Most recent articles on prostitution related laws, opinions, comments

[Siocnarf]

...unlike before it does provide the option for sex workers to come forward against their pimps or bad dates/violent clients as it does not criminalize sex workers anymore.

With previous laws, police could use threat of prosecution to obtain testimonies. Now they can't. With previous laws it was not a crime to be a prostitute. You could go to the police and make accusations against a pimp without incriminating yourself. Police could only arrest you while you were in the act of working on the street or incall. I think it's not always the fear of arrest, but the police mentality and the impression that they won't be treated like real citizens that prevent them from going to the police.

Even if they are not criminalized, workers do not trust the police. In Sweden to get any help, a prostitute has to quit the job. If people learn that you're a prostitute, your life is pretty much over unless you make a show of quitting. You will be evicted, lose your kids, be expelled from college and lose any other regular job you may have. If they are illegal immigrants they are automatically deported.

 

[Siocnarf]

In France illegal foreign prostitutes are offered a permit to stay in the country if they report their pimp.

That's true. But the problems is many don't have a pimp, and even then they cannot continue working as prostitutes without losing their permit. Many immigrant prostitutes cannot find any other job and it is a hopeless situation. It's a way for the government to pretend to be ''fair'' while blaming her when she is caught again and deported.

 

[wilbur]

With previous laws, police could use threat of prosecution to obtain testimonies. Now they can't. With previous laws it was not a crime to be a prostitute. You could go to the police and make accusations against a pimp without incriminating yourself. Police could only arrest you while you were in the act of working on the street or incall. I think it's not always the fear of arrest, but the police mentality and the impression that they won't be treated like real citizens that prevent them from going to the police.

Even if they are not criminalized, workers do not trust the police. In Sweden to get any help, a prostitute has to quit the job. If people learn that you're a prostitute, your life is pretty much over unless you make a show of quitting. You will be evicted, lose your kids, be expelled from college and lose any other regular job you may have. If they are illegal immigrants they are automatically deported.

The level of enforcement and harassment will depend on the police force and the provincial attorney general. The law is almost certain to be unequally applied across Canada.

There is every possibility that some police forces will harass sex-workers. Notice that the Bill makes all sex-work illegal, but that sex-workers get immunity from prosecution. A detention or arrest by police is not prosecution. So I expect that some of the more aggressive police forces out there will arrest prostitutes in order to proceed to take them to the station and book them, and perform strip searches in order to look for drugs, as well as evidence that will be used to convict their clients (condoms). They will then be entered into the police charge database for future identification and location. After that, they will be released as they cannot be prosecuted. In order to avoid harassment of sex-workers, the Bill should have instead made sex-workers immune to arrest and detention.

 

[ericladd83]

Will Ontario or Quebec not enact this law?
My understanding is that even after this bill passes, whether the province will accept it or not depends on its governor.
As liberal states, both states will reject it?
That is what I heard from one escort.

The level of enforcement and harassment will depend on the police force and the provincial attorney general. The law is almost certain to be unequally applied across Canada.

There is every possibility that some police forces will harass sex-workers. Notice that the Bill makes all sex-work illegal, but that sex-workers get immunity from prosecution. A detention or arrest by police is not prosecution. So I expect that some of the more aggressive police forces out there will arrest prostitutes in order to proceed to take them to the station and book them, and perform strip searches in order to look for drugs, as well as evidence that will be used to convict their clients (condoms). They will then be entered into the police charge database for future identification and location. After that, they will be released as they cannot be prosecuted. In order to avoid harassment of sex-workers, the Bill should have instead made sex-workers immune to arrest and detention.

 

[DigitallyYours]

The level of enforcement and harassment will depend on the police force and the provincial attorney general. The law is almost certain to be unequally applied across Canada.

There is every possibility that some police forces will harass sex-workers. Notice that the Bill makes all sex-work illegal, but that sex-workers get immunity from prosecution. A detention or arrest by police is not prosecution. So I expect that some of the more aggressive police forces out there will arrest prostitutes in order to proceed to take them to the station and book them, and perform strip searches in order to look for drugs, as well as evidence that will be used to convict their clients (condoms). They will then be entered into the police charge database for future identification and location. After that, they will be released as they cannot be prosecuted. In order to avoid harassment of sex-workers, the Bill should have instead made sex-workers immune to arrest and detention.

No.

The Charter guarantees everyone the right to know on arrest the reason for the arrest. You can't arrest someone without reason, and if there is no law broken, there is no reason for the arrest.

 

[DigitallyYours]

Will Ontario or Quebec not enact this law?
My understanding is that even after this bill passes, whether the province will accept it or not depends on its governor.
As liberal states, both states will reject it?
That is what I heard from one escort.

It will be the law of the land across Canada. It must be "accepted" in every province. The manner of enforcement will be up to the police (who charge people) and the Crown (who decide whether to prosecute the charges).

 

[wilbur]

No.

The Charter guarantees everyone the right to know on arrest the reason for the arrest. You can't arrest someone without reason, and if there is no law broken, there is no reason for the arrest.

The police will tell them the reason for arrest:

"286.2 (1) Everyone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(1), is guilty of an indictable offence ...."

The Bill recognises that a person may be guilty of obtaining a consideration for their own services, but it exempts that person from prosecution:

"286.5 (1) No person shall be prosecuted for

(a) an offence under section 286.2 if the benefit is derived from the provision of their own sexual services "

MacKay has confirmed that selling sex will be illegal, but sex-workers will be exempt from prosecution..... and he didn't say anything about detention and arrest. An arrest is not a prosecution. The Crown Prosecutor decides whether a person is prosecuted (goes to court) or not, not the police (except in BC, IIRC). MacKay has to be publicly challenged as to whether police will be able to arrest prostitutes under the Bill, only to let them go later because of the exemption.

If this is a loophole, you can expect that some provinces and/or police departments will exploit it to its fullest. It will probably take a Charter challenge to close it. Some police stretch the law all the time, and that's why the judiciary are there to protect our rights. Plus, you will not be able claim malicious prosecution against police because you will not have been prosecuted (taken to court) yet. BTW, we don't have any law against False Arrest in Canada.

 

[wilbur]

It will be the law of the land across Canada. It must be "accepted" in every province. The manner of enforcement will be up to the police (who charge people) and the Crown (who decide whether to prosecute the charges).

The commandant of the Montreal Police (SPVM) Morality section has indicated in a recent interview, that the SPVM will not make it a priority of enforcing this new law, and will probably only respond to complaints. She cites spending police resources on where they are of greatest benefit to society, such as protecting underage and trafficked persons, as well as nuisance complaints. She stated that, in any case, it would be up to the director of prosecutions under the attorney general's office to decide on the enforcement policy, in consultation with all of the stakeholders. Montreal sex-worker organisations already enjoy a positive working relationship with the SPVM, and I am certain that they would not want to undermine that relationship by eradicating the supply of non-violent clients.

The Alberta Attorney General was criticized by MacKay earlier this year about the lack of enforcement of the struck down sections by the SCC dealing with prostitution. They are still in force because of the one year stay. So yes, individual provinces can decide not to enforce a law, or limit enforcement, and the Federal Justice Minister, MacKay in this instance, can go and pound sand.

 

[DigitallyYours]

So yes, individual provinces can decide not to enforce a law, or limit enforcement, and the Federal Justice Minister, MacKay in this instance, can go and pound sand.

It is still the law. It's not like a province can strike the law from the Criminal Code (unless the provincial Court of Appeal does that of course). Responding to complaints is still enforcing the law, just selectively. Isn't that what I said in my response?

 

[DigitallyYours]

If this is a loophole, you can expect that some provinces and/or police departments will exploit it to its fullest. It will probably take a Charter challenge to close it. Some police stretch the law all the time, and that's why the judiciary are there to protect our rights. Plus, you will not be able claim malicious prosecution against police because you will not have been prosecuted (taken to court) yet. BTW, we don't have any law against False Arrest in Canada.

That will never fly. The bad PR would be crippling. And you can sue the police for false or unlawful arrest.

 

[wilbur]

That will never fly. The bad PR would be crippling. And you can sue the police for false or unlawful arrest.

This isn't the US. It's a civil suit, not criminal. You don't get millions in damages. Only what is directly related to your false imprisonment related to the false arrest. And if you lose your case, the police board will sue you for damages (legal costs). Staying in the lockup for 4 hours will not get you much. Cops get lots of bad PR all the time, but they rarely get punished and life goes on.

I predict that, unless MacKay states right now for the record that this situation will not happen, it will happen as police tend to test the limits of their powers.

It is up to the politicians to confirm with MacKay right now whether the law permits police to arrest without a prospect of prosecution or not.

 

[wilbur]

It is still the law. It's not like a province can strike the law from the Criminal Code (unless the provincial Court of Appeal does that of course). Responding to complaints is still enforcing the law, just selectively. Isn't that what I said in my response?

I never said that a province can strike the law from the Criminal Code. I said:

"individual provinces can decide not to enforce a law, or limit enforcement", which is exactly what you said in response.

Not enforcing a law does not mean striking a law from the Criminal Code.

Limiting enforcement may mean responding to complaints only. Even then, police may decide not to act on a complaint if there is consent between free adults, which seems to be the direction Montreal Police is heading.

So, even considering your 'selective' enforcement, MacKay can still go and pound sand.

 

[DigitallyYours]

So, even considering your 'selective' enforcement, MacKay can still go and pound sand.

I think we are in agreement on this.

The OP asked the question "As liberal states, both states will reject it?" It's just semantics, but no province can reject a criminal law in that sense. Whatever the law says is illegal is still illegal. You just probably won't be charged or prosecuted for it if the powers that be decide so.

The police have discretion to lay charges or not. The Crown has prosecutorial discretion. This applies to all laws really.

The danger is that it may be the policy not to enforce today, but 5 years from now... who knows? Maybe a change in regime brings a change in policy.

 

[DigitallyYours]

This isn't the US. It's a civil suit, not criminal. You don't get millions in damages. Only what is directly related to your false imprisonment related to the false arrest. And if you lose your case, the police board will sue you for damages (legal costs). Staying in the lockup for 4 hours will not get you much. Cops get lots of bad PR all the time, but they rarely get punished and life goes on.

Yes, a civil suit. Not millions, or even $100,000, but probably tens of thousands + costs. And if, as you describe, you are strip searched and such, that will factor in. Also, there's the humiliation and violation of privacy issues. Maybe punitive damages perhaps. I'm not sure what the police board could counter sue or counterclaim with. Libel? Defamation?

It's not up to McKay to decide, but the courts.

And when I said bad PR, I meant bad PR for relations between prostitutes and the cops. If there is any real concern for helping prostitutes, like any of them would ever trust the police again if they try heavy handed tactics like this.

 

[Siocnarf]

Yes, a civil suit. Not millions, or even $100,000, but probably tens of thousands + costs. And if, as you describe, you are strip searched and such, that will factor in. Also, there's the humiliation and violation of privacy issues. Maybe punitive damages perhaps. I'm not sure what the police board could counter sue or counterclaim with. Libel? Defamation?

Most sex workers cannot afford a lawyer to do that. Police abuse is usually targeted at poor people.

 

[DigitallyYours]

The police can arrest someone who can be harmful to himself, for example someome trying to commit suicide even if he won't be prosecuted for that.

That is specifically provided for in the Mental Health Act. And they are not arrested. They are taken into custody to a place where they can be seen by a doctor.

 

[wilbur]

That is specifically provided for in the Mental Health Act. And they are not arrested. They are taken into custody to a place where they can be seen by a doctor.

When you are being taken into custody against your will, your civil liberties are being suspended. You are under arrest. Nothing that I can see prevents police from arresting a sex-worker and charging them as well under section 286(1). It is then up the Crown to determine if that person will be prosecuted.

The question is whether such an arrest can be lawful knowing that there is not going to be any chance of a prosecution and conviction. But the police conduct unlawful arrests all the time, not to mention when police arrest people and then let them go at the station after routine degrading strip searches. There are the odd civil suits as a result, but they are rare, and when they do occur, the complainant almost always loses, and sometimes even have to foot the legal bill of the Crown. I cannot imagine sex-workers, preferring to work anonymously, undertaking a civil suit (even if it is in small claims court), and having their actual names potentially broadcast to the whole wide world.

 

[DigitallyYours]

Benjamin Perrin is a law professor at the University of British Columbia, former special adviser for legal affairs and policy in the Prime Minister’s Office, and a senior fellow at the Macdonald-Laurier Institute.

I hope Perrin enjoys his time on the stand in the Duffy trial.

 

[wilbur]

I'm not sure what the police board could counter sue or counterclaim with. Libel? Defamation?

It's not up to McKay to decide, but the courts.

And when I said bad PR, I meant bad PR for relations between prostitutes and the cops. If there is any real concern for helping prostitutes, like any of them would ever trust the police again if they try heavy handed tactics like this.

You are right that prostitutes would never trust police again. Some police forces, like Montreal, take great pains to maintain good communications and relations with prostitutes and sex-worker organisations. But other police forces don't care about good relations. Making bogus appointments with sex-workers, and then storming their quarters with 3 police officers in SWAT gear and terrorizing them is not conducive to good relations.

Police boards do not counter sue when they win their case as respondents. They claim damages from the judge who ruled on the case, and the judge assesses reasonable legal costs to be paid by the complainant who undertook the suit and lost. That could be in the tens of thousands of dollars. That's enough to deter most persons from undertaking such suits, except if they happen to be lawyers, and there are very few sex-workers who are lawyers.

TV is not reality, and it's not even in Canada.

 

[Siocnarf]

The question is whether such an arrest can be lawful knowing that there is not going to be any chance of a prosecution and conviction.

This can be a moot point in many cases. They can use prostitution as an excuse to question and search prostitutes, and then arrest them for whatever reason they can find. If the person becomes loud or aggressive or even touches the policeman they can simply arrest them for ''assault''.

Prostitution laws and other consensual crimes law are often used as an excuse for arresting just about anyone.
http://www.cliterati.co.uk/2014/09/whore-detection/