Canada (Attorney General) v. Bedford, 2012 ONCA ... - York University

Page: 50worse. Any real increase in that kind of risk must impair the security of theperson: see Chaoulli, at para. 123, per McLachlin C.J., for the majority.[112] The connection between the legislation and the security of the person ofprostitutes is made clearer by a hypothetical that exaggerates, but does notdistort, the legal reality currently faced by prostitutes on the facts as found by theapplication judge. Suppose Parliament enacted a provision declaring that theself-defence provisions in the Criminal Code were not applicable to anyoneassaulted while engaged in prostitution. Prostitutes under attack or apprehendingan attack from a customer would have a choice. They could defend themselvesand face prosecution for assaulting their attacker or submit and risk seriouspersonal injury. No one would suggest that a law that placed prostitutes in thatposition did not expose them to added risk of physical harm and thereby interferewith their security of the person.It would be no answer to assert that theassaults were perpetrated by third parties who were not state actors.[113] On the facts as found by the application judge, the reality prostitutes faceunder the present Criminal Code regime is analogous to, albeit in somecircumstances less dangerous than, the self-defence hypothetical. While thechallenged Criminal Code provisions do not exclude prostitutes from the selfdefenceprovisions, they do criminalize obvious and specific steps that prostitutescould take to protect themselves while engaged in prostitution.