Most recent articles on prostitution related laws, opinions, comments

[wilbur]

What's interesting is that Ontario could actually enact a law that says 286.1 will only be prosecuted in cases of exploitation. I doubt they would, but I believe they constitutionally could.

I don't think that they would or could pass such law. It would be ultra-vires, meaning that it encroaches on a higher jurisdiction.

However, the Director of Prosecutions under the Attorney General's office could instruct their Crown prosecutors not to prosecute, and advise police not to enforce or limit enforcement to cases such as when it causes actual harm. Crowns routinely decide not to enforce certain laws because it may not be in the public interest, such as the cost-benefit with respect to prosecution or enforcement by police. For example, the limited resources available being directed to where the public good is most affected.

 

[wilbur]

I think they could put her in investigative detention. For an actual arrest:
A police officer can arrest where:
1. there is reasonable grounds a person has committed an indictable offence;
2. there is reasonable grounds a person is about to commit an indictable offence;
3. a person is committing an indictable offence; or
4. a person has a warrant out for his/her arrest.
I don’t think we can say the prostitutes commits a criminal offence, because she cannot be prosecuted under the criminal code. This could be debatable. I'm not an expert so I could be wrong on this. However, an arrest is a serious loss of freedom and police could get in a lot of trouble if they just did that for no valid reason. In reality the Crown and LE work together to decide how the laws are applied. Plus, it is clear from what the government says that one goal of the law is to not arrest the women. So it would be very surprising if police were using dubious loopholes to arrest them.

AFAIK, detention is very brief, so as to allow the police officer to determine whether there is sufficient cause for arrest. Detention at a police station is an arrest. Charges are laid after.

An arrest is a serious loss of freedom, but there is little downside for the police for doing so without sufficient probable cause. Crowns will not prosecute police for that, and getting a lawyer to conduct a private prosecution is virtually impossible. As for a civil suit, it costs a lot of money, and you can't sue very much for damages; plus, if you lose your case, you will get slapped with a legal bill for the Crown's legal costs into the tens of thousands of dollars. In any case, what prostitute would risk having her real name spread over the media (unless you're Ms. Bedford) and have your profession revealed to the world.

 

[wilbur]

The way I interpret that sentence it is not illegal. When you say ''but for'' it means the first part is invalided by the second part of the sentence. As in the expression: ''This SP is perfect but for her poor attitude.'' It means she was not perfect.
http://idioms.thefreedictionary.com/but+for



OK, but what would be the justification for arresting them? That would be extremely bad PR for police to arrest people just to offer them the opportunity of some exit strategy. And if you cannot prosecute them, how can you induce them in accepting that generous offer? If they want to offer them strategies they can just go and talk to them. They can justify making some of their ''courtesy visits'' but actually arresting them would be very draconian and unacceptable.

This is a transcript of a verbal exchange. I doubt that Mr. Piragoff is a linguist. 'but for' simply means 'except for'.

There were a few exchanges between Senator Joyal and Assistant Deputy Minister Piragoff. Joyal was pointing out the contradiction of being able to legally sell what is illegal to buy. But Piragoff clearly said that there was no contradiction, as transacting sex was illegal for both parties, except that the seller had immunity from prosecution.

I can dig up more of these statements, but it is clear in the Senate transcript above.

Given that, the justification for arrest is that they are breaking the law by selling sex. Indeed, nothing in the law says that they can't be arrested. Only that they can't be prosecuted. The cops do the arresting, while the Crown does the prosecuting.

They do usually work together, but there could be a policy direction from the Provincial Attorney General to either allow arrests without prosecution, or disallow them. Remember: the Attorney General is a politician, and will apply the ideological policy of the political party that runs the government of the day.

 

[Siocnarf]

This is a transcript of a verbal exchange. I doubt that Mr. Piragoff is a linguist. 'but for' simply means 'except for'.
...
Given that, the justification for arrest is that they are breaking the law by selling sex. Indeed, nothing in the law says that they can't be arrested. Only that they can't be prosecuted. The cops do the arresting, while the Crown does the prosecuting.

''Except for'' still means the same: Illegal, except for X. It is illegal, except in this case. Therefore in that case, it is not illegal.

Prostitution is a complex multi-facetted activity. It is pointless to say whether it is legal or illegal as a whole. Even in a legalized regime, many aspects of it are often illegal in many ways.

This law doesn't state explicitly if the job is ''legal'' or ''illegal''. It just states who can be guilty of an offense and under which conditions. This is what establishes if a specific action is illegal or not, in my opinion. If you cannot ever be guilty for action X, then action X is not illegal. The simplest reasoning is that if the law allows you to do something, then it is not illegal.

This is my interpretation. The CBA affirmed that it was not illegal, but I would have liked to hear them discuss why. Maybe they have a different reasoning. Anyway, the government will have to give good reasons why they wrote it like that and make their intentions clear when this gets to court. This is confusing and there is certainly a reason why they wrote it like that instead of just saying that it's illegal to sell someone else's services.

 

[wilbur]

Therein lies the problem: if we follow Piragoff`s reasoning, the whole transaction is defined as illegal, not because the law says so explicitly (Senator Baker`s question about de jure), but because it is implied that the sale is as well, by its wording (no prosecution for the sale). This, instead of saying outright that the seller is committing a criminal act by the sale of services.

Not sure that I have ever heard of law that criminalizes an entire activity without ever saying so explicitly in its text, or if this kind of reasoning will stand in court.



With the exception of Quebec, I believe. The Directeur des poursuites crimi et pénales, the Attorney General of the Province, is an independent appointment, and there are strict rules dictating the nature of the discussions between the Minister of Justice and the Directeur.

Senator Baker never got an answer from MacKay about whether the illegality of selling sex was de jure or just de facto. So I take it that he kept quiet on that because it`s a hidden agenda, as is the case with their sneaky omnibus bills where they hide unpopular legislation. In this case: that of giving police the power to harass and persecute prostitutes through other means.

A very sinister and hypocritical measure, given that they profess wanting to protect prostitutes. It has nothing to do with protection, but everything to do with imposing their morality on society. They couldn`t give a shit about those deemed to be exploited, given the lousy 20 million dollars promised to direct them towards moral rectitude. Of course, that money will go to those radical feminist and fundamentalist religious organizations that profess to protect sex-workers, but who happened to publicly endorse the Conservatives` vision of morality.... and not to individuals directly. As far as they`re concerned, they don`t care if prostituted women wind up flipping burgers or cleaning toilets.

There are already indications that the Directeur des poursuites crimi et penales is going to consult with stakeholders such as SPVM and other police forces, as well as prosecutors as to the course of action after the law is enacted. SPVM (Montreal Police) seem to want to enforce the law only while responding to complaints and matters relating to underage and trafficking.

As for the other Attorneys General, it could vary widely across the country. Ontario does direct prosecutors towards ideology, such as prosecuting those legal firearm owners accused of using a firearm for self defense, even when there is little chance of conviction..... except conviction through the costs of legal defense.

 

[wilbur]

''Except for'' still means the same: Illegal, except for X. It is illegal, except in this case. Therefore in that case, it is not illegal.

Prostitution is a complex multi-facetted activity. It is pointless to say whether it is legal or illegal as a whole. Even in a legalized regime, many aspects of it are often illegal in many ways.

This law doesn't state explicitly if the job is ''legal'' or ''illegal''. It just states who can be guilty of an offense and under which conditions. This is what establishes if a specific action is illegal or not, in my opinion. If you cannot ever be guilty for action X, then action X is not illegal. The simplest reasoning is that if the law allows you to do something, then it is not illegal.

This is my interpretation. The CBA affirmed that it was not illegal, but I would have liked to hear them discuss why. Maybe they have a different reasoning. Anyway, the government will have to give good reasons why they wrote it like that and make their intentions clear when this gets to court. This is confusing and there is certainly a reason why they wrote it like that instead of just saying that it's illegal to sell someone else's services.

So, according to you, 'but for' invalidates the previous. In other words, Piragoff disputes Joyal's claim that selling is legal by saying that it's illegal, except that it's legal. Doesn't make any sense, my friend, given the context.

My point here is that the Minister MacKay has to be challenged now on this issue, so that the law becomes clear for everyone involved. It would also reveal to the public whether the Conservatives have any hidden agendas, which could be damaging for them during election time.

I'm convinced now, thanks to reverdy, that a hidden provision of arrest without prosecution was included as a result of Calgary Police Chief Rick Hanson's wish to have enough power to be able to 'apprehend' sex workers for their own good, whether they like it or not. They are doing that in the US already in certain places, when police arrest prostitutes, and offer them a brainwash at the hands of bible pounding born again zealots as an alternative to prosecution.

Why else would they grant immunity from prosecution instead of immunity from arrest? It doesn't make sense otherwise.

 

[MPAsquared]

I wish Ontario would speak up! We're all dying to know what the stance is here!!

 

[Siocnarf]

So, according to you, 'but for' invalidates the previous. In other words, Piragoff disputes Joyal's claim that selling is legal by saying that it's illegal, except that it's legal. Doesn't make any sense, my friend, given the context.

I'm just saying that's what his sentence means. I have no idea if that's what he meant to say. I would bet they are careful to be as ambiguous as possible. About selling, as far as I understand selling sex is illegal, except when it is someone selling their own sex.

They are usually careful to answer with answers that don't really tell us anything. The ''commercial business'' is another exemple of something they don't want people to know. When Senator Jaffer asked the woman from the Ministry to clarify, she answered that commercial enterprise would imply a third party benefiting and that it would not apply to someone working by themselves. It doesn't answer the question at all and contradicts the notion that SP are allowed to hire help. This exception gives them the possibility of really arresting any third party.

Third parties are not criminal, unless they work in a commercial enterprise that sells sex for consideration. The most clear interpretation is that bodyguards, phone assistant, etc are all criminal. They are giving the illusion that it is allowed, but in reality any of them can be arrested without problem. In that case it is certain they are allowed to arrest, because prosecution is possible. I see that as much more problematic than the question about the seller

I know chief Hanson wants to continue arresting prostitutes for rescue. But if there is no threat of any sanction, arresting is a very empty bluff and just very bad PR.

I don't think the criminal code can say ''you will not be arrested''. That's not the job of the law. The law says what is a crime and the police make the decisions to arrest based on their judgement. On the other hand criminal law is not supposed to say ''you will not be prosecuted'', so I don't know...

 

[chrlsdickens]

This is the federal court ruling that declares mistresses’ (Sugar Babies) income and gifts are tax exempt and not prostitution income. There are many lawyers that will say that sugar relationships are in a grey area of law. Many of them don’t know of this court decision that rules if the lover’s relationship consists of other activities and not just sex session, the income or properties from such relationship are considered as gifts and not payment for prostitution services.See UNITED STATES of America, Plaintiff-Appellee, v. Lynnette HARRIS and Leigh Ann Conley 942 F.2d 1125

 

[MPAsquared]

This is the federal court ruling that declares mistresses’ (Sugar Babies) income and gifts are tax exempt and not prostitution income. There are many lawyers that will say that sugar relationships are in a grey area of law. Many of them don’t know of this court decision that rules if the lover’s relationship consists of other activities and not just sex session, the income or properties from such relationship are considered as gifts and not payment for prostitution services.See UNITED STATES of America, Plaintiff-Appellee, v. Lynnette HARRIS and Leigh Ann Conley 942 F.2d 1125

This isn't America sweetie.

 

[wilbur]

I know chief Hanson wants to continue arresting prostitutes for rescue. But if there is no threat of any sanction, arresting is a very empty bluff and just very bad PR.

I don't think the criminal code can say ''you will not be arrested''. That's not the job of the law. The law says what is a crime and the police make the decisions to arrest based on their judgement. On the other hand criminal law is not supposed to say ''you will not be prosecuted'', so I don't know...

We are now seeing the sinister aspect of Conservative (Harper) ideology.

That is the erosion of individual freedoms and Charter rights. Harper is on a confrontation course with the Supreme Court of Canada, as illustrated with his public spats with the Chief Justice, and his attempt to fill vacancies with those who would push his own ideology. He has maintained in the past that non-elected persons (Supreme Court judges especially) should not be allowed to overturn laws passed by the will of the people (himself and his party as representatives of the people).

They are making laws giving unprecedented powers to the Minister and his bureaucrats over revocation of citizenship and collection of private information under the guise of protecting us from terrorists, and giving unprecedented powers for police to snoop on your communications. All of this falls under the Charter of Rights and the role of the Supreme Court in upholding those rights.

Now will come the power to arrest without any chance of prosecution, and the provision to arrest prostitutes without such possibility of prosecution will be the precedent for beginning the process of undermining the rights and freedoms of society at large.

This government is bringing us slowly but surely towards an authoritarian state.

 

[Siocnarf]

He has maintained in the past that non-elected persons (Supreme Court judges especially) should not be allowed to overturn laws passed by the will of the people (himself and his party as representatives of the people).

But SCC judges are appointed by the elected government, so they are in fact appointed by the will of the people. The Charter was also made by the elected government. So when the SCC overturns a law based on the charter they do it completely according to the will of the people.

What I am wondering is this: Harper and MacKay probably have their ideas on how this law should be defended in front of the SCC. But by that time we will probably have a different government. If nobody else really knows what all these provisions are supposed to mean, how is the next federal government going to explain it to the courts? It doesn't really matter how MacKay interprets the law. If he doesn't articulate it clearly now, whoever is in power next will interpret it in their own way.

 

[wilbur]

The people who wrote the Bill for the Department of Justice, will still be there. They probably understand the wording of the Bill better than MacKay does. Donald Piragoff for instance has been working for the Department since 1981.

With a new political party running the government, it is usually the senior bureaucrats, a legacy of the previous government, who tell the Minister how to run things. It takes a while to weed out those assistant deputy ministers. In the meantime , under a new government, people the likes of Piragoff will be defending their positions made under their previous bosses, lest they look like idiots if they change their minds.

Maybe he'll take early retirement, in order to avoid making a public fool of himself, trying to justify his arguments in front of a new government, or in front of the SCC.

 

[wilbur]

But SCC judges are appointed by the elected government, so they are in fact appointed by the will of the people. The Charter was also made by the elected government. So when the SCC overturns a law based on the charter they do it completely according to the will of the people.

That kind of will of the people only applies when Harper and his conservatives are in power. It doesn't count when previous governments appoint SCC justices. If he had his way, he would dismiss the SCC judges appointed under previous governments, and appoint his own. Not even Adolf Hitler did that when he took over Germany.

 

[GPIDEAL]

The US laws are quite different from Canadian laws. They have no relevance here.

Yes laws are different, but sometimes, in the absence of such a specific provision or difference in jurisprudence, the Canadian Courts will look to American case law as a guide in rendering decisions. (I've read decisions concerning construction law, where American court decisions were used as a guide for precedents).

However, as chrlsdickens pointed out, the broad wording of Bill C-36 could 'capture' men who have mistresses and sugar-babies, or however you would like to call them.

Frankly, I think this is an area that is not a priority of concern for most hobbyists, even if it is real legal prohibition.

 

[GPIDEAL]

http://www.parl.gc.ca/Content/SEN/C...557-e.htm?Language=E&Parl=41&Ses=2&comm_id=11

Mr. Piragoff: That's where we beg to differ, senator. It is an illegal act, but for the provision which grants immunity. Even if the law only directly penalized the purchase of sex, the seller could be a party to that purchase, but for the fact that Bill C-36 explicitly says you cannot be prosecuted for that.

Mr. Piragoff: It's not a legal service that is being offered. It is a service which the bill says we will not prosecute you for. There is a difference.

I disagree with Piragoff.

I pointed out in another thread that the law specifically prohibits those who OBTAIN or communicate to OBTAIN sexual services. This does not apply to prostitutes or those who offer such services, or who sell such services.

Addendum:

I looked at 286.2 and 286.5. You are right in one aspect.

It is an offence for a working girl, even under 18, to receive consideration ("financial or material benefit"), but they are subject to immunity from prosecution, including immunity for aiding or abetting and entrapping, or an attempt thereof.

However, none of these laws specifically address the act of selling or specifically prohibiting it.

This perhaps could leave open a Charter challenge, that OTHER activities surrounding the sale transaction, subject the SP to unsafe risks, just like in the Bedford decision.

 

[Siocnarf]

The people who wrote the Bill for the Department of Justice, will still be there. They probably understand the wording of the Bill better than MacKay does. Donald Piragoff for instance has been working for the Department since 1981.

This is only my own opinion, but the way I see it Pirigoff is essentially an attorney working for the Minister of Justice. He will argue the position of anyone who happens to be his employer. Right now MacKay tells him what he wants with this bill. Next year, some other ministry of Justice can tell him what his position is. This is one reason why his talk is so ambiguous and open to any interpretation. Based on what Pirigoff says now, in the futur he could either argue that he meant ''legal'' or ''illegal''.

The problem is that the wording of the bill is really not clear now and Pirigoff could go either way in 5 years without openly contradicting what he said now.

 

[Siocnarf]

...under a new government, people the likes of Piragoff will be defending their positions made under their previous bosses, lest they look like idiots if they change their minds.

My opinion is that his stance is not clear now. His position can be interpreted in any way depending on the reader. So in the future he could litterally defend any position without being in contradiction with anything he said now.

I gave my own interpretation of his words, but I know many people interpret it to mean the opposite. I think this is intentional on the part of the government. Like a Nostradamus prediction they can mean whatever you want. In the future he can claim he meant whatever is convenient at this time. They leave all their interpretation open, so they don't have to commit to an actual interpretation until this becomes a challenge.

 

[Siocnarf]

''Unlawful arrest'' is when a police makes an arrest without probable cause or warrant. This can happen for any offense, when the police arrests you for no good reason. For example, buying sex will be a crime, but if they arrest you without any real cause it is an unlawful arrest.

What I meant in my post is that I think the criminal code cannot say ''you cannot be arrested for section 286.2''. Making an arrest is the LE's business. As far as I know, police can only arrest you if you are committing a criminal offense. If you cannot be prosecuted, the action is not an offense.

The power of law is divided in 3:
-Government writes the law and decides which activities constitute an offense.
-Police decides who is arrested for committing an offense and lays charges.
-The courts decide if there is enough ground to prosecute and if the suspect is guilty.
This clear separation helps protect our liberties and prevents abuse of power.

The legislative branch cannot say ''This is a crime, but police will not arrest you''. They cannot say ''this is not an offense, but police can still arrest you for it''. The only thing the criminal code is supposed to say is ''This act is a crime and if you are guilty you can spend up to X years in jail''.

Currently the bill is infringing on the courts power by saying ''you will not be prosecuted''; which I think never happened before. People here are wondering if the LE can make an arrest for a ''crime'' that cannot be prosecuted. My opinion is no, but I'm not a chief of police.

 

[Fallsguy]

But SCC judges are appointed by the elected government, so they are in fact appointed by the will of the people. The Charter was also made by the elected government. So when the SCC overturns a law based on the charter they do it completely according to the will of the people.

What I am wondering is this: Harper and MacKay probably have their ideas on how this law should be defended in front of the SCC. But by that time we will probably have a different government. If nobody else really knows what all these provisions are supposed to mean, how is the next federal government going to explain it to the courts? It doesn't really matter how MacKay interprets the law. If he doesn't articulate it clearly now, whoever is in power next will interpret it in their own way.

As soon as bill C36 becomes law it will be quickly challenged in the courts. As soon as its' thrown out by a lower court it will be good as dead because whatever government is in power will not appeal it. Even if the Conservatives (God forbid!!!!!) are still in power it's unlikely that any court would give the law a stay until the gov't could come up with something new or appeal it to a higher court.