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Solicitation and the use of Public space

Offences related to the act of prostitution itself revolve around the issue of solicitation and the use of public space. These offences pertain to:

s. 213(1) Every person who in a public place or in any place open to public view

stops or attempts to stop any motor vehicle,

impedes the free flow of pedestrian or vehicular traffic or ingress to or egress from premises adjacent to that place, or

stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction.

(2) In this section, “public place” includes any place to which the public have access as of right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view.

The actual act of exchanging sexual gratification for consideration is not in itself illegal. However, it is illegal to engage in prostitution or to obtain the sexual services of a prostitute in a public place. This restriction encompasses stopping or attempting to stop a motor vehicle, and communicating or attempting to communicate in any manner for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute.

requiring or attempting to require an employee to have sexual intercourse with a client;

enticing someone who is not a prostitute into becoming a prostitute or into a bawdy-house for the purposes of illicit sexual intercourse or prostitution;

procuring a person to enter or leave Canada for the purposes of prostitution;

controlling or influencing another person for gain in order to facilitate prostitution;

intoxicating a person for the purpose of enabling anyone to have sexual intercourse with the intoxicated person; and

living on the avails of prostitution

Bawdy-houses

Section 210 of the Criminal Code contains the bawdy-house offence:

s. 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.

(2) Every one who

is an inmate of a common bawdy-house,

is found, without lawful excuse, in a common bawdy-house, or

as owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or control of any place, knowingly permits the place or any part thereof to be let or used for the purposes of a common bawdy-house, is guilty of an offence punishable on summary conviction.

Section 197(1) defines the relevant terms. “Common bawdy-house” means a place that is kept or occupied, or resorted to by one or more persons, for the purpose of prostitution or to practise acts of indecency. Courts have interpreted this to mean that any defined space is capable of being a bawdy-house, from a hotel, to a house, to a parking lot – provided that there is frequent or habitual use of it for the purposes of prostitution or for the practice of acts of indecency, and the premises are controlled or managed by prostitutes or individuals with a right or interest in that space. Further, the test used to determine whether an act is indecent is a community standard of tolerance. Within this framework, the interpretation of indecency will depend on context, taking into account factors such as consent, the composition of any audience and the level of privacy of the room, community reputation of the place, and any harm caused. For example, if the room is private, or if there is no actual physical contact between a client and an entertainer, then an act is less likely to be labelled “indecent.”

Courts have also held that to be found guilty of keeping a common bawdy-house a person must have some degree of control over the care and management of the premises and must participate to some extent in the illicit activities involved there – although this does not necessarily mean participating in sexual acts. A prostitute may even be found guilty of keeping a common bawdy-house where he or she has used his or her own residence alone for the purposes of prostitution.

Alternatively, to be found guilty of being an “inmate” of a bawdy-house, a person must be a resident or a regular occupant of the premises. To be guilty of being “found in” a bawdy-house, a person must have no lawful excuse for his or her presence and must have been explicitly found there by the police at the time of raid. Finally, courts have said that to be guilty of knowingly permitting the premises to be used for the purposes of a common bawdy house, a person must have actual control of the place and must have either acquiesced to or encouraged its use for that purpose.

Section 197(1) defines “public place” as any place to which the public has access as of right or by invitation, whether express or implied. This includes any place that is open to public view, including a car, even one in motion, that is on a public street.

Procurement

Procurement essentially refers to an act of persuasion. This accordingly excludes situations where the person whose sexual services are being sold is already or subsequently becomes a prostitute of his or her own free will. Procurement encompasses the following situations:

requiring or attempting to require an employee to have sexual intercourse with a client;
enticing someone who is not a prostitute into becoming a prostitute or into a bawdy-house for the purposes of illicit sexual intercourse or prostitution;
procuring a person to enter or leave Canada for the purposes of prostitution;
controlling or influencing another person for gain in order to facilitate prostitution;
intoxicating a person for the purpose of enabling anyone to have sexual intercourse with the intoxicated person; and
living on the avails of prostitution

Does City Licensing Escorts and Escort Agencies make Escorting legal?

A former Calgary firefighter escaped further punishment for profiting from prostitution in a court decision that raises doubts about the validity of Calgary's escort bylaw. By The Calgary Herald February 22, 2006

A former Calgary firefighter escaped further punishment for profiting from prostitution in a court decision that raises doubts about the validity of Calgary's escort bylaw.

By licensing escort agencies, which are commonly known to provide sex for money, the City of Calgary led an escort operator to believe he wasn't breaking any laws, Court of Queen's Bench Justice Patrick Sullivan ruled Tuesday.

Douglas Eastaugh, 40, had faced 15 charges relating to running Liaisons Escort Agency in 2002 and 2003.

The owner of a rival city escort service said the judge's decision will allow her to conduct business with more confidence.

"This is fantastic," said Carol, who owns The Sweetest Taboo and refused to give her last name or age. "This is going to allow me to be a little more confident about running my business.

"I feel like we're doing nothing wrong in this industry. There are a lot of lonely, lonely people who need company."

Eastaugh was found guilty of two counts of living off the avails of prostitution, one count of operating a common bawdy house and one count of using a cellphone when he was prohibited by the courts.

But Eastaugh was not sentenced to a prison term.

"The City of Calgary erroneously induced the accused to reasonably believe that deriving an income from an escort agency, where escorts are engaged in sex for money, was not contrary to the criminal law," Sullivan said, delivering his 81-page verdict.

He cited a 1995 letter from a police commissioner urging the mayor to repeal the bylaw, which was "a thinly veiled attempt to control prostitution." A commissioner's report said the licensing served to "legitimize a portion of the sex trade industry."

Sullivan discharged the charge of violating a court order prohibiting cellphone use.

The only sentence Eastaugh received was for operating a bawdy house, relating to women having sex with clients in his home. In that case, the approximately 250 days he served before trial fulfilled the sentence.

Defence lawyer Patrick Fagan was thrilled Eastaugh was freed.

He said his client believed he was shielded from prosecution by being licensed by the city.

"The city tried to do the right thing," Fagan said. "They tried to get the girls off the street. They tried to make things safer, cleaner. They simply legislated in an area in which they have no jurisdiction."

The family of a 26-year-old escort who committed suicide while meeting clients in Vancouver was numbed by news that Eastaugh wouldn't return to jail.

"I think the bylaw should be changed. . . . (The city) takes money from agencies that provide escorts and prostitutes," said the cousin of the escort, who cannot be named under a publication ban.

The escort's mother also wants the bylaw rewritten.

"As a mom, I don't want to see this happen to another family. Another young woman who is put in a vulnerable place and makes a wrong decision (could) pay with her life or her family's life," she said, her fingers touching a round button with her daughter's face on it.

The Crown is reviewing the verdict and hasn't decided whether to seek an appeal, said prosecutor David Torske.

Meanwhile, Torske is concerned about the effect the decision could have on Calgary's illegal sex trade.

"It may give a green light to the operating of escort services and (legalize) the business of prostitution in this city," he said.

Officials of the City of Calgary and Calgary Police Services declined to comment while an appeal is possible.

But the city's date and escort bylaw remains in effect "and will continue to be enforced as required," said Stan Schwartzenberger, manager of the city's development and business licence department.

Mahfooz Kanwar, a criminologist at Mount Royal College, said Tuesday's decision could be used to legitimize escort services across Canada, setting a precedent for cities with similar bylaws.

It could also be used by other Calgary escort services facing prostitution charges, or deter the Crown from bringing charges in the first place, he added.

"Obviously the City of Calgary has to strengthen the bylaw immediately. A judge has ruled the law we have in place now essentially legalizes prostitution in escort services," he said.

The Sweetest Taboo's Carol said she's a "dinosaur" in the escort business, having obtained her first business licence in Calgary in 1993.

She said it's difficult to determine what happens between her escorts and her clients behind closed doors, but maintained her service isn't about sex.

"When I send somebody out, or when I go myself, to the Westin or the Palliser and I'm sitting in a room, hey, the sky's the limit," she said. "Where's the harm in it?"

*** note *** This is a general and descriptive explaination of Canadian Escorts laws, but for more info, consult a lawyer for case law and clarifications or terms. Ottawa Escort and Escorts law: this article has been included in OttawaAtNight by request. I hope it answers all your questions.

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