;

R. v. Stagnitta, [1990] 1 S.C.R. 1226;

R. v. Smith, [1987] 1 S.C.R. 1045, 34 C.C.C. (3d) 97 (S.C.C.);

R. v. St-Onge (2001),155 C.C.C. (3d) 517, [2001] J.Q. No. 2822;

R. v. Tremblay; R v. Malval; R. v. Jean; R. v. Bourdeau; R. v. Girouard; R v. St. Louis (1991), 68 C.C.C. (3d) 439, J.Q. No. 1652, (Que. C.A.);

R. v. Tremblay; R v. Malval; R. v. Jean; R. v. Bourdeau; R. v. Girouard; R v. St. Louis, [1993] 2 S.C.R. 932; 133

R. v. Wong (1977), 33 C.C.C. (2d) 6, 2 Alta. L.R. 90 (S.C. App. Div.);

R. v. Worthington (1972), 10 C.C.C. (2d) 311, 22 C.R.N.S. 34 (C.A.);

R. v. Woszczyna; R. v. Soucy (1983), 6 C.C.C. (3d) 221, O.J. No. 110 (Q.L.)

Reference re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123;

Reference re: B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486;

Reference re: Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31

RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R 199

Rodriguez v. British Columbia, [1993] 3 S.C.R. 519;

Sagl v. Chubb Insurance Company of Canada, 2009 ONCA 388;

Schachter v. Canada, [1992] 2 S.C.R. 679;

Shaw v. D.P.P., [1962] A.C. 220. (H.L.);

Ward v. Canada, [2002] 1 S.C.R. 569, 2002 SCC 17;

Westendorp v. The Queen, [1983] 1 S.C.R. 43;

Wakeford v. Canada (Attorney General) (2001), 81 C.R.R. (2d) 342 (Ont. Sup. Ct).

INTERNATIONAL CASE LAW

People v. Pulliam (1998), 62 Cal. App. 4th 1430, 73 Cal. Rptr. 2d 371

SECONDARY SOURCES

Cromwell, Locus Standi: A Commentary on the Law of Standing in Canada (Carswell: Toronto, 1986);

Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution (Fraser Report), Volume 2, p. 540-1. 134

INTERNATIONAL TREATIES

Convention on the Elimination of All Forms of Discrimination against Women, 1 March 1980, 1249 U.N.T.S. 13 (entered into force 3 September 1981, ratification by Canada 10 December 1981), available at: http://treaties.un.org/doc/Treaties/1981/09/19810903%2005-18%20AM/Ch_IV_8p.pdf

United Nations Convention against Transnational Organized Crime, 12 December 2000, 2225 U.N.T.S. 209 (entered into force 29 September 2003, ratification by Canada 13 May 2002), available at: http://treaties.un.org/doc/Treaties/2000/11/20001115%2011-11%20AM/Ch_XVIII_12p.pdf

Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, 12 December 2000, 2237 U.N.T.S. 319, Annex II (entered into force 25 December 2003, ratification by Canada 13 May 2002), available at: http://treaties.un.org/doc/Treaties/2000/11/20001115%2011-38%20AM/Ch_XVIII_12_ap.pdf 135

SCHEDULE B - STATUTES RELIED ON

1. Constitution Act 1982, being Schedule B to the Canada Act 1982 (U.K.) 1982, c.1, s. 52

2. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.) 1982, c.11, ss. 1, 2, 7 and 24

3. Criminal Code, R.S.C. 1985, c. C-46, ss. 197(1), and s. 210-213; s. 279.01-.04

INTERNATIONAL STATUTES

4. California Penal Code, pen: 647(b), 653.22(a) and 653.23(a)(1) and (2)

5. Sexual Offences Act 1956, c. 69 (U.K.), ss. 22, 30-31

6. Street Offences Act 1959, c. 57 (U.K.), s. 1

7. Sexual Offences Act 2003, c. 42 (U.K.), ss. 52-53

8. Criminal Law (Sexual Offences) Act, 1993, No. 20/1993 (Ireland), s. 7, 9, 10, 11

9. New York Penal Law, art. 230.00, 230.02, 230.04, 230.05, 230.06, 230.15, 230.20, 230.25, 230.30, 230.32 and 230.40

FORM 4C – BACKSHEET - Rules of Civil Procedure, Rule 4.02(3)

07-CV-329807PD1

TERRI JEAN BEDFORD, ET AL. AND ATTORNEY GENERAL OF AND ATTORNEY GENERAL OF ONTARIO CANADA Applicants Respondent Intervener

ONTARIO SUPERIOR COURT OF JUSTICE

Proceeding Commenced at Toronto

FACTUM OF THE RESPONDENT, THE ATTORNEY GENERAL OF CANADA

Department of Justice Ontario Regional Office The Exchange Tower 130 King Street West Suite 3400, Box 36 Toronto, Ontario M5X 1K6

Per: Michael H. Morris Tel: (416) 973-9704 Fax: (416) 952-0298 Our File: 2-587923 Law Society No.: 34397W

Solicitors for the Respondent