Judge Wayne Gorman has an interesting observation:

In Canada (Attorney General) v. Bedford, 2013 SCC 72, December 20, 2013, the Supreme Court of Canada declared the prostitution-related provisions found in sections 210, 212(1)(j) and 213(1)(c) of the Criminal Code of Canada to be inconsistent with the Canadian Charter of Rights and Freedoms and hence void.  In addition, the Court made a number of comments on the role of stare decisis.

In 1990, the Supreme Court of Canada rendered an advisory opinion in the Prostitution Reference, which upheld the constitutionality of the prohibitions on bawdy-houses and communicating — two of the three provisions challenged in this case.   The question became: was it open to the application judge to consider the arguments raised?

The Supreme Court held, at paragraphs 42 and 44, that “a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue. Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate…the threshold for revisiting a matter is not an easy one to reach. In my view, as discussed above, this threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence. This balances the need for finality and stability with the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role.”

The Supreme Court concluded (at paragraph 45):

It follows that the application judge in this case was entitled to rule on whether the laws in question violated the security of the person interests under s. 7 of the Charter. In the Prostitution Reference, the majority decision was based on the s. 7 physical liberty interest alone. Only Lamer J., writing for himself, touched on security of the person — and then, only in the context of economic interests. Contrary to the submission of the Attorney General of Canada, whether the s. 7 interest at issue is economic liberty or security of the person is not “a distinction without a difference” (A.F., at para. 94). The rights protected by s. 7 are “independent interests, each of which must be given independent significance by the Court” (R. v. Morgentaler, [1988] 1 S.C.R. 30, at p. 52). Furthermore, the principles of fundamental justice considered in the Prostitution Reference dealt with vagueness and the permissibility of indirect criminalization. The principles raised in this case — arbitrariness, overbreadth, and gross disproportionality — have, to a large extent, developed only in the last 20 years.”