Bedford - Attorney General of Canada

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Court File No.: C52799 and C52814 COURT OF APPEAL FOR ONTARIO BETWEEN: TERRI JEAN BEDFORD, AMY LEBOVITCH, VALERIE SCOTT Applicants (Respondents in appeal) and

ATTORNEY GENERAL OF CANADA Respondent (Appellant in appeal) and

ATTORNEY GENERAL OF ONTARIO Intervener (Appellant in appeal)

FACTUM OF THE APPELLANT, THE ATTORNEY GENERAL OF CANADA
March 1, 2011 Department of Justice Canada 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, Matthew Sullivan and Sandra Nishikawa

Tel: (416) 973-9704 Fax: (416) 952-4518 E-mail: [email protected] L.S.U.C. No.: 34397W Counsel for the Appellant, the Attorney General of Canada

TO:

Registrar Court of Appeal for Ontario 130 Queen Street West Toronto, ON M5H 2N5 Alan Young Osgoode Hall Law School York University 4700 Keele Street North York, Ontario M3J 1P3 Tel: 416-736-5595 Fax: 416-736-5736 E-mail: [email protected] Counsel for the Respondent, Terri-Jean Bedford

AND TO:

AND TO:

Stacey Nichols Neuberger Rose LLP 1392 Eglinton Avenue West Toronto, Ontario M6C 3E4 Tel: 416-364-3111 Fax: 416-364-3271 Email: [email protected] Counsel for the Respondent, Valerie Scott

AND TO:

Ron Marzel Barrister & Solicitor 1170 Sheppard Ave West, Unit 10 Toronto, Ontario M3K 2A3 Tel: 416-485-5800 Fax: 416-485-1610 E-mail: [email protected] Counsel for the Respondent, Amy Lebovitch

AND TO:

Ministry of the Attorney General of Ontario 720 Bay Street, 10th Floor Toronto, Ontario M5G 2K1 Per: Jamie Klukach / Christine Bartlett-Hughes/ Megan Stephens Tel: 416-326-2351/ 4588 / 4600 Fax: 416-326-4656 Email: [email protected] [email protected] [email protected] Counsel for the Appellant in Appeal, The Attorney General of Ontario

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INDEX
PART I – OVERVIEW....................................................................................................... 2 PART II – STATEMENT OF FACTS ............................................................................... 4 A. THE EVIDENCE BEFORE THE COURT ........................................................ 4 1) The Applicants’ Affidavit Evidence ................................................................... 5 2) Canada’s Affidavit Evidence .............................................................................. 5 3) Additional materials in the Joint Application Record......................................... 6 B. CANADA’S EVIDENCE ON CAUSALITY AND THE RISK OF HARM ASSOCIATED WITH PROSTITUTION....................................................................... 6 1) Physical and psychological harms to prostitutes ................................................ 6 2) Harm to communities.......................................................................................... 8 3) The stigma of prostitution comes from the act of prostitution itself................... 9 4) Prostitution is physically risky and psychologically harmful regardless of venue or legal regime .......................................................................................................... 10 a) There is no hard divide between street and off-street prostitution................ 10 b) Off-street prostitution is physically risky ..................................................... 13 c) The harms of prostitution still occur in regimes that have decriminalized aspects of prostitution ........................................................................................... 14 5) Impact of impugned Criminal Code provisions on the risks of harm to prostitutes and communities ..................................................................................... 15 C. APPLICANTS’ EVIDENCE ON CAUSALITY AND THE RISKS OF HARM ASSOCIATED WITH PROSTITUTION..................................................................... 17 1) Evidence of Dr. John Lowman ......................................................................... 17 2) Evidence of the Applicants’ experts other than Dr. John Lowman .................. 20 D. REVIEW OF THE DECISION OF THE COURT BELOW............................ 21 1) Findings of the court below on Canada’s evidence .......................................... 21 2) Factual and legal findings of the court below on the key issues in dispute ...... 22 PART III – POINTS IN ISSUE ........................................................................................ 24 PART IV – SUBMISSIONS............................................................................................. 25 A. FAILURE TO FOLLOW THE 1990 PROSTITUTION REFERENCE WAS AN ERROR ......................................................................................................................... 25 1) No flexibility on the part of the lower court not to follow the binding precedent of the Supreme Court’s 1990 Prostitution Reference ............................................... 26 2) The Prostitution Reference continues to be valid binding law ......................... 27 3) The s. 7 arguments here do not differ in substance from those in the Prostitution Reference .............................................................................................. 28 4) The type of expression in issue and underlying assumptions have not changed ........................................................................................................................... 29 5) The evidence did not support a novel factual foundation justifying a departure ........................................................................................................................... 31 B. STANDARD OF REVIEW .............................................................................. 33 1) Standard of review is correctness ..................................................................... 33 a) Findings were inextricably linked to errors of law ....................................... 33

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b) The dispositive findings on Charter breaches were made on legislative fact evidence and there were no viva voce witnesses .................................................. 35 c) Alternatively, Canada can meet the palpable and overriding error standard 36 C. LEGAL ERRORS IN ASSESSMENT OF THE EVIDENCE ......................... 37 a) Did not specify the evidence relied on or provide adequate reasons ............ 37 b) Did not properly exercise the role of gatekeeper in respect of the expert opinion evidence ................................................................................................... 38 c) Errors in relying on legislative history materials to make dispositive findings on the causality issue central to the dispute .......................................................... 40 d) Did not adequately consider principles of reliable research methodology ... 41 D. ERRORS OF LAW........................................................................................... 42 1) Section 7 – Overview........................................................................................ 42 2) Section 7 – The provisions do not engage security of the person..................... 43 a) The proper test for causation in s. 7 cases .................................................... 43 b) Onus of proof not met: the evidence did not establish a causal connection . 45 3) Section 7 - Objectives and scope of the impugned provisions ......................... 48 a) Overview....................................................................................................... 48 b) Section 212(1)(j) – Living on the avails ....................................................... 49 c) Section 210 – Common bawdy house........................................................... 50 d) Section 213(1)(c) – Communicating for the purpose of prostitution............ 51 4) Section 7 – The impugned provisions accord with fundamental justice .......... 52 a) Overview....................................................................................................... 52 b) The proper test for overbreadth..................................................................... 53 c) The bawdy house provision is not overbroad ............................................... 54 d) The living on the avails provision is not overbroad...................................... 56 e) Communication for the purpose is not overbroad......................................... 58 f) The correct test for arbitrariness ................................................................... 58 g) The bawdy house provision is not arbitrary.................................................. 60 h) The living on the avails provision is not arbitrary ........................................ 60 i) Communication for the purpose is not arbitrary ........................................... 61 j) The three provisions taken together are not arbitrary ................................... 61 k) The correct test for gross disproportionality................................................. 62 l) None of the provisions are grossly disproportionate .................................... 63 5) Section 2(b) – Communication for the purpose does not lie near the core of the guarantee ................................................................................................................... 65 6) Section 2(b) breach remains justified under s.1................................................ 66 7) Section 1 analysis for any s. 7 violation ........................................................... 67 8) Standing ............................................................................................................ 68 E. REMEDY.......................................................................................................... 69 1) If the provisions are unconstitutional, this Court should grant an 18 month suspension ................................................................................................................. 69 PART V – ORDER SOUGHT.......................................................................................... 71 APPENDIX - ERRORS IN THE ASSESSMENT OF EVIDENCE ................................ 72 A. ERRORS IN NOT CONSIDERING THE NON-EXPERT EVIDENCE......... 72 1) Experiential witnesses....................................................................................... 72

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Police and community witnesses ...................................................................... 73 B. ERRORS IN THE ASSESSMENT OF THE EXPERT EVIDENCE .............. 75 1) Reliance upon the Applicants’ expert Dr. John Lowman ................................. 75 a) Ignoring Dr. Lowman’s disavowal of his evidence of a cause and effect relationship............................................................................................................ 76 b) Not addressing the limitations of Dr. Lowman’s methodology.................... 77 c) Not addressing serious errors, misstatements and carelessness in Dr. Lowman’s evidence .............................................................................................. 80 d) Not addressing Canada’s evidence demonstrating Dr. Lowman’s confirmatory bias .................................................................................................. 81 e) Reliance on an erroneous study produced by Dr. Lowman’s Master’s student ....................................................................................................................... 82 f) Reliance on Dr. Lowman’s “echo studies” appended to his affidavit .......... 83 2) Errors in not adequately considering Canada’s expert evidence ...................... 84 a) Errors in dismissing Drs. van de Pol, Pratt and Sullivan .............................. 86 b) Errors in rejecting Drs. Farley, Raymond and Poulin................................... 90 c) Errors in rejecting Drs. Melchers and Kennedy [Canada’s experts] ............ 93 3) Errors in the assessment of the Applicants’ experts other than Dr. Lowman... 94 CERTIFICATE ................................................................................................................. 98 SCHEDULE A – LIST OF AUTHORITIES.................................................................... 99 SCHEDULE B – STATUTES AND REGULATIONS ................................................. 104

2)

Court File No.: C52799 and C52814 COURT OF APPEAL FOR ONTARIO BETWEEN: TERRI JEAN BEDFORD, AMY LEBOVITCH, VALERIE SCOTT Applicants (Respondents in appeal) and

ATTORNEY GENERAL OF CANADA Respondent (Appellant in appeal) and

ATTORNEY GENERAL OF ONTARIO Intervener (Appellant in appeal)

FACTUM OF THE APPELLANT, THE ATTORNEY GENERAL OF CANADA
1. The Appellant, the Attorney General of Canada (“Canada”), appeals from the

judgment of the Honourable Justice S.G. Himel of the Superior Court of Justice, dated September 28, 2010, declaring that s. 210 (common bawdy house) as it relates to prostitution, s. 212(1)(j) (living on the avails) and s. 213(1)(c) (communicating for the purpose of prostitution) of the Criminal Code violate s. 7 of the Charter and cannot be saved by s. 1, and that s. 213(1)(c) also violates s. 2(b) and cannot be saved by s. 1.

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PART I – OVERVIEW
2. In 1990, the Supreme Court of Canada (“Supreme Court”) considered the

constitutionality of two of the three Criminal Code provisions challenged here, sections 210 and 213(1)(c), and found that neither violated s. 7 of the Charter, and that s. 213(1)(c) infringed s. 2(b) but was justified under s. 1. The Respondents in Appeal (hereinafter “Applicants”) asked the court below to revisit this ruling on the basis that they had new evidence and arguments that the provisions violated their Charter rights by increasing their risk of harm when they engage in prostitution. The Applicants, however, failed to demonstrate any basis in law or fact that would justify a reconsideration of the Supreme Court’s conclusions or cast doubt on the constitutionality of any of the three provisions challenged here. The court below erred in finding that they did so. 3. The court below accepted that all prostitution, regardless of venue, carries a risk

of violence for those who engage in it – and that there are multiple factors responsible for the violence faced by prostitutes.1 Parliament has chosen to address the difficult and complex social problems raised by prostitution by criminalizing what it views as the most harmful and public emanations of the practice of prostitution. It has done so in order to discourage the practice of prostitution to protect communities and prostitutes themselves from harm. 4. The court below found Parliament’s choice not to criminalize prostitution

directly, but to prohibit certain practices related to it, to be in breach of s. 7 because it forces “prostitutes to choose between their liberty interest and their right to security of the person”. Yet the law does not oblige an individual to engage in an activity that could risk their security. It is the practice of prostitution in any venue, exacerbated by efforts to avoid the law that is the

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source of the risk of harm to prostitutes. The legislative provisions seek to deter individuals from choosing to engage in the practice of prostitution at all. 5. In making its finding, the court below erred in assuming that an individual is

entitled to engage in prostitution and that Parliament is obliged to minimize hindrances and maximize safety for those that do so contrary to the law. It essentially accepted a "security of the person" argument that is no different in substance than the "economic liberty" argument that was rejected by the Supreme Court in 1990. 6. The court below further erred in law by misconstruing the legislative purposes of It also applied the wrong legal tests relating to arbitrariness,

the impugned provisions.

overbreadth and gross disproportionality as set out in recent decisions of this Honourable Court. 7. In attempting to persuade the court below that the factual circumstances

underlying the Supreme Court’s decision in the Prostitution Reference had materially changed, the Applicants put before it a voluminous body of social science evidence on the issue of an alleged causal connection between the impugned provisions and the endangerment of prostitutes. This evidence did not support the Applicants’ claim that the impugned provisions increase the dangers of engaging in prostitution or that it can be “safely” practiced off-street. They acknowledged that the evidence was “fraught with methodological limitations” and that the issue of the relationship of the law to the risks and harms flowing from prostitution had “eluded researchers for decades”.2 8. The court below erred in finding that the Applicants had met their onus of proof

to establish Charter breaches on the basis of evidence that was demonstrated to be unreliable

1 2

Appeal Book, Tab 5, p. AB 53, Reasons of Himel J. at para. 116 Applicants’ Factum before Himel J. at para. 123

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and did not support their assertions. The court also erred in largely ignoring Canada’s evidence on the risk of dangers and harms associated with prostitution regardless of the venue or legal regime in which it takes place. Even if it was open to the court below to not follow the Supreme Court’s 1990 Prostitution Reference (which is denied) the evidentiary record did not establish that the factual or legal underpinnings had changed sufficiently to justify doing so. The

evidence also did not support a finding that they had met their onus of proof to establish that s. 212(1)(j) breached s. 7. 9. Substantial controversy surrounds the issue of how to address the risk of violence

and harms to prostitutes and communities that are associated with the practice of prostitution. Relying on this controversy, the Applicants advanced what were, essentially, policy arguments in support of their position. These arguments do not, however, support a finding of Charter breaches in respect of provisions that cannot be demonstrated, on a balance of probabilities, to be causally connected to the risks and harms alleged here.

PART II – STATEMENT OF FACTS
A. THE EVIDENCE BEFORE THE COURT 10. The evidence before the court below consisted of 88 volumes of materials.3 The

Applicants’ case rested upon the proposition that this evidence demonstrated that the impugned provisions “materially contribute” to a deprivation of their security of the person4 and provided a

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All 88 volumes of the Joint Application Record and the Supplementary Joint Application Record, with the exception of Volume 33 are contained on a single searchable DVD. This DVD also contains the factums of all of the parties and interveners at first instance. 4 Appeal Book, Tab 5, pp. AB 116, Reasons of Himel J. at para. 359

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foundation to revisit the decision of the Supreme Court upholding the constitutionality of sections 210 and 213(1)(c).5 1) The Applicants’ Affidavit Evidence 11. The Applicants’ evidence consists of 25 affidavits6 set out in Volumes 1-32 of the

Joint Application Record: • • • • • • affidavits from the three Applicants; affidavits from seven “experiential” witnesses (i.e. women who have had personal experiences as prostitutes); one affiant from a social service agency for prostitutes; eight expert witnesses; a journalist and a Member of Parliament; and two expert reply witnesses, and one other reply witness.

2) Canada’s Affidavit Evidence 12. Canada’s evidence consists of 36 affidavits from 34 affiants,7 which are set out in

Volumes 33 – 64 of the Joint Application Record: • • • • • • nine experiential witnesses (many of whom testified anonymously); nine police officers from across Canada; a Crown Attorney from Ontario; two affiants who provide social services to those engaged in prostitution; three community affiants; two experts on prostitution in Canada;

Appeal Book, Tab 5, pp. AB 31 and AB 138, Reasons of Himel J. at paras. 458 – 460 Joint Application Record (JAR), Vol. 15, Tab 51 and Vol. 20, Tab 52, Dr. Lowman filed an Affidavit and a Supplementary Affidavit. 7 JAR, Vol. 47, Tab 111 and Vol. 61, Tab 123, Both Dr. van de Pol and Dr. Melchers filed supplementary affidavits in response to developments which occurred after their original affidavits were filed.
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four experts on the experience of other countries with regulating prostitution; two research methodology experts; and two Department of Justice experts on legislative history and statistics.

3) Additional materials in the Joint Application Record 13. Volumes 65 – 86 consist of documents relating to the legislative history of the

prostitution provisions, including government and Committee reports, debates and other documents. Statistics Canada Reports are included in Volume 86. The Supplementary Joint Application Record, set out in two volumes, contains answers to undertakings, answers on written examinations and various other materials. B. CANADA’S EVIDENCE ON CAUSALITY ASSOCIATED WITH PROSTITUTION 14. AND THE RISK OF HARM

It was and remains Canada’s position that the evidence failed to demonstrate a

causal connection between the impugned provisions and harm to prostitutes. 1) Physical and psychological harms to prostitutes 15. prostitutes. Prostitution presents significant risk of physical and psychological harm to The physical harm can be a result of violence from pimps or johns,8 from

unprotected sex,9 or from related lifestyle issues, such as drug addiction.10 Some pimps use physical violence in addition to psychological intimidation as a means of controlling prostitutes

JAR, Vol. 55, Tab 119, pp. 16066-7, Affidavit of Dr. Janice Raymond (Raymond Affidavit), paras. 78-9. Dr. Raymond’s five country study found 80% of prostitutes had been physically harmed as a result of prostitution; JAR, Vol. 49, Tab 113, p. 14233, Affidavit of Dr. Melissa Farley (Farley Affidavit), para. 15. Dr. Farley’s research found 75-95% of women had been physically assaulted in prostitution; Exhibit Book, Vol. 1, Tab 10, p. EB 285, K.C. Affidavit, para. 14 9 JAR, Vol. 3, Tab 16, pp. 294-5, Affidavit of Valerie Scott (Scott Affidavit), para. 7; see also: JAR, Vol. 4, Tab 17, p. 630, Transcript of Cross-examination of Valerie Scott (Scott Transcript), Qs. 317-8; Exhibit Book, Vol. 1, Tab 11, p. EB 302, Affidavit of P.M. (P.M. Affidavit), para. 37 10 JAR, Vol. 34, Tab 81, p. 10017, Affidavit of Det. Sgt. Page (Det. Sgt. Page Affidavit), para. 29; Exhibit Book, Vol. 1, Tab 5, p. EB 219, Affidavit of Dawn Hodgins (Hodgins Affidavit), para. 28; Exhibit Book, Vol. 1, Tab 7, p. EB 247, Affidavit of J.S. (J.S. Affidavit), para. 19

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7 and preventing them from leaving prostitution.11 Others provide drugs, creating an addiction which makes the prostitute even more dependent.12 16. The psychological harm resulting from prostitution has been documented by

experts,13 and described by the experiential affiants.14 J.S. stated:15
It is violating to be reduced to body parts. Not only are you reduced to a commodity, but you have to pretend that you like it, time after time. For me, that was the most humiliating part of being prostituted. The more I buried the humiliation of being entered sexually by strangers, the more unbearable the shame became. That is why I had to be high.

17.

Corporal Sonia Joyal interviewed hundreds of prostitutes in Edmonton over four

years and described the use of drugs by prostitutes to cope with the psychological impact of prostitution:16
Almost all of these women attributed their continued involvement in the sex trade as being necessary in order to finance their drug habits. At the same time, most of these same women admitted to using drugs to cope with having to have sex for money and reported that they needed to be high in order to engage in prostitution.

18.

Many prostitutes share certain background factors which make them more

vulnerable to being lured into a life of prostitution. These pre-existing vulnerabilities include childhood physical and sexual abuse or emotional neglect, dissociation, isolation or alienation

Exhibit Book, Vol. 1, Tab 1, p. 21, Affidavit of Natasha Falle (Falle Affidavit), para. 63; Exhibit Book, Vol. 1, Tab 10, p. EB 287-8, K.C. Affidavit, para. 22; Exhibit Book, Vol. 1, Tab 11, pp. 298-300, P.M. Affidavit, paras. 17-23; JAR, Vol. 35, Tab 83, p. 10243, Affidavit of Det. Const. Michelle Holm (Det. Const. Holm Affidavit), para. 12 12 See: Exhibit Book, Vol. 1, Tab 9, p. EB 273-4, Affidavit of L.B. (L.B. Affidavit), para. 6; Exhibit Book, Vol. 1, Tab 8 p. EB 263-4, Affidavit of H.C. (H.C. Affidavit), para. 11; JAR, Vol. 35, Tab 82, pp. 10055-6, Affidavit of Det. JoAnn McCartney (Det. McCartney Affidavit), para. 9 13 JAR, Vol. 46, Tab 107, pp. 13247-8, Affidavit of Dr. M Alexis Kennedy (Kennedy Affidavit), paras. 31-34; JAR, Vol. 46, Tab 108A, pp. 13462-81, Transcript of Cross-examination of Dr. M. Alexis Kennedy (Kennedy Transcript), Exhibit “I”; JAR, Vol. 49, Tab 113, pp. 14237-40, Farley Affidavit, paras. 32-42 14 Exhibit Book, Vol. 1, Tab 5, p. EB 223-4, Hodgins Affidavit, para. 43 15 Exhibit Book, Vol. 1, Tab 7, p. EB 256-7, J.S. Affidavit, para. 48; See also: JAR, Vol. 35, Tab 83, p. 10244, Det. Const. Holm Affidavit, para. 14 regarding her feelings after working undercover as a prostitute. 16 JAR, Vol. 36, Tab 88, pp. 10553-4, Affidavit of Corporal Sonia Joyal (Corp. Joyal Affidavit), para. 28

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8 from family, lack of education and job skills and low self-esteem.17 These vulnerabilities can be exploited by pimps who prey upon a person’s underlying insecurities, exacerbating the psychological harm.18 “He made me feel like I was not worthy, and that I had no choices. He made me feel like I could not live without him”.19 2) Harm to communities 19. Police and community affiants testified about the harms which are visited on

neighbourhoods by the presence of prostitution. These harms go beyond excessive noise and traffic20 and include: increased violence, the accosting of women and girls, drug use, and needles around schools.21 These harms are not limited to street prostitution but are also caused by the presence of bawdy houses in residential neighbourhoods.22 People no longer feel safe in their neighbourhood, children are exposed to johns, pimps and prostitutes, and to the public display of sex for sale.23 20. Communities are also confronted with harmful activities which often accompany

prostitution, such as drugs, gangs and violence.24 Police evidence indicated that organized crime

JAR Vol. 15, Tab 51, pp. 4162-3, Affidavit of Dr. John Lowman (Lowman Affidavit), para. 33; JAR, Vol. 19, Tab 51R, pp. 5421, Lowman Affidavit, Exhibit “R”; JAR, Vol. 38, Tab 96, pp. 10933-4, Affidavit of Kathleen Quinn (Quinn Affidavit), para. 23; JAR, Vol. 49, Tab 113, pp. 14235-7, 14239 and 14243, Farley Affidavit, paras. 22-30, 36, 38 and 53; JAR, Vol. 40, Tab 102, pp 11390-93, Affidavit of Dr. Richard Poulin (Poulin Affidavit), paras. 34-39; Exhibit Book, Vol. 1, Tab 5, pp. EB 213 and EB 214, Hodgins Affidavit, paras. 7 and 10; Exhibit Book, Vol. 1, Tab 4, pp. EB 204-6, Affidavit of D.S. (D.S. Affidavit), paras. 53-57; JAR, Vol. 2, Tab 12, pp. 1102, Transcript of the Cross-examination of Terri Jean Bedford (Bedford Transcript), Qs. 157-220 18 JAR, Vol. 35, Tab 82, p. 10057, Det. McCartney Affidavit, paras. 14-15 19 Exhibit Book, Vol. 1, Tab 6, p. EB 234, Affidavit of T.D. (T.D. Affidavit), para. 11 20 See: JAR, Vol. 39, Tab 99, pp. 11196-7, Affidavit of Cheryl Parrott (Parrott Affidavit), paras. 28-31 and 39; JAR, Vol. 35, Tab 83, p. 10250, Det. Const. Holm Affidavit, para. 27; JAR, Vol. 35, Tab 84, p. 10272, Affidavit of Detective Randy Cowan (Det. Cowan Affidavit), para. 25 21 See for example: JAR, Vol. 39, Tab 101A, p. 11377, Affidavit of Dennis St. Aubin (St. Aubin Affidavit), Exhibit “A”, Dennis St. Aubin’s presentation to the House of Commons Subcommittee; See also: Joint Appeal Auth., Vol. 1, Tab 7, Bedford v. Canada, 2010 ONCA 814, Appeal Book, Tab 10, pp. AB 207-8, Reasons for Decision of Rosenberg J. at para. 77 22 JAR, Vol. 39, Tab 99, p.11212-3, Parrott Affidavit, paras. 68-70 23 JAR, Vol. 34, Tab 81, p. 10015, Det. Sgt. Page Affidavit, para. 25 24 See: JAR, Vol. 34, Tab 81, pp. 10016-7, Det. Sgt. Page Affidavit, paras. 27-29; JAR, Vol. 37, Tab 91, pp. 10677-8, Affidavit of Detective Constable Eduardo Dizon (Det. Const. Dizon Affidavit), paras. 20-21

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9 is involved in prostitution, particularly in running strip clubs and massage parlours.25 Drug trafficking often co-exists with prostitution, with prostitutes and pimps both using and trafficking drugs.26 21. Indoor bawdy houses, which are less visible, can be used to conceal under-aged Police investigating residential bawdy houses have often found

or trafficked prostitutes.

vulnerable women brought in from abroad or under-aged girls working as prostitutes.27 Bawdy houses are often an integral part of human trafficking syndicates. This is where victims may be “trained” and housed, and then transported elsewhere for the purpose of sexual exploitation.28 Massage parlours or strip clubs, which are in fact bawdy houses, can also harm the community through noise and harassment, and may conceal more serious crimes.29 3) The stigma of prostitution comes from the act of prostitution itself 22. Prostitution, meaning the sale of sexual services for consideration, has been

stigmatized for millennia, across cultures, and across a wide variety of legislative regimes. The stigma associated with prostitution continues to exist regardless of legal regime, including in the Netherlands, which has a long history of tolerating prostitution, as well as other jurisdictions where aspects of prostitution have been decriminalized.30

JAR, Vol. 35, Tab 83, p. 10248, Det. Const. Holm Affidavit, para. 21; JAR, Vol. 34, Tab 81, p. 10012, Det. Sgt. Page Affidavit, para. 18; JAR, Vol. 34, Tab 78, p. 9758, Affidavit of Detective Jim Morrissey (Det. Morrissey Affidavit), paras. 10 and 11 26 See: JAR, Vol. 34, Tab 81, p. 10016, Det. Sgt. Page Affidavit, para. 27; JAR, Vol. 39, Tab 99, pp. 11195-6, Parrott Affidavit, paras. 24-27; JAR, Vol. 36, Tab 88, pp. 10553-4, Corp. Joyal Affidavit, paras. 28-29. 27 JAR, Vol. 35, Tab 83, p. 10248-9, Det. Const. Holm Affidavit, para. 23-24; JAR, Vol. 34, Tab 78, p. 9759, 9760-1, Det. Morrissey Affidavit, paras. 13, 20-23; JAR, Vol. 35, Tab 84B, pp. 10283-4, Det. Cowan Affidavit, Exhibit “B” “Synopsis of Human Trafficking Investigations” 28 JAR, Vol. 34, Tab 78, p. 9761, Det. Morrissey Affidavit, para. 22; JAR, Vol. 35, Tab 86, p. 10393, Affidavit of Detective Constable Oscar Ramos (Det. Const. Ramos Affidavit), para. 13: JAR, Vol. 37, Tab 94, p. 10870, Affidavit of Renna Weinberg (Weinberg Affidavit), para. 8 29 JAR, Vol. 35, Tab 86, p. 10393, Det. Const. Ramos Affidavit, para. 13; JAR, Vol. 36, Tab 88, p. 10555, Corp. Joyal Affidavit, para. 31; and JAR, Vol. 39, Tab 99, p. 11212, Parrott Affidavit, paras. 68-70 30 JAR, Vol. 47, Tab 110, pp. 13531-2, Affidavit of Dr. Lotte Constance van de Pol (Dr. van de Pol Affidavit), para. 82-3; JAR, Vol. 32, Tab 65G, p. 9270-72, 9277-78, 9282, 9286-87, Transcript of Cross-examination of Dr.

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4) Prostitution is physically risky and psychologically harmful regardless of venue or legal regime a) There is no hard divide between street and off-street prostitution 23. The Applicants argued that there was a strong dichotomy between street

prostitution, which is dangerous and indoor prostitution, which they argued could be made much safer. Most prostitution practices, however, defy any characterization as indoor or outdoor.31 For example, women may work the streets while also taking out-calls by phone or switching from one venue to another. Even the term “street prostitute” encompasses a wide variety of activities, from drug-addicted survival prostitutes working for crack cocaine, to high-end prostitutes frequenting the lobbies of upscale hotels. The varied experiences of the women who worked as prostitutes and who gave testimony in this Application are set out in the table below, which demonstrates the variety of activities, fluidity of venues and the fact that the risk of violence is present, regardless of the venue.
Description of Venue and Experiences Record Concordance

Worked on the street and for an escort agency in Montreal, in a fetish house in Ottawa, and out of her home in Toronto
I experienced one notable incident of violence while working at the fetish house. I was tied up and raped by my client, and subsequently left there for almost half an hour before I was found.
Amy Lebovitch

Firstly, the manager should have been inside the location. They should have allowed me to speak with the client first and then taken the money down, let them know that, you know, the person's okay. There should have been someone who would walk by maybe the hallway, you know, to make sure things are sounding okay.There should have been somebody within the house, if I was going to scream, they would hear me, right. They were outside, there was music, that's not proper business. I mean, it's not safe for any individual to work under those conditions.

JAR, Vol. 2, Tab 13, p. 164, para. 4 & Tab 14, p. 192, lines 14-23

Ronald Weitzer (Weitzer Transcript), Exhibit “G” “Prostitution and Trafficking in Nevada”; JAR, Vol. 26, Tab 59, p. 7470, Transcript of Cross-examination of Lauren Casey (Casey Transcript), Qs. 153-55; JAR, Vol. 22, Tab 53, p. 6433, Transcripts of Cross-examination of Dr. John Lowman (Lowman Transcripts) Vol. 2, Q. 1695 31 AGC Application Factum, Annex One, setting out Lowman’s incapacity to distinguish indoor from outdoor venues.

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Description of Venue and Experiences

Record Concordance

Worked on the street in Toronto but also went to clients’ homes which she felt was unsafe
L.B.

My boyfriend, who I now realized was my pimp would beat me up if I didn’t bring home enough money. I had lots of black eyes. He didn’t work and slept most of the day.

Exhibit Book, Vol. 1, Tab 9, p. 274, para. 7

Worked in a massage parlour or escort agency, in Toronto
I have been threatened, strangled, robbed, raped and terrified behind the doors of these in-call brothels. I knew every day or night that I was there working might be the last day of my life and that no one would come if I screamed. Screams in the house were frequent and no one ever got involved.
Exhibit Book, Vol. 1, Tab 8, p. 265, para. 17

H.C.

Worked in many cities on high track of street prostitution, for escort agencies, including a brothel where she took in-calls
I have spent 21 years engaged in prostitution, starting at the age of 15. For 14 years, I was controlled by my pimp who moved me about in the United States for 6 ½ years, and by whom I became pregnant several times. In my experience, it’s all dangerous.
Exhibit Book, Vol. 1, Tab 6, p. 231 & 237, paras. 2 and 22

T.D.

Worked on street, for escort agencies, in hotel rooms, from home in six cities across Canada
My experiences have taught me that indoor and outdoor locations have the same potential for violence. Johns can become violent at any moment, and it does not matter whether they arranged to have sex with you when they came cruising by on the street, responded to an ad, hired you as an escort or came into a bawdy house. There is always the possibility of violence, always. The entire sex trade is corrupt with violence, domestic abuse, organized crime, sex slavery and human trafficking, addiction, unresolved childhood issues, child exploitation, poverty and desperation, right to the core of its existence. It is not the laws which make this work dangerous, but the inherently violent, demeaning nature of the work itself.
Exhibit Book, Vol. 1, Tab 1, p. 20, para. 61 Exhibit Book, Vol. 1, Tab 1, p. 23, para. 68 Exhibit Book, Vol. 1, Tab 2, p. 126, lines 15-16

Natasha Falle

12

Description of Venue and Experiences

Record Concordance

Worked in escort, out-call, street, with a pager, in Vancouver
Over the course of nine or ten years as a prostitute I had paid sex with thousands of men, most of them total strangers.[…] I performed sex acts in apartments, houses, hotels and agencies, in cars and parking lots, and other places. Working in an agency can seem safe in some ways, but you’re still alone with the dates, and you have to be very careful not to get on the wrong side of whoever runs the place. I had pimps and drivers in my younger years who were supposed to look out for me but they wouldn’t interrupt a session even if they heard me screaming. Basically anywhere you’re alone with a john it is dangerous.

P.M.

Exhibit Book, Vol. 1, Tab 11, pp. 301-302, paras. 31 -33

Worked for escort agencies, on the street, took calls from an agency while on the street; ran an escort agency, all in Vancouver
One night, despite having done all of my checks and while the driver was waiting for her, one of the women was violently raped in a downtown hotel room. I realized that any one of us could have suffered the same fate, regardless of how alert and careful we are. I concluded that the problem was prostitution itself in that men had permission to think of us as lesser humans and treat us in whatever manner they pleased. We could not possibly be safe in that context, even if I could stop the worst of the physical violence, the rapes and the beatings.

D.S.

Exhibit Book, Vol. 1, Tab 4, p. 199, para. 38

Worked in bars, street and hotel rooms in Vancouver
There was always the element of danger. […] Rape was so commonplace; it seems like every woman’s experience. At first, I did my best to take safety precautions. I was simply trying to avoid being raped or stabbed or murdered. I tried to assess whether the trick would be violent with me. Any time I walked out of a room without having been physically assaulted I felt lucky.

J.S.

Exhibit Book, Vol. 1, Tab 7, p. 249, para. 23

Worked at parties, on the high track, in hotel rooms, in Edmonton.
Regardless of the location or the fact that my boyfriend or someone else was often in the room next door, I believe that anytime I was alone with a john I was in danger. While I was a prostitute I felt as though my soul was being systematically murdered.
Exhibit Book, Vol. 1, Tab 5, pp. 217 & 219, paras. 23 and 29

Dawn Hodgins

Worked indoors and on the street, in Vancouver K.C.
I was assaulted and sexually assaulted by johns. I did not think it is

Exhibit Book, Vol. 1, Tab 10, p. 285, para. 14

13

Description of Venue and Experiences possible to be a sex trade worker without being subjected to violence.

Record Concordance

b) 24.

Off-street prostitution is physically risky All parties and affiants agreed that the largest percentage of prostitution occurs

off-street, yet because of its hidden nature, much less is known about off-street prostitution. However, the police, experiential, and expert evidence was that prostitutes are physically at risk regardless of the venue of the initial encounter with the john or the location in which the act of prostitution takes place. The Applicants’ own experts acknowledged this,32 as did the court below.33 25. Canada’s experiential affiants (as made clear in the table above) provided graphic

illustrations of the physical risks faced by off-street prostitutes. H.C. felt it was safer outside, where she could choose her clients and be seen, than inside, but because she did not want anyone she knew to see her, she stayed indoors.34 26. Natasha Falle worked in a wide variety of venues, including high-end, street and

off-street. In her experience, the street was safer than indoors, as she could choose her clients.35 Regardless of location, she experienced significant violence from both pimps and johns, and observed that “Johns can become violent at any moment.”36

32 33

JAR, Vol. 31, Tab 65, p. 9109, Weitzer Transcript, Q. 465 Appeal Book, Tab 5, p. AB 53, Reasons of Himel J. at para. 116(b) and (c) 34 Exhibit Book, Vol. 1, Tab 8, pp. EB 264, EB 266, EB 269, H.C. Affidavit, paras. 14, 21 and 32 35 Exhibit Book, Vol. 1, Tab 1, p. EB 10, Falle Affidavit, para. 32 36 Exhibit Book, Vol. 1, Tab 1, p. EB 20, Falle Affidavit, para. 61

14

27.

Many of Canada’s police witnesses expressed the view, based on their

experiences investigating prostitution-related offences, that off-street prostitution is physically risky.37 Detective JoAnn McCartney noted that:38
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 who might otherwise be able to provide protection . . . common bawdy houses are commonly linked to the trafficking of women and children for the purpose of prostitution.

c) 28.

The harms of prostitution still occur in regimes that have decriminalized aspects of prostitution Prostitution presents significant risk of psychological and physical harm for

prostitutes and harms to communities, regardless of the regime in which it takes place. 29. In regimes that have decriminalized aspects of the practice of prostitution in order

to regulate it, a large percentage of prostitution continues to take place in the illegal, unregulated sector. In the Netherlands, more than half of all prostitution is probably occurring in the unlicensed sector;39 in Australia, the illegal sector appears to be much larger than the legal sector;40 in Nevada, legal prostitution comprises only about 10% of all prostitution in the state;41

JAR, Vol. 34, Tab 78, p. 9765, Morrissey Affidavit, para. 39; JAR, Vol. 35, Tab 83, p. 10250, Det. Const. Holm Affidavit, para. 27; JAR, Vol. 35, Tab 84, p. 10270, Det. Cowan Affidavit, para. 21; JAR, Vol. 35, Tab 85, pp. 10301 and 10304, Affidavit of Detective Sergeant Gene Bowers (Det. Sgt. Bowers Affidavit), paras. 45 and 51; JAR, Vol. 36, Tab 89, p. 10599, Transcript of Cross-examination of Corp. Sonia Joyal Transcript (Corp. Joyal Transcript), lines 2-6; JAR, Vol. 37, Tab 91, p. 10683, Det. Const. Dizon Affidavit, para. 44 38 JAR, Vol. 35, Tab 82, p. 10058, Det. McCartney Affidavit, para. 17; JAR, Vol. 35, Tab 86, p. 10393, Det. Const. Ramos Affidavit, para. 13 39 JAR, Vol. 47, Tab 110, p. 13521, Dr. van de Pol Affidavit, para. 56 40 JAR, Vol. 54, Tab 117, p. 15867, Transcript of Cross-examination of Dr. Mary Sullivan (M. Sullivan Transcript), Q. 375 41 JAR, Vol. 32, Tab 65G, p. 9271, Weitzer Transcript, Exhibit “G”: “Prostitution and Trafficking in Nevada”

37

15

there is evidence that decriminalizing prostitution gives rise to an illegal sector that is larger than the decriminalized sector.42 30. Within the regimes that have decriminalized aspects of prostitution, there is still a

substantial risk of harm in both the licensed and illegal sectors.43 Organized crime continues to be involved in prostitution in both the licensed and illegal sectors.44 In the licensed sector, there continues to be a significant number of women who are controlled by pimps and are working under some form of duress.45 Decriminalization does not change the risk of vulnerable women becoming exploited by opportunistic pimps.46 31. Decriminalization can lead to an increase in prostitution and its general

acceptance in society. Countries which have decriminalized prostitution have seen a growth in the prostitution industry and in the demand for prostitutes.47 5) Impact of impugned Criminal Code provisions on the risks of harm to prostitutes and communities 32. The Criminal Code provisions provide police with tools to reduce harms to

prostitutes and communities and to investigate serious crimes which are associated with prostitution. In investigating s. 213(1)(c) occurrences, police are able to speak to prostitutes and gain information about whether they are being exploited, and to obtain information about pimps,

JAR, Vol. 56, Tab 119H, pp. 16525-6, Raymond Affidavit, Exhibit “H”, JAR, Vol. 47, Tab 111D, p. 13853, Dr. van de Pol Affidavit, Exhibit “D”; JAR, Vol. 52, Tab 116, pp. 15099-100, Affidavit of Dr. Mary Louise Sullivan (M. Sullivan Affidavit), para. 45 43 JAR, Vol. 52, Tab 116, p. 15117, M. Sullivan Affidavit, para. 85 44 JAR, Vol. 40, Tab 102, pp. 11415-7, Poulin Affidavit, paras. 94-99 45 JAR, Vol. 47, Tab 110E, p. 13682, Dr. van de Pol Affidavit, Exhibit “E”, Report of Special Rapporteur (2007), para. 84 46 JAR, Vol. 35, Tab 82, pp. 10060-1, Det. McCartney Affidavit, paras. 24-26 47 See: JAR, Vol. 57, Tab 119O, pp. 16700-1, Raymond Affidavit, Exhibit “O”, p. 2; JAR, Vol. 40, Tab 102, p. 11417, Poulin Affidavit, para. 98

42

16 “bad dates” and organized crime;48 the s. 210 provisions enable the police to go into suspected bawdy houses where they often find other criminal activity;49 s. 212(1)(j) enables police to charge pimps and initiate investigations that often lead to other charges related to their victimization of prostitutes.50 33. Evidence from police witnesses51 and community affiants52 indicate that

enforcing these provisions does help to discourage or deter prostitution. Criminal charges and convictions send the message that this activity is not acceptable. Diversion programs assist prostitutes in exiting prostitution53 and deter johns from re-offending.54 Enforcement activities, such as john sweeps, provide communities with relief and an opportunity for police to identify potentially dangerous offenders.55 Prostitution-related investigations can provide the entry point for uncovering other serious crimes.56

Appeal Book, Tab 10, p. AB 189, Reasons for Decision of Rosenberg J. at para. 33; see JAR, Vol. Vol. 35, Tab 84, p. 10265-6, Det. Cowan Affidavit, para. 10 49 See: Appeal Book, Tab 10, pp. AB 193-4, Reasons for Decision of Rosenberg J. at para. 42-43, JAR, Vol. 34, Tab 78, p. 9766, Det. Morrissey Affidavit, para. 42; JAR, Vol. 34, Tab 81, p. 10012, Det. Sgt. Page Affidavit, para. 18; JAR, Vol. 35, Tab 82, p. 10058, Det. McCartney Affidavit, para. 17 50 See JAR, Vol. 34, Tab 81, pp. 10013-4, Det. Sgt. Page Affidavit, paras. 19-21; JAR, Vol. 35, Tab 85, p. 10304, Det. Sgt. Bowers Affidavit, para. 51 51 See JAR, Vol. 34, Tab 78, pp. 9763 and 9766, Det. Morrissey Affidavit, paras. 33 and 43-4; JAR, Vol. 35, Tab 84, pp. 10267, 10270-1, 10274, Det. Cowan Affidavit, paras. 13, 23, 28; JAR, Vol. 34, Tab 81, p. 10017, Det. Sgt. Page Affidavit, para. 30 52 See JAR, Vol. 39, Tab 99, pp. 11208, 11213, Parrott Affidavit, paras. 60, 71; JAR, Vol. 39, Tab 101, p. 11368, St. Aubin Affidavit, paras. 11-12; JAR, Vol. 39, Tab 100, p. 11341, Affidavit of Donna Cowan (D. Cowan Affidavit), para. 16 53 See JAR, Vol. 37, Tab 95, p. 10912, Affidavit of Dianna Gayle Bussey, para. 24; JAR, Vol. 35, Tab 82, pp. 10056-7, Det. McCartney Affidavit, paras. 11-13; Exhibit Book, Vol. 1, Tab 5, pp. EB 226-7, 228, Hodgins Affidavit, paras. 51-2 and 55; See JAR, Vol. 34, Tab 78, p. 9763, Det. Morrissey Affidavit, para. 31 54 JAR, Vol. 38, Tab 96, p. 10931, Quinn Affidavit, para. 20; JAR, Vol. 37, Tab 94, p. 10884, Weinberg Affidavit, para. 33; JAR, Vol. 34, Tab 78, p. 9764, Det. Morrissey Affidavit, paras. 35-6 55 JAR, Vol. 34, Tab 81, p. 10011, Det. Sgt. Page Affidavit, para. 15 56 JAR, Vol. 34, Tab 78, pp. 9761 and 9766, Det. Morrissey Affidavit, paras. 22 and 42; JAR, Vol. 34, Tab 81, p. 10012, Det. Sgt. Page Affidavit, para. 18

48

17

C. APPLICANTS’ EVIDENCE ON CAUSALITY AND THE RISKS OF HARM ASSOCIATED WITH PROSTITUTION 34. It was and it remains Canada’s position that the evidence that the Applicants

sought to rely upon, and in particular that of its expert evidence, was unreliable and did not establish causality between the impugned provisions and the dangers and risk of harms associated with prostitution. The Applicants acknowledged at the court below that the evidence is “fraught with methodological limitations” and the issue of the relationship of the law to the risks and harms flowing from prostitution has “eluded researchers for decades”.57 1) Evidence of Dr. John Lowman 35. The court below accurately described Dr. John Lowman as one of the Applicants’

key witnesses.58 In fact, the claim that the impugned provisions “materially contribute” to violence against prostitutes was anchored upon his evidence which was, in turn, extensively relied upon by the Applicants’ other experts.59 Dr. Lowman testified in his affidavit that the

57 58

Applicants’ Factum before Himel J. at para. 123 Appeal Book, Tab 5, p. AB 56, Himel J. at para. 129 59 JAR, Vol. 24, Tab 55C, p. 6880; Tab 55D, pp. 6888 and 6893, 6896-7, 6897, 6903 and 6916; Tab 55E, pp. 6495-6; Tab 55F, pp. 6956, 6960, 6963, 6964 and 6969, Tab 55H, p. 6996, and Tab 55J, p. 7058, Affidavit of Dr. Francis Shaver (Shaver Affidavit), Exhibits “C”, p. 6; “D”, pp. 5, 10, 13-4, 14, 20, and 34; “E”, pp. 17 and 18; “F”, p. 7, 11, 14, 15 and 19; “H”, pp. 18 and “J”, p.28; JAR, Vol. 25, Tab 56G, p. 7360 and 56J, p. 7411, Transcript to Cross-examination of Dr. Frances Shaver (Shaver Transcript), Exhibits “G”, p. 1 and “J”, p. 247; JAR, Vol. 13, 48B, pp. 3519, 3535 and 3552 and Vol. 14, Tab 48H, p. 3923, Affidavit of Dr. Cecelia Benoit (Benoit Affidavit), Exhibits “B”, pp. 35, 51 and 68 and “H”, p. 45; JAR, Vol. 14, Tab 49A, pp. 4081 and 4089; Tab 49B, pp. 4102, 4103, 4105 and 4112; Tab 49C, p. 4120, Transcripts to Cross-examination of Dr. Cecilia Benoit (Benoit Transcripts), Exhibits “A”, pp. 266 and 274; “B”, pp. 123, 124, 126 and 133; and “C”, p. 264; JAR, Vol. 11, Tab 42B, pp. 2788, 2790, 2792 and 2814, Affidavit of Dr. Gayle MacDonald (MacDonald Affidavit), Exhibit “B”, pp. 62-3, p. 80-1, p. 84-5 and 128-9; JAR, Vol. 12, Tab 45B, pp. 3140, 3141 and 3159 Affidavit of Dr. Eleanor Maticka-Tyndale (Maticka-Tyndale Affidavit), Exhibit “B”, pp. 13, 14 and 34; JAR, Vol. 12, Tab 46, p. 3276; Tab 46D, pp. 3318, 3322 and Tab 46E, p. 3348, Transcript of Cross-examination of Dr. Eleanor Maticka-Tyndale (Maticka-Tyndale Transcript), Q.378, line 23, Exhibit “D”, p. 149 & 153, Exhibit “E”, p. 6; JAR, Vol. 9, Tab 35C, p. 2227, Affidavit of Deborah Brock (Brock Affidavit), Exhibit “C”, p. 2; JAR, Vol. 30, Tab 64, p. 8532; Tab 64B, p. 8568 and Tab 64C, p. 8590, Affidavit of Dr. Ronald-Frans Weitzer (Weitzer Affidavit), para. 14, Exhibit “B”, p. 216, and “C”, p. 29; JAR, Vol. 32, Tab 65C, pp. 9196, 9200 and 9201, Weitzer Transcript, Exhibit “C”, pp. 91, 95 and 96; JAR, Vol. 28, Tab 61G, pp. 8185, 8188, Affidavit of Barbara Sullivan (B. Sullivan Affidavit), Exhibit “G”, pp. 5, 8 (All of the Applicants’ other experts rely on Dr. Lowman but for Drs. Brannigan and Leyton)

18

impugned “provisions force survival sex workers outside and into vulnerable areas” and “force prostitution to remain part of the illicit market”.60 36. The court below relied upon Dr. Lowman’s theories, which it cited extensively in In particular, the following findings explicitly relied upon Dr. Lowman’s

its judgment.61 theories:
• •

street-involved prostitution is more violent than prostitution that occurs in indoor venues;62 and the impugned provisions, and in particular s. 213(1)(c), force “survival sex workers” to work outdoors and in vulnerable areas, such as isolated streets and industrial areas (i.e. theory of “displacement”).63 The court below also relied upon the following in support of its conclusion that

37.

the impugned provisions “materially contribute” to risks faced by prostitutes:
• •

Dr. Lowman’s evidence that violence against prostitutes has increased as a result of the passage of the 1985 communication law;64 and the study by Dr. Lowman’s student, Tamara O’Doherty, appended to his affidavit. This study purports to demonstrate that prostitution is not inherently dangerous.65 Dr. Lowman adopted a broad view of the ability to draw causal inferences from

38.

qualitative data. He describes his chosen method as “triangulation”. In his cross-examination, Dr. Lowman explained “triangulation” in response to a question as to whether a researcher can generalize from a very small sample:66
… 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
JAR, Vol. 15, Tab 51, p. 4149, Lowman Affidavit, paras. 7 - 8 Appeal Book, Tab 5, pp. AB 56, 62, 63, 75, 101, 105, 113, 114, 116, 121-2, Reasons of Himel J. at paras. 129, 130, 161, 210, 298(c), 317, 318, 341, 342, 343, 358, 385 62 Appeal Book, Tab 5, pp. AB 105 and AB 129-30, Himel J. cites Dr. Lowman on this point at para. 317, and makes her own explicit finding on this at para. 421. 63 Appeal Book, Tab 5, pp. AB 56, 113, Himel J. cites Dr. Lowman on this point at paras. 130, 341(a). She makes her own finding at: Appeal Book, Tab 5, pp. AB 121-2, Reasons of Himel J. at paras. 385 – 386 64 Appeal Book, Tab 5, pp. AB 113 and 114, Himel J. cites Dr. Lowman on this point at paras. 341, 343. 65 Appeal Book, Tab 5, pp. AB 105-6, Reasons of Himel J. at para. 318 66 JAR, Vol. 22, Tab. 53, p. 6356, Lowman Transcripts, Vol. 2, Q 1475, lines 15-23
61 60

19

look down a kaleidoscope, we see a rich array of colours. The job of the qualitative researcher triangulating research methods is to discern the pattern rather than merely just the colours.

39.

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.67 40. At the onset of his cross-examination, Dr. Lowman proclaimed his unhappiness

with the content of his affidavit.68 He admitted that his affidavit did not always reflect his expert opinion.69 Dr. Lowman later explained that he “lapsed” in his affidavit in respect of being careful about his conclusions;70 that he used “careless” language which he would be “much more careful about” if he could rewrite it;71 that his affidavit was “poorly written”;72 that he had a “gross misunderstanding”73 of the process, that some of his conclusions were an “example of poorly reasoned argument”.74 He explained that many of these errors were due to the process by which drafts were assembled by students working with counsel for the Applicants.75 41. Central to Dr. Lowman’s theories was an attempt to link the passing of the 1985

communication law with an increase in the rate of violence and murder of street prostitutes in
67 68

JAR, Vol. 20, Tab. 52, pp. 5732 - 5733, Supplementary Lowman Affidavit, Vol. 1, paras. 25-26 JAR, Vol. 21, Tab 53, pp. 5896 and 5900-5901, Lowman Transcripts, lines 19-22 and Q. 27-29 69 JAR, Vol. 21, Tab 53, p. 5901, Lowman Transcripts, Vol.1, Q. 29 70 JAR, Vol. 21, Tab 53, p. 5932, Lowman Transcripts, Vol.1, Q.130 71 JAR, Vol. 21, Tab 53, pp. 6028 and 5899, Lowman Transcripts, Vol. 1, Qs. 455 and 23; JAR, Vol. 21, Tab 53, p. 6168, Lowman Transcripts, Vol.1, Q. 919 72 JAR, Vol. 21, Tab 53, p. 6134, Lowman Transcripts, Vol.1, Q.807 73 JAR, Vol. 21, Tab 53, p. 6003; Vol. 22, pp. 6329 – 6330, 6366, 6409, Lowman Transcripts, Vol. 1 and 2, Q.377 and Vol. 2, Q.1398, Q.1495 and Q.1622 74 JAR, Vol. 22, Tab 53, p. 6409, Lowman Transcripts, Vol. 2, Q.1622, lines 19-20

20

British Columbia.

Dr. Melchers testified on behalf of Canada as an expert in research

methodology.76 Dr. Melchers, an expert in research methodology, assessed Dr. Lowman’s empirical evidence linking the impugned provisions to the murder and endangerment of prostitutes and concluded it was speculative and offered “no empirical testing of hypotheses or valid and reliable evidence in support of its conclusions”.77 The court below made no adverse finding with respect to Dr. Melchers’ evidence. Dr. Melchers further stated: 78
…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. [Emphasis added]

2) Evidence of the Applicants’ experts other than Dr. John Lowman 42. The Applicants’ other main experts were Drs. Shaver, Benoit, and Maticka-

Tyndale.79 They testified to the following: • they agree with, and all rely upon, the theories of Dr. Lowman in respect of a causal connection between the impugned provisions and the endangerment of prostitutes;80

JAR, Vol. 21, Tab 53, pp. 5898-9, p. 5901 and 6083, Lowman Transcripts, Vol.1, Qs. 22, 30, 627, 628; see also, JAR, Vol. 23, Tab 54, p. 6797, Answer to Undertakings of John Lowman, UT #8 76 JAR, Vol. 61, Tab 122, pp. 17775-76, Affidavit of Dr. Ronald-Frans Melchers (Melchers Affidavit), paras. 5-9; JAR, Vol. 61, Tab 123, pp. 17827-28, Supplementary Affidavit of Dr. Ronald-Frans Melchers Affidavit (Suppl. Melchers Affidavit), paras. 4-7 77 JAR, Vol. 61, Tab 122, p. 17789, Melchers Affidavit, paras. 29-30 78 JAR, Vol. 61, Tab 122, p. 17774-5, Melchers Affidavit, para. 4 79 JAR, Vol. 24, Tab 55, Shaver Affidavit; JAR, Vol. 13, Tab 48, Benoit Affidavit; JAR, Vol. 12, Tab 45, Maticka-Tyndale Affidavit 80 JAR, Vol. 24, Tab 55C, p. 6880; Tab 55D, pp. 6888 and 6893, 6896-7, 6897, 6903 and 6916; Tab 55E, pp. 6495-6; Tab 55F, pp. 6956, 6960, 6963, 6964 and 6969, Tab 55H, p. 6996, and Tab 55J, p. 7058, Affidavit of Dr. Francis Shaver (Shaver Affidavit), Exhibits “C”, p. 6; “D”, pp. 5, 10, 13-4, 14, 20, and 34; “E”, pp. 17 and 18; “F”, p. 7, 11, 14, 15 and 19; “H”, pp. 18 and “J”, p.28; JAR, Vol. 25, Tab 56G, p. 7360 and 56J, p. 7411, Transcript to Cross-examination of Dr. Frances Shaver (Shaver Transcript), Exhibits “G”, p. 1 and “J”, p. 247; JAR, Vol. 13, 48B, pp. 3519, 3535 and 3552 and Vol. 14, Tab 48H, p. 3923, Affidavit of Dr. Cecelia Benoit (Benoit Affidavit), Exhibits “B”, pp. 35, 51 and 68 and “H”, p. 45; JAR, Vol. 14, Tab 49A, pp. 4081 and 4089; Tab 49B, pp. 4102, 4103, 4105 and 4112; Tab 49C, p. 4120, Transcripts to Cross-examination of Dr. Cecilia Benoit (Benoit Transcripts), Exhibits “A”, pp. 266 and 274; “B”, pp. 123, 124, 126 and 133; and “C”, p. 264; JAR, Vol. 11, Tab 42B, pp. 2788, 2790, 2792 and 2814, Affidavit of Dr. Gayle MacDonald (MacDonald Affidavit),

75

21 •

they acknowledge that the impugned provisions are not the only cause of the endangerment of prostitutes. Other causes include the “pre-existing vulnerabilities” of those engaged in prostitution due to drugs, pimps, being abused as a child, etc., or the quality of third party management;81 they acknowledge that off-street prostitution can constitute up to 80-90% of the sector;82 and they agree that prostitution is dangerous, but take the position that it can be made less dangerous.83 They disagree as to whether decriminalization alone suffices to make prostitution

• • 43.

less dangerous. Some take the position that decriminalization suffices. Others take the position that it “must be complemented or accompanied by a rational regulatory regime”.84 44. A more detailed assessment of the reliability of Dr. Lowman’s causal

conclusions, as well as the evidence of the other Applicants’ experts on the relationship between the impugned provisions and the dangers and risks of harm associated with prostitution is set out in the Appendix to this factum. D. REVIEW OF THE DECISION OF THE COURT BELOW 1) Findings of the court below on Canada’s evidence 45. • The court below made the following primary findings on Canada’s evidence: with respect to the evidence of current and former prostitutes,85 the court briefly concluded that while “this evidence provided helpful background information, it is clear

Exhibit “B”, pp. 62-3, p. 80-1, p. 84-5 and 128-9; JAR, Vol. 12, Tab 45B, pp. 3140, 3141 and 3159 Affidavit of Dr. Eleanor Maticka-Tyndale (Maticka-Tyndale Affidavit), Exhibit “B”, pp. 13, 14 and 34; JAR, Vol. 12, Tab 46, p. 3276; Tab 46D, pp. 3318, 3322 and Tab 46E, p. 3348, Transcript of Cross-examination of Dr. Eleanor Maticka-Tyndale (Maticka-Tyndale Transcript), Q.378, line 23, Exhibit “D”, p. 149 & 153, Exhibit “E”, p. 6 81 JAR, Vol. 24, Tab 55, pp. 6815-16, Shaver Affidavit, para. 28; JAR, Vol. 25, Tab 56I, pp 7396-8, Shaver Transcript, Exhibit “9”, pp. 311-2; JAR, Vol. 12, Tab 45, p. 3093, Maticka-Tyndale Affidavit, para. 5; JAR, Vol. 12, Tab 46, p. 3256, Maticka-Tyndale Transcript, Q. 305 82 JAR, Vol. 24, Tab 55, p. 6809, Shaver Affidavit, para. 8; JAR, Vol. 13, Tab 48B, p. 3474, Benoit Affidavit, Exhibit “B”; JAR, Vol. 12, Tab 45B, p. 3132, Maticka-Tyndale Affidavit, Exhibit “B”, P. 5 83 JAR, Vol. 24, Tab 55, p. 6809 and 6814, Shaver Affidavit, paras. 7 and 23; JAR, Vol. 13, Tab 48, pp. 3423-24, Benoit Affidavit, paras. 22-23; JAR, Vol. 12, Tab 45, pp. 3095-6, Maticka-Tyndale Affidavit, paras. 14-17 84 JAR, Vol. 13, Tab 48, p. 3424, Benoit Affidavit, para. 23; JAR, Vol. 14, Tab 49, pp. 4043-7, Benoit Transcript, Q. 439-53; in contrast to the position of Dr. Shaver; JAR, Vol. 25, Tab 56, p. 7203, Shaver Transcript, Q. 78-80 85 This includes the three Applicants themselves, seven additional experiential affiants for the Applicants, and nine experiential affiants for Canada. Refer to chart above and paras. 23-27 of this factum.

22

that there is no one person who can be said to be representative of prostitutes in Canada; the affiants are an extremely diverse group of people.”86 There was no further apparent consideration of this evidence in its findings; • the evidence of the nine police officers from across Canada was summarized in one page,87 and referred to in para. 497. In its findings, the Court referred only to their evidence relating to enforcement of s. 213(1)(c). It did not refer to their opinions about prostitution and its impact on communities; the evidence of three community affiants who attested to the impact of prostitution in their neighbourhoods were briefly referred to as “three advocates” concerned about the negative effects of street prostitution.88 There was no further apparent consideration of this evidence in its findings; and the evidence of Canada’s international experts, Drs. van de Pol, Pratt, Raymond, Sullivan and Farley was summarized with a single paragraph89 and a finding made that: “many of those proffered as experts […] had entered the realm of advocacy”. No detailed analysis of their evidence is engaged in.





2) Factual and legal findings of the court below on the key issues in dispute 46. The court below found that the experts agreed on the following propositions: (a)

street prostitution is a dangerous activity; (b) all prostitution, regardless of venue, carries a risk of violence; (c) prostitution conducted in indoor venues can be dangerous; and (d) there are multiple factors responsible for the violence faced by prostitutes.90 47. The court below found the key matters in dispute amongst the experts were: (a)

whether indoor prostitution is, or can be made, less dangerous than street prostitution; (b) whether indoor prostitutes are in a better position to prevent harm to themselves than street

Appeal Book, Tab 5, pp. AB 47-8, Reasons of Himel J. at para. 88 Appeal Book, Tab 5, pp. AB 48-9, Reasons of Himel J. at paras. 89 - 94 88 Appeal Book, Tab 5, p. AB 49, Reasons of Himel J. at para. 96 89 Appeal Book, Tab 5, p. AB 69, Reasons of Himel J. at para. 182. The group dismissed in paragraph 182 also includes two of the Applicants’ experts, Drs. Barbara Sullivan and Ron Weitzer. The court below did go on to make explicit findings of advocacy in respect of Drs. Raymond, Farley and Poulin, See Appeal Book, Tab 5, pp. AB 115-6, Reasons of Himel J. at paras. 352 – 358 90 Appeal Book, Tab 5, pp. AB 53, Reasons of Himel J. at para. 116
87

86

23

prostitutes; and (c) whether the impugned provisions materially contribute to the risk of harm suffered by prostitutes.91 48. The court below summarized large portions of the expert evidence and

government reports and found that “despite the multiple problems with the expert evidence…there is sufficient evidence from other experts and government reports” to conclude on a balance of probabilities that the Applicants met their burden to prove that the impugned provisions breach their security of person.92 The court below did not particularize the evidence it was relying on when setting out its own conclusions. 49. The factual findings of the court below, and its legal implications, were

summarized in paras. 421 – 423 of its judgment. It found that prostitutes, particularly those who work on the street, are at a high risk of being the victims of physical violence, but that working indoors, using drivers, receptionists and bodyguards, and taking other safety measures can increase safety. 50. The court below concluded that the bawdy house provisions in s. 210 can place

prostitutes in danger by preventing them from working indoors; the living on the avails provision in s. 212(1)(j) makes prostitutes more susceptible to violence by preventing them from hiring bodyguards or drivers; and the communicating provision in s. 213(1)(c) increases the vulnerability of street prostitutes by preventing them from screening customers. 51. The court below also concluded that, while the Supreme Court’s 1990

Prostitution Reference was binding, it was “not foreclosed from hearing the challenge based on s. 7…as the issues argued in this case are different than those argued in the Prostitution

91 92

Appeal Book, Tab 5, p. AB 53, Reasons of Himel J. at para. 117 Appeal Book, Tab 5, p. AB 116, Reasons of Himel J. at para. 359

24

Reference…[and]… the principles at issue in this were not clearly articulated as such when the reference was heard”.93 It also found that it could reconsider the Supreme Court’s finding upholding s. 213(1)(c) on the grounds that, while it violated s. 2(b), it could be saved on s. 1:94
the s. 1 analysis conducted in the Prostitution Reference ought to be revisited given the breadth of evidence that has been gathered over the course of the intervening twenty years…[and] …it may be that the social, political and economic assumptions underlying the Prostitution Reference are no longer valid today. Indeed several western democracies have made legal reforms decriminalizing prostitution to varying degrees. As well the type of expression at issue in this case is different from that considered in the Prostitution Reference.

52.

The court below further distinguished the Prostitution Reference on the basis that

the evidence presented:95
goes well beyond conceptualizing street prostitution as a simple exercise of economic liberty. Evidence commissioned and generated by the Canadian government over the last two decades has repeatedly found that individuals engaging in street prostitution are, with some exceptions, marginalized people who are at high risk of being victims of violent crime. Much of this evidence was not before the Supreme Court in 1990.

53. • •

Based on these findings, the court below reached the following legal conclusions: there was a sufficient causal connection between the impugned provisions and the harms to prostitutes; these provisions increase the risk of harms and are not in accordance with the principles of fundamental justice and therefore violate their s. 7 Charter right to security of the person and cannot be saved by s. 1; and s. 213(1)(c) also violates their s. 2(b) right and cannot be saved by s. 1.



PART III – POINTS IN ISSUE
54. • The issues in this appeal are: Did the court below err in failing to follow the Supreme Court’s ruling in the 1990 Prostitution Reference?

93 94

Appeal Book, Tab 5, p. AB 45, Reasons of Himel J. at para. 75 Appeal Book, Tab 5, pp. AB 45 and AB 46-7, Reasons of Himel J. at paras. 76 and 83 95 Appeal Book, Tab 5, p. AB 138, Reasons of Himel J. at para. 458

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