Providing free legal information and representation to the low income community since 1969.
Communication For The Purposes Of Prostitution
Undercover Police Officers
Living Off The Avails Of Prostitution
Getting Arrested For Prostitution Charges
The Protection Of Sexually Exploited Children Act (PSECA)
Prostitution, engaging in sex for money, is not a crime if you are over 18 years old. When someone has a date or “turns a trick” he or she is not breaking the law. However, Section 213 of the Criminal Code of Canada states that any person who stops or attempts to stop a motor vehicle, impedes the flow of traffic (which includes pedestrians or vehicles), or communicates for the purposes of prostitution or to obtain the sexual services of a prostitute in a public place is guilty of a summary conviction offence.
Communication for the purpose of prostitution is any attempt to get a person to pay money for sex or to provide sexual services in return for money.
There are two main forms of communication:
1. Verbal Communication:
Verbal communication is using words to say something, either by talking or in writing. A person is breaking the law if they discuss the price of sex acts or the services to be performed. A person can still be charged even if:
- The price is not fixed
- The acts to be performed were not fixed
- The communication does not end in sex (or a “date”)
- The communication takes place in a car, moving or not.
2. Non-Verbal Communication:
Non-verbalcommunication includes gestures, body language, hand signals or other ways of communicating without words. This can be anything from a wink to waving arms or interrupting the movement of pedestrians or traffic. Police must prove that the person used the action to stop another person for the purposes of prostitution. For proof, the police look at such facts as the time, place, past actions of the person stopping the car and other things going on in the area.
A person can be found guilty of communicating for the purposes of prostitution even where there has been no physical contact. Any communication for the purpose of sexual acts in exchange for payment is enough.
The majority of case law states that a police officer does not have to identify himself or herself if asked, “Are you a cop?” or “Are you undercover?” The police only have to identify themselves once they start an arrest. Also, a police officer IS allowed to sexually touch a prostitute if it is in fulfilment of the officer’s duty. So, if a prostitute asks a potential john to touch her sexually and he does, that does not guarantee that he is not a police officer.
A police officer cannot take a photograph of someone who is charged with communicating for the purposes of prostitution unless permission is given. Communicating is a summary conviction offence, which means it is considered to be less serious than offences labelled as indictable. If someone is charged with other offences, which are indictable or hybrid offences, they may be required to give fingerprints or be photographed.
Procuring means counselling or persuading someone to do something. Section 212 of the Criminal Code of Canada says that it is an indictable offence to procure a person to have sex with another person, and punishable by a maximum sentence of 10 years in prison. Procuring can take many forms, including but not limited to: hiding someone in a bawdy house (or brothel), persuading someone to become a prostitute, giving someone drugs or alcohol to make it possible for them to have sex, or living off the profits of the prostitution of another person.
Under Section 212 of the Criminal Code of Canada, it is an offence to live entirely or in part off of the avails or profits of prostitution. This law is meant to target pimps whose main source of income is prostitution. This offence is not applied to prostitutes as the main offender but to those who make money off of the prostitution of others.
This offence is not meant to punish a relationship of a legitimate living arrangement; the mere sharing of expenses between two people, where one of them is a prostitute, is not enough to satisfy this offence. There must be a direct benefit to one person from the prostitution of another.
This offence carries with it a reverse onus provision. That means, once the Crown proves that a person is living with or routinely in the company of a known prostitute, it can be presumed that the person is living off the avails of prostitution unless the accused provides evidence showing that he was not. This means the accused must raise a reasonable doubt that although they are living with a prostitute, they are not receiving a direct benefit from it. This may involve showing that they have another source of income. However, using wages from prostitution to support children is not illegal even though the children are receiving a direct benefit.
Living off the avails of prostitution is an indictable offence and punishable by a term of imprisonment of not more than 10 years. If the prostitute is under the age of 18, the potential maximum sentence is 14 years with a minimum sentence of 2 years. If violence is used or threatened there is a minimum 5 year sentence.
Section 173 of the Criminal Code of Canada states that it is an offence to commit public acts of indecency. The standard for this is one of community tolerance. Section 174 of the Criminal Code of Canada states that it is an offence if one is nude in a public place, or if one is nude in a private place but is exposed to public view. The offence is punishable on summary conviction.
1. A Person’s Rights when Under Arrest
When someone is arrested, the police must:
- Inform them of the reason for the arrest
- Inform them of their right to call a lawyer
- Inform them that they can get free legal advice (any time, day or night)
- Give them the phone number for free legal advice
- Give them reasonable privacy and access to a phone to call a lawyer
- Give them a reasonable amount of time to contact and talk to a lawyer
- Inform them that they can get duty counsel any time (duty counsel is a lawyer who will talk on their behalf in court)
The police police must not force someone to answer questions before she talks to a lawyer if she has asked to speak to one. If she waives her right to counsel she still has the right to be silent when asked questions. There are some court diversion programs that may be offered by the police upon arrest such as SNUG.
The Prostitution Awareness and Action Foundation of Edmonton (PAAFE) offers a diversion program called COARSE (“Creating Options Aimed at Reducing Sexual Exploitation”). If an adult is charged with summary conviction offences, such as soliciting, minor theft, or breach of probation, that relate to their being a prostitute, they can apply to do a COARSE diversion plan. If they are successful, their charges will be withdrawn. COARSE is designed to help people involved in prostitution deal with the causes of their involvement, such as addictions, homelessness, and mental health issues. Applicants must be serious about trying to end their involvement with prostitution.
The Protection of Sexually Exploited Children Act (PSECA) is based on the idea that children (under 18 years old) involved in prostitution are victims of sexual abuse who need help and protection. PSECA allows for youth considered at immediate risk of being involved in prostitution to be taken away by the police or caseworker and taken to a “safe house” and confined for up to 5 days and can be renewed for a maximum of 42 days more and then connected with support services and placement services if they are unable to return home. At the safe house, the child is assessed for protection needs, medical concerns, drug and alcohol use, and other risks. People who live off of the profits of the prostitution of a person under 18 can face a maximum sentence of 14 years in prison with a minimum sentence of 2 years. Anyone who communicates for the purpose of obtaining sexual services of a child under 18 can face imprisonment for a maximum of 5 years and minimum of 6 months.
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