O’REGAN J and SACHS J
[100] Because unlawful carnal intercourse is defined as carnal intercourse other than between
husband and wife, any house or residence where people who are not husband and wife may go to
have sexual intercourse could, technically speaking, be considered to be a brothel. If the
definition were to be read in this fashion for the purposes of section 2, 3(b) and 3(c), the
provisions would be overbroad and would constitute a clear infringement of rights of human
dignity, freedom and privacy.
[101] For the reasons given earlier in this judgment,54 however, it is our view that sections 2,
3(b) and (c) must be read to regulate only commercial sex. The provisions are, like section
20(1)(aA), reasonably capable of being read to regulate commercial sex only. Subsections 3(b)
and (c) in effect render criminally liable a person who“manages” a brothel, or a person “who
receives . . . moneys . . . taken in a brothel”. Both these provisions suggest that a brothel is a
business or commercial enterprise whose business is concerned with sexual intercourse. In our
view, because the subsections point to the business aspects of a brothel, they are capable of being
read restrictively so as to criminalise only those engaged in managing or receiving money from
brothels, being business premises for commercial sex. Section 2, however, is less clearly
regulating the operation of a business when it speaks of “keeping a brothel”. However, once
again, we think it is reasonably capable of being read to mean keeping a brothel for the purposes
of commercial sex and should be construed in that narrow fashion to avoid the manifest
unconstitutionality which would result should it be construed to prohibit any person who “keeps”
54
See para 99 above.
67
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