If I understand the question correctly, you have to recall that most of the provisions that were challenged in Bedford, leaving the pimping provision aside, which I think has a slightly different analysis to it, applied to both buyers and sellers, if I can put it that way. One of the arguments that I made to the court was that we ought to look at those actors separately in looking at the effects of this provision. The court chose not to do that. Of course, the challenge was brought by three women who either were in prostitution or formerly in prostitution and now wanted to operate prostitution businesses and profit from the prostitution of others. The focus was very much on liberty and security of the person with respect to those women.
If we change the analysis and say that we now have a distinct offence here that criminalizes the purchaser—someone is charged under that offence—it's going to be that buyer whose constitutional rights are at issue. We may have a situation in which women come forward and say, “Well, we want to bring some kind of a challenge that the criminalization of him violates our rights”. It's certainly a step removed from the way that the challenge was constructed in Bedford. There's no “security of the person” interest for the buyer. His security is not at issue. His liberty is at issue, in the sense that he's being criminalized—that's true of all criminal legislation—but that's a far weaker interest than a “security of the person” interest. You're balancing that against much clearer and better objectives.
One of the things that the Supreme Court rejected was an argument by the crown, particularly the Ontario crown, that we ought to kind of infuse concerns of dignity and equality into the objectives of the old laws. The court said, “No, that's shifting the purpose; we're not going to do that. If those objectives had been there, that's a different kind of analysis.” That was certainly quite influential, and I think very present, in the Ontario Court of Appeal's decision as well.
Those are the kinds of factors that I think do change the analysis. My concern is that if we retain the provision that criminalizes women on the street when they're in places where young people are likely to be present, it undermines the argument you're going to make about the buyers, that we consider this to be exploitation, to be discrimination. We're focusing on the actor who's responsible for that discrimination and exploitation.
I don't think that requires proving that 100% of women in prostitution are beset with every possible inequality we can imagine and that they started as young people. Really, it's an impossible task. It's ultimately fruitless. The question is what the legislation is doing for those who make up that supply, and why is that supply drawn so disproportionately from racialized women, aboriginal women, women with histories of state care and sexual abuse? It doesn't have to be exclusively...in order for that argument to be an important one in the constitutional analysis.