Some notes on Juvenile/Street Prostitution

[beaver]

Laws prohibiting prostitution have been around since before Confederation. The first law to deal with prostitution was enacted in 1839. The law allowed police to take into custody any women who could not make a satisfactory account of herself. This law was generally known as the ‘Vag C’ law because it criminalized prostitutes who acts were legal as vagrants for being in public places. In 1972 this law was repealed and replaced with a law that made soliciting in a public place for the purpose of prostitution illegal. However, the Supreme Court of Canada in R. v. Hutt held that the soliciting must be of a pressing and persistent nature and that a vehicle did not constitute a public place, virtually rendering this law unenforceable. Thus, Parliament enacted the Bill C-49 in 1985 to create the ‘communicating law’. The purpose of the legislation was to alleviate traffic congestion and public nuisance on the streets and was subsequently upheld by the Supreme Court of Canada in Reference Re ss. 193 and 195.1(1)(c) of the Criminal Code These existing laws did nothing to curb the problem of juvenile prostitution. In 1988 based on recommendations from the Badgley and Fraser committees, Parliament introduced Bill C-15, An Act to amend the Criminal Code and the Canada Evidence Act. When the Bill was passed, the law was entered into the Criminal Code as s. 195(4) which stated:

Every person who, in any place, obtains or attempts to obtain, for consideration, the sexual services of a person under the age on eighteen years is guilty of an indictable offence for a tern not exceeding five years.

The purpose of this law was meant to curb the incidence of child prostitution by convicting and placing higher penalties on those who frequent child prostitutes. This law in the Criminal Code was amended in 1997 and changed to s. 212(4) which read:
Every person who, in any place, obtains or attempts to obtain, for consideration, the sexual services of a person who is under the age of eighteen years or who that person believes is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

The words ‘or who that person believes is under the age of eighteen years’ were added to the provision for the express reason of making it easier to police officers to convict potential customers of juvenile prostitutes by using female officers in sting operations. With the addition, female officers need only ask ‘I am under 18, is that ok?’ to a potential john. If the customer answers in the affirmative, the customer would still be found guilty under this law, even though the police officer is older than eighteen. The law was amended again in 1999 to its current version that is produced on page 2. In this updated version, the clause that was added in 1997 ‘or who that person believes is under the age of eighteen’ was removed and the words ‘or communicates with anyone for the purpose of obtaining for consideration’ was added in. The purpose of adding the clause that criminalizes the act as will the communication for the purposes of obtain it was to increase the penalty of even communicating with juvenile prostitutes. Under s. 213(1)(c) of the Criminal Code, the communicating offence was already criminalized but the punishment was a summary conviction only. The addition of the communicating offence with respect to juvenile prostitutes will increase the punishment for communicating with them to an indictable offence with a maximum punishment of five years.

 

[Stiffler]

As always Beav thanks for your useless information and drivel.

 

[vidi vici veni]

I disagree Stiffler. I found it rather interesting.

I'm wondering Beaver, if you could recommend any good sources, online or otherwise, for the history of vagrancy laws, in Canada and elsewhere.

vvv

 

[einar]

Moving out of the juvenile area for a moment: Can someone try to explain to me how it is that if prostitution per se is not illegal in Canada, and surely communication is not, then how communication for the purpose of prostitution *is* illegal?

I suspect I'll never understand it, neither legally nor philosophically. I cannot understand how this law itself -- intended to cleanse Canada's streets, not her escort world -- doesn't collapse under a challenge, probably under the Canadian Charter of Rights, which protect free speech.

Einar

(Forgive me if this is old ground or whatever)

 

[i_am_good]

...my 2 cents...

Einar,

The Law is very confusing in this respect but this is how I look at it.

What is the Law? The Law is whatever is written down in a book. Hence the phrase following "the letter of the law". That is, something is illegal only if the law specifically states it to be illegal.

When people try to make/write new laws, they are careful to word the law so that it captures the true purpose and does not impede anyone outside the scope of the issue.

So then, how do you write/word a law to stop prostitution? It's very difficult and the people who try are not very good at it. So then you get loopholes.

The Criminal Code is available online. For fun, you should take a look and see how they have tried to isolate only those activities related to Prostitution as being illegal. For example, there's a part that talks about slowing down traffic. It's there to address how "street walkers" approach potential "johns".

Hope this helps a bit?

 

[beaver]

You pose to very interesting questions. I have requoted them below:

1) how it is that if prostitution per se is not illegal in Canada, and surely communication is not, then how communication for the purpose of prostitution *is* illegal?

2) I cannot understand how this law itself -- intended to cleanse Canada's streets, not her escort world -- doesn't collapse under a challenge, probably under the Canadian Charter of Rights, which protect free speech?

I will try to address each question separetely.

1) Communication for the purposes of prostitution is expressly prohibited by section 213. The policy decisions for this law or the constitutional validity of it has been charter challenged many times. This I will discuss below.

2) The court has generally adopted a two-step approach to the Charter. First the court must determine whether the impugned legislation infringes a guaranteed right or freedom. If the court finds that no infringement has occurred, the challenge ends.
However, if a right or freedom has been violated, the court proceeds to the second step. In this next stage, the court continues to determine whether the infringement can be justified as a ‘reasonable limit’ under s. 1 of the Charter.

s. 2(b) of the Charter states that everyone has the following fundamental freedoms:
(b) Freedom of thought, belief, opinion and expression, including the freedom of the press and other media communication.

Robins J.A. of the Ontario Court of Appeal in an early Charter case stated that: “The constitutional guarantee extends not only to that which is pleasing, but also to that which to many may be aesthetically distasteful or morally offensive.” The Court has defined expression as any activity that conveys or attempts to convey a meaning. The only restrictions placed on expression are acts of violence. However, the right is not absolute. Expression encompasses most areas of human activity but can be curtailed under s. 1 as a reasonable limit.

However, in R. v. McLean the Court stated that communication between a prostitute and her customer was not protected under the freedom of expression. In R. v. Jahelka the Court reached the same conclusion by balancing the competing interests under section 1 of the Charter rather than a prima facie exclusion under s. 2(b) itself. The Supreme Court of Canada held the same decision in R. v. Skinner. The decision was based on Reference Re ss. 193 and 195.1(1)(c) of the Criminal Code. In this reference, the majority of Court held that limiting communication between a prostitute and a customer violated section 2(b) of the Charter. However, this limitation was justified under section 1 because street prostitution is a public nuisance and impeded the free flow of traffic.

So basically, The court is quite willing to find that many prostitution laws to infringe specific Charter rights. However, they will not go as far as to say that these INFRINGMENTS are not an unreasonable limit in a free and democratic society.

One would think that after 20 years of Charter discourse, the court may have evolved on some level with respect to prostitution and morality, but I havent come across any cases recently to prove that point.

As for websites that have information/law regarding prostitution, I would start with www.sexwork.com I dont really know any others.

 

[E_B_Samaritano]

Moving out of the juvenile area for a moment: Can someone try to explain to me how it is that if prostitution per se is not illegal in Canada, and surely communication is not, then how communication for the purpose of prostitution *is* illegal?

Einar

(Forgive me if this is old ground or whatever)

Einar,

The right to communicate or practice prostitution is not a right reserved under your Charter of Rights.

Present Canadian law no more prohibits prostitution than it does communication for prostitution. It restricts where such activities may be conducted. Hence, you may be cited for communicating on a public street or other venue, and you may be cited for communicating in a brothel or other business open to the public.

The Canadian Supreme court has made rulings that clearly draw the guidelines for where communication is "illegal" under the law. The intent of the prostitution statutes is in part to abate a public nuisance. (the other part seeks to abate exploitation) The Charter grants your individual right to free speech. However, your right to free speech may be abridged in the public domain where that speech may necessarily endanger the welfare and safety or offend the sensibility of others. The courts have a plethora of rulings governing your rights as a private citizen versus the right of the public to be free of a nuisance, threat, or endangerment. Public television is governed by legal controls on content that prohibit certain programming and the usage of certain spoken obscenities. Private channels are free of such restrictions, but are still subject to any regulation of pornographic content that is prohibited by law. For instance..child pornography is obviously not protected free speech or media. Newspapers that are privately owned have their rights to publish escort ads protected under the right of freedom of speech and press. You have a right to express a dislike for another person but you have no right to make death threats against that person. Likewise there is no right to shout fire in a crowded theater. At some point, common sense must be applied in the application of the laws. Applying these anecdotes, you have a right to communicate in private to facilitate prostitution, but you have no right to create a public nuisance or endanger the safety or welfare of the public in excercising that right.

EBS

 

[E_B_Samaritano]

Thanks Beav....now the Americans finally will have something to read and understand why its better to see ladies here.

Say what...?


EBS