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

Page: 72immoral, it is also a fact that many types of conductwhich are subject to widespread disapproval andallegations of immorality have not been criminalized.Indeed, one can think of a number of reasons whyselling sex has not been made a criminal offence....Whatever the reasons may be, the persistent resistanceto outright criminalization of the act of prostitutioncannot be treated as inconsequential.…[T]he legality of prostitution must be recognized in anys. 7 analysis and must be respected regardless of one'spersonal views on the subject. As long as the act ofselling sex is lawful it seems to me that this Courtcannot impute to it the collective disapprobationreserved for criminal offences. We cannot treat as acrime that which the legislature has deliberatelyrefrained from making a crime. [Emphasis added.][167] One can see a similar, although less direct, approach in the majorityreasons of Dickson C.J. (La Forest and Sopinka JJ. concurring), at pp. 1137-1138 of the Prostitution Reference:In making a choice to enact s. 195.1(1)(c) [nows. 213(1)(c)] as it now reads, Parliament had to try tobalance its decision to criminalize the nuisance aspectsof street soliciting and its desire to take into account thepolicy arguments regarding the effects of criminalizationof any aspect of prostitution. [Emphasis added.][168] As we explained above, Lamer J. writing for himself in the ProstitutionReference stated, at p. 1191, that, although prostitution itself is not a crime inCanada, the laws that Parliament has passed to target prostitution indirectly area clear indication that “our legislators are indeed aiming at eradicating thepractice.” No other member of the Supreme Court endorsed this view.