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Ontario Superior Court ruling on Canada’s existing prostitution laws

Ontario Superior Court ruling on Canada’s existing prostitution laws

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Published by Cecilia C Chung
In her decision, Justice Susan Himel effectively struck down the Criminal Code provisions dealing with living off the avails of prostitution, keeping a common bawdy house, and communicating for the purposes of prostitution.
In her decision, Justice Susan Himel effectively struck down the Criminal Code provisions dealing with living off the avails of prostitution, keeping a common bawdy house, and communicating for the purposes of prostitution.

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Published by: Cecilia C Chung on Oct 19, 2010
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05/12/2014

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[363] The applicants also presented an alternative s. 7 argument grounded in the use of
“reasonable hypotheticals,” which are potential fact scenarios constructed to demonstrate the
unconstitutional impact of an impugned law.

[364] The use of reasonable hypotheticals arose in challenges to mandatory minimum sentences
under s. 12 of the Charter with the case of R. v. Smith, [1987] 1 S.C.R. 1045 and subsequently,
the case of R. v. Goltz, [1991] 3 S.C.R. 485. The Court extended their use to s. 7 overbreadth
analysis in Heywood, supra. In R. v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, the Supreme
Court held that reasonable hypotheticals could be used to decide whether a law was overbroad or
a punishment was cruel and unusual because those issues require a proportionality analysis
comparing law to facts. Fact scenarios beyond the immediate can only assist in that comparison.
In Morgentaler, supra, the Court used a hypothetical set of facts in their s. 7 analysis to
determine whether therapeutic abortions, in theory permitted by the Criminal Code, were
actually attainable in practice. The use of reasonable hypotheticals has been curtailed in the
ensuing years.

[365] As a result of the voluminous evidentiary record put before me in this case, I have found
on a balance of probabilities that the impugned provisions materially contribute to the decreased
personal security of the applicants. I therefore do not find it necessary to find a deprivation of
security of the person based upon “reasonable hypotheticals.”

[366] Nonetheless, at the next stage of the s. 7 analysis, reasonable hypotheticals are available
as a limited means of demonstrating that the effects caused by the impugned provisions are not
proportionate to the underlying legislative objectives. This will only be the case where the
principle of fundamental justice that the impugned provision violates requires a proportionality
analysis.

3. Are These Deprivations in Accordance with the Principles of Fundamental Justice?

[367] The applicants have proven that the impugned provisions deprive them of liberty and
security of the person. To succeed in their argument, the applicants must now show that these

2010 ONSC 4264 (CanLII)

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deprivations are not in accordance with the principles of fundamental justice.

[368] The applicants submit that each of the impugned provisions operate contrary to four such
principles: (1) laws must not arbitrarily deprive individuals of their protected rights; (2) laws
must not be broader than necessary to accomplish their purpose; (3) the harmful effects of a law
must not be grossly disproportionate to the benefits gained; and (4) the state must legislate in
accordance with the rule of law. I will consider each of these arguments in turn.

(A) Do the Impugned Provisions Arbitrarily Deprive the Applicants of Liberty and
Security of the Person?

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