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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 1 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
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