As most of you know, I really am a lawyer. Questions about the legality of some aspects of the hobby are often discussed here and I have often participated in them from my knowledge of general principles of the criminal law.
As a matter of my own curiosity, I decided to do some thorough legal research on the question of HJ’s and PM’s at massage parlours and holistic clinics.
Both the Supreme Court of Canada and the Court of Appeal of Ontario have decided several cases (2 or 3 from Quebec and 1 from Manitoba) in recent years that involve the validity and meaning of ss. 197(1) and 210 of the Criminal Code which read as follows:
197(1)
"common bawdy-house" means a place that is
(a) kept or occupied, or
(b) resorted to by one or more persons
for the purpose of prostitution or the practice of acts of indecency.
210(1)
Every one who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
The basic question, then, is whether or not either HJ’s or PM’s are either acts of prostitution or acts of indecency. Nothing of what follows should be considered or taken as legal advice in relation to any particular case or person. What follows is only my personal opinion based on the recent cases, as I read them, for the purposes of our discussions, here. Each specific case depends on its own specific facts.
Prostitution is not defined in the Criminal Code. Generally, it means sexual intercourse – whether genital or oral (in case Clinton is reading this!) – in exchange for money.
But, as stated by the Court of Appeal:
“...it has been accepted for many years that prostitution consists of lewd acts for payment for the gratification of the purchaser.�
While it is clear that HJ’s and PM’s are not prostitution in the sense of sexual intercourse, the question still remains as to whether or not they are lewd acts for payment for the gratification of the purchaser.
Lewd acts is not defined in the Code or by any other case I have been able to find in Canada. Dictionaries define lewd as gross indecency; indecent; obscene; salacious; unchaste; licentious...
Whether an act is indecent, according to the Supreme Court of Canada, turns on the standards of tolerance in the community for the specific act:
“The courts must determine as best they can what the community would tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure. Harm in this context means that it predisposes persons to act in an anti-social manner, in other words, a manner which society formally recognizes as incompatible with its proper functioning. The stronger the inference of a risk of harm, the lesser the likelihood of tolerance.�
It seems to me that the test for lewdness and the test for indecency or obscenity are one and the same. The test of obscenity was long ago determined by the Supreme Court of Canada to be based on the standards of tolerance in the community.
The question a judge must decide in determining these questions in any particular case has been framed by the Court of Appeal in this way:
“The issue... [is] ...whether the activities... were primarily sexual in nature."
(Emphasis added by me).
In the most recent case in the Court of Appeal specifically involving a body rub parlour, the Court of Appeal said:
“ ...there was evidence that on each occasion that a plainclothes officer attended for a massage one of the respondents offered to perform or attempted to perform acts of masturbation upon him. It would be open to a trier of fact to find that the masturbation was part and parcel of the body rub. A trier of fact could also find that these were lewd acts for payment for the sexual gratification of the customers and hence acts of prostitution.�
Are you still with me?
(continued...)
As a matter of my own curiosity, I decided to do some thorough legal research on the question of HJ’s and PM’s at massage parlours and holistic clinics.
Both the Supreme Court of Canada and the Court of Appeal of Ontario have decided several cases (2 or 3 from Quebec and 1 from Manitoba) in recent years that involve the validity and meaning of ss. 197(1) and 210 of the Criminal Code which read as follows:
197(1)
"common bawdy-house" means a place that is
(a) kept or occupied, or
(b) resorted to by one or more persons
for the purpose of prostitution or the practice of acts of indecency.
210(1)
Every one who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
The basic question, then, is whether or not either HJ’s or PM’s are either acts of prostitution or acts of indecency. Nothing of what follows should be considered or taken as legal advice in relation to any particular case or person. What follows is only my personal opinion based on the recent cases, as I read them, for the purposes of our discussions, here. Each specific case depends on its own specific facts.
Prostitution is not defined in the Criminal Code. Generally, it means sexual intercourse – whether genital or oral (in case Clinton is reading this!) – in exchange for money.
But, as stated by the Court of Appeal:
“...it has been accepted for many years that prostitution consists of lewd acts for payment for the gratification of the purchaser.�
While it is clear that HJ’s and PM’s are not prostitution in the sense of sexual intercourse, the question still remains as to whether or not they are lewd acts for payment for the gratification of the purchaser.
Lewd acts is not defined in the Code or by any other case I have been able to find in Canada. Dictionaries define lewd as gross indecency; indecent; obscene; salacious; unchaste; licentious...
Whether an act is indecent, according to the Supreme Court of Canada, turns on the standards of tolerance in the community for the specific act:
“The courts must determine as best they can what the community would tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure. Harm in this context means that it predisposes persons to act in an anti-social manner, in other words, a manner which society formally recognizes as incompatible with its proper functioning. The stronger the inference of a risk of harm, the lesser the likelihood of tolerance.�
It seems to me that the test for lewdness and the test for indecency or obscenity are one and the same. The test of obscenity was long ago determined by the Supreme Court of Canada to be based on the standards of tolerance in the community.
The question a judge must decide in determining these questions in any particular case has been framed by the Court of Appeal in this way:
“The issue... [is] ...whether the activities... were primarily sexual in nature."
(Emphasis added by me).
In the most recent case in the Court of Appeal specifically involving a body rub parlour, the Court of Appeal said:
“ ...there was evidence that on each occasion that a plainclothes officer attended for a massage one of the respondents offered to perform or attempted to perform acts of masturbation upon him. It would be open to a trier of fact to find that the masturbation was part and parcel of the body rub. A trier of fact could also find that these were lewd acts for payment for the sexual gratification of the customers and hence acts of prostitution.�
Are you still with me?
(continued...)
