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07-Cv-329807Pd1 Ontario Superior Court of Justice 07-CV-329807PD1 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: TERRI JEAN BEDFORD, AMY LEBOVITCH, VALERIE SCOTT Applicants and ATTORNEY GENERAL OF CANADA Respondent and ATTORNEY GENERAL OF ONTARIO Intervener FACTUM OF THE INTERVENER, ATTORNEY GENERAL OF ONTARIO Ministry Of The Attorney General Crown Law Office - Criminal 720 Bay Street, 10th Floor Toronto, Ontario M5G 2K1 Christine Bartlett-Hughes Shelley Maria Hallett Tel: (416) 326-2351 / (416) 326-4639 Fax: (416) 326-4656 Email: [email protected] [email protected] Counsel for the Intervener, Attorney General of Ontario 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, ON 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] Counsel 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 Counsel for the Applicant, Amy Lebovitch AND TO: Department of Justice Ontario Regional Office The Exchange Tower 130 King Street West, Suite 3400 Toronto, ON 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] Counsel for the Respondent AND TO: Bennett Jones LLP 3400 One First Canadian Place P.O. Box 130 Toronto, ON M5X 1A4 Per: Robert W. Staley Derek J. Bell Ranjan K. Agarwal Tel: (416) 863-1200 Fax: (416) 863-1716 Counsel for the Interveners, The Christian Legal Fellowship, the Catholic Civil Rights League and REAL Women of Canada - i - Table of Contents Section Page Para. PART I – INTERVENER ATTORNEY GENERAL OF ONTARIO’S STATEMENT OF FACTS……………………………………………………… 1 1 A. OVERVIEW…………………………………………………………... 1 1 B. ILLUSTRATION OF THE HARMS OF PROSTITUTION: EVIDENCE OF THE APPLICANTS AND OTHER EXPERIENTIAL WOMEN………………………………………………………………….. 5 8 (i) Terri-Jean Bedford – Applicant and former prostitute………... 5 8 (ii) Valerie Scott – Co-applicant and former prostitute…………... 11 24 (iii) Amy Lebovitch – Co-applicant and current prostitute………. 16 35 (iv) Natasha Falle – Former prostitute…………………………… 22 49 (v) D.S. – Former prostitute……………………………………… 33 65 (vi) T.D. – Current prostitute……………………………………... 39 77 (vii) H.C. – Former prostitute…………………………………….. 44 91 (viii) Experiential witnesses whose evidence is not summarized here………………………………………………………………... 47 99 (ix) Comments by some experiential witnesses regarding youth in prostitution……………………………………………………... 48 100 C. SELECTED EXPERT EVIDENCE REGARDING THE POWER IMBALANCE BETWEEN PROSTITUTES AND CUSTOMERS……… 50 105 D. EXPERT EVIDENCE THAT THE HARMS ASSOCIATED WITH IN-CALL PROSTITUTION ARE PRESENT REGARDLESS OF THE LEGAL REGIME………………………………………………………… 54 117 (i) Expert Evidence that Prostitutes are Exposed to Significant Risk of Violence in Brothels and Other Indoor Venues………….. 55 119 (ii) Expert Evidence of the Exploitation Experienced by Prostitutes who are Unable to Exercise Control respecting the Services Provided and the Purchasers Served…………………….. 60 131 (iii) Expert Evidence on the Effects of Prostitution on the Emotional and Mental Health of Prostitutes……………………… 63 137 (iv) Expert Evidence on the Effects of Prostitution on Physical Health……………………………………………………………... 71 152 - ii - (v) Expert Evidence that the Stigma of Prostitution Exists Irrespective of Whether Prostitution and Prostitution-Related Activity is Legal or Illegal………………………………………... 73 157 (vi) Expert Evidence that Legalization Does Not Address the Problems of Illegal Prostitution, Trafficking Women, Child Prostitution and the Involvement of Criminal Organizations in Prostitution………………………………………………………... 74 160 (a) Evidence about Australia………………………………… 74 160 (b) Evidence about Germany………………………………... 75 166 (c) Evidence about the Netherlands…………………………. 76 168 (d) Evidence about the United States………………………... 78 171 (vii) Evidence of Prostitutes’ Perception of the Level of Risk…... 79 173 E. REPORTS ON PROSTITUTION IN CANADA……………………... 79 174 December, 2006: Report of the Subcommittee on Solicitation Laws of the House of Commons Standing Committee on Justice and Human Rights………..……………………………………….. 79 175 December, 1998: Report of the FPT Working Group in respect of Legislation, Policy and Practices Concerning Prostitution-Related Activities………………………………………………………….. 81 177 February, 1985: Report of the Special Committee on Pornography and Prostitution (Fraser Committee)……………….. 82 180 PART II – POINTS IN ISSUE…………………………………………………. 84 187 PART III – ARGUMENT………………………………………………………. 85 188 A. POSITION OF THE INTERVENER AG ONTARIO………………... 85 188 B. PURPOSE OF THE LEGISLATION………………………………… 86 191 (i) Relevant Considerations when Determining the Purpose of the Legislation………………………………………………………… 87 192 (ii) Purpose of the Bawdy House Provisions…………………….. 91 203 (iii) Purpose of the Living on the Avails Provisions……………… 94 209 (iv) Purpose of the Communicating Provisions…………………... 95 214 C. THE CHALLENGED PROVISIONS DO NOT INFRINGE THE PRINCIPLES OF FUNDAMENTAL JUSTICE…………………………. 97 220 (i) The Provisions Do Not Offend the Rule of Law……………… 97 222 - iii - (ii) The Provisions are Not Arbitrary or Irrational……………….. 99 227 (a) The Bawdy House Provision…………………………… 101 232 (b) The Living on the Avails Provision……………………. 101 233 (c) The Communicating for the Purpose of Prostitution Provision…………………………………………………….. 103 236 (d) The Combined Operation of the Provisions Is Not Inconsistent with the Objective of the Legislation………….. 103 239 (iii) The provisions are not overbroad or grossly disproportionate.. 105 242 D. APPLICATION OF SECTION 1 TO THE CASE AT BAR…………. 110 255 E. REMEDIES…………………………………………………………… 110 257 PART IV – ORDER REQUESTED……………………………………………. 111 258 07-CV-329807PD1 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: TERRI JEAN BEDFORD, AMY LEBOVITCH, VALERIE SCOTT Applicants and ATTORNEY GENERAL OF CANADA Respondent and ATTORNEY GENERAL OF ONTARIO Intervener FACTUM OF THE INTERVENER, ATTORNEY GENERAL OF ONTARIO PART I INTERVENER ATTORNEY GENERAL OF ONTARIO’S STATEMENT OF FACTS A. OVERVIEW 1. The position of the Intervener Attorney General of Ontario [hereinafter “AG Ontario”] on this application is that the challenged provisions of the Criminal Code in relation to prostitution do not infringe s. 7 of the Canadian Charter of Rights and Freedoms. These provisions derive from Canada’s common law heritage and have evolved in such a way as to insulate prostitution simpliciter from criminal sanction for various policy reasons. However, the absence of a -1- criminal sanction of prostitution in the context of completely private sexual relationships has not created the “right” in Canada to engage in institutional commercial prostitution or public prostitution. In these latter contexts Parliament has properly intervened through criminal sanction against bawdy houses and procuring, including living on the avails of prostitution, in order to protect vulnerable persons against commercial sexual exploitation. Through the creation of the offence of communicating for the purpose of prostitution, Parliament has intervened to protect communities and vulnerable individuals against the harms flowing from the visible purchase and sale of sex. There is no new evidence introduced on this application which justifies revisiting the decision of the Supreme Court of Canada in the Prostitution Reference Case upholding the constitutionality of the “communicating” offence as a reasonable limit under s. 1 of the Charter. 2. The Intervener AG Ontario will submit that prostitution involves the use of a person’s body, most often that of a woman, by another person, most often a man, for his own sexual satisfaction. Prostitution is not a mutually pleasurable exchange of the use of bodies but the unilateral use of one person’s body by another in exchange for consideration, usually money. The physical violence and psychological harms experienced by prostitutes stem from the inherent inequality that characterizes the prostitute-customer relationship, and not from the provisions of the Criminal Code. The customer is buying a sexual interaction from the prostitute: one that is directed by him for his sexual satisfaction. The ability of the prostitute to effect any control in that relationship is related to her own social and economic power vis-à-vis the customer. 3. The evidence on this application establishes that entry into prostitution is linked to -2- economic disadvantage, and histories of prior physical, sexual and emotional abuse. Victimized youth are particularly at risk of entering prostitution. A very high percentage of prostitutes in Canada enter prostitution prior to attaining the age of 18 years. Economic disadvantage and desperation lead prostitutes to tolerate exposure to increased risks of harm and high levels of actual harm. 4. The provisions of the Criminal Code in relation to prostitution operate to limit the negative effects of prostitution on both the prostitute and the public. As noted above, the provisions work together to curtail commercialized institutional prostitution and prohibit prostitution from being conducted in public. These provisions thereby convey disapprobation for the practice
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