Procuring and Living on the Avails of Prostitution (Repealed Offence)

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Procuring and Living on the Avails of Prostitution
s. 212 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-charge, or Judge
Indictable Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))*
Fine (734)*
Fine + Probation (731(1)(b))*
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
Minimum 2 years incarceration (212(2))
5 years incarceration (212(2.1))
6 months incarceration (212(4))
Maximum 5 years incarceration (212(4))
10 years incarceration (212(1))
14 years incarceration (212(2), (2.1))
Reference
Offence Elements
Sentence Digests

Note: Section 212 and its header was entirely repealed by 2014, c. 25 on December 6th, 2014.

Overview

Section 212 describes several separate indictable offences related to facilitating prostitution and similar offences:

  1. procuring a person into prostitution (ss. 212(1)(a), (d), (e) and (g))
  2. entices, conceals or directs a person to a bawdy-house (ss. 212(b), (c), and (f))
  3. exercising control over a prostitute (s. 212(1)(h))
  4. intoxicating a person to enable illicit intercourse (s. 212(1)(i))
  5. living off the avails of prostitute (s. 212(1)(j))
  6. living off the avails of prostitute under the age of 18 (s. 212(2), (2.1))
  7. obtaining services of a minor (212(4))

The Fraser Committee (Pornography and Prostitution in Canada (1985)) and the Badgley Committee (Sexual Offences Against Children (1984)) describe the social problem created by prostitution, which were the drive behind amendments to s. 212.

Given the parasitic and coercive relationship between the pimp and prostitute, girls are often extremely reluctant to come forward and testify for the Crown.[1]

Pleadings
Offences under s. 212(1), (2), (2.1) and (4) are straight indictable. There is a Defence election of Court under s. 536(2).

Release
When charged under s. 212(1), (2), (2.1) or (4), the accused cannot be released by police under s. 497 or 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by an order of a judge or justice pursuant to s. 515. A youth will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an attendance notice or a summons without a s. 496 arrest, and if arrested, can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The youth can also be released by an order of a judge or justice under s. 515.

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

A peace officer who charges a person under 212 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Ban
For all offences there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offences under s. 212(2), (2.1), (4) are "designated" offences under s. 752 for the purpose of dangerous offender applications.

Offences under s. 212(1), and (4) are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

  1. see the Report of the Committee on Sexual Offences Against Children and Youths (the Badgley Committee), Sexual Offences Against Children (1984), vol. 2, at pp. 1057-58

Offence Wording

Procuring
212. (1) Every one who

(a) procures, attempts to procure or solicits a person to have illicit sexual intercourse with another person, whether in or out of Canada,
(b) inveigles or entices a person who is not a prostitute to a common bawdy-house for the purpose of illicit sexual intercourse or prostitution,
(c) knowingly conceals a person in a common bawdy-house,
(d) procures or attempts to procure a person to become, whether in or out of Canada, a prostitute,
(e) procures or attempts to procure a person to leave the usual place of abode of that person in Canada, if that place is not a common bawdy-house, with intent that the person may become an inmate or frequenter of a common bawdy-house, whether in or out of Canada,
(f) on the arrival of a person in Canada, directs or causes that person to be directed or takes or causes that person to be taken, to a common bawdy-house,
(g) procures a person to enter or leave Canada, for the purpose of prostitution,
(h) for the purposes of gain, exercises control, direction or influence over the movements of a person in such manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution with any person or generally,
(i) applies or administers to a person or causes that person to take any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower that person in order thereby to enable any person to have illicit sexual intercourse with that person, or
(j) lives wholly or in part on the avails of prostitution of another person,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
Living on the avails of prostitution of person under eighteen
(2) Despite paragraph (1)(j), every person who lives wholly or in part on the avails of prostitution of another person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of two years.
Aggravated offence in relation to living on the avails of prostitution of a person under the age of eighteen years
(2.1) Notwithstanding paragraph (1)(j) and subsection (2), every person who lives wholly or in part on the avails of prostitution of another person under the age of eighteen years, and who

(a) for the purposes of profit, aids, abets, counsels or compels the person under that age to engage in or carry on prostitution with any person or generally, and
(b) uses, threatens to use or attempts to use violence, intimidation or coercion in relation to the person under that age,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years but not less than five years.
Presumption
(3) Evidence that a person lives with or is habitually in the company of a prostitute or lives in a common bawdy-house is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution, for the purposes of paragraph (1)(j) and subsections (2) and (2.1).
Offence — prostitution of person under eighteen
(4) Every person who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years and to a minimum punishment of imprisonment for a term of six months.
(5) [Repealed, 1999, c. 5, s. 8]
R.S., 1985, c. C-46, s. 212; R.S., 1985, c. 19 (3rd Supp.), s. 9; 1997, c. 16, s. 2; 1999, c. 5, s. 8; 2005, c. 32, s. 10.1.


CCC

Proof of the Offence

Proving procuring a person into prostitution under s. 212(1)(a), (d), (e) and (g) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. either:
    1. procures, attempts to procure or solicits a person to have illicit sexual intercourse with another person, whether in or out of Canada, (212(1)(a))
    2. procures or attempts to procure a person to become, whether in or out of Canada, a prostitute, (212(1)(d))
    3. procures or attempts to procure a person to leave the usual place of abode of that person in Canada, if that place is not a common bawdy-house, with intent that the person may become an inmate or frequenter of a common bawdy-house, whether in or out of Canada, (212(1)(e))
    4. procures a person to enter or leave Canada, for the purpose of prostitution, (212(1)(g))

Proving enticing, concealing or directing a person to a bawdy-house under s. 212(b), (c), and (f) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
    1. inveigles or entices a person who is not a prostitute to a common bawdy-house for the purpose of illicit sexual intercourse or prostitution,
    2. knowingly conceals a person in a common bawdy-house,
    3. on the arrival of a person in Canada, directs or causes that person to be directed or takes or causes that person to be taken, to a common bawdy-house,

Proving exercising control over a prostitute under s. 212(1)(h) should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit exercises control, direction or influence over the movements of a person
  5. the actions were in a manner as to "show that he is aiding, abetting or compelling" that person to engage in or carry on prostitution
  6. the actions were for the purposes of gain

Proving intoxicating a person to enable illicit intercourse under s. 212(1)(i) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. either:
    1. the accused applies or administers to a person a substance; or,
    2. causes that person to take a substance
  5. the substance is any drug, intoxicating liquor, matter or thing
  6. the culprit does the act with intent to
    1. stupefy or overpower that person in order; and,
    2. enable any person to have illicit sexual intercourse with that person

Proving living on the avails of a prostitute under s. 212(1)(j) should include: [2]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit lives wholly or in part on the avails of prostitution of another person

Proving living off the available of prostitute under the age of 18 under s. 212(2), (2.1) should include:

  1. The same elements as 212(1)(j);
  2. the person engaging in prostitution is under the age of 18 (212(2))
  3. the accused: (212(2.1))
    1. for the purposes of profit, aids, abets, counsels or compels the person under that age to engage in or carry on prostitution with any person or generally, and
    2. uses, threatens to use or attempts to use violence, intimidation or coercion in relation to the person under that age

Proving obtaining services of a minor under s. 212(4) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit either:
    1. obtains for consideration the sexual services of a person, or
    2. communicates with anyone for the purpose of obtaining for consideration the sexual services of a person;
  5. the person is under the age of eighteen years; and
  6. the actions occur in any place
  1. R v Rodney, 1999 ABPC 12 (CanLII) at para 31
  2. R v Rodney, 1999 ABPC 12 (CanLII) at para 22

Interpretation of the Offence

Under s. 197, a "prostitute" "means a person of either sex who engages in prostitution"[1]

Under s. 197, a "place" "includes any place, whether or not (a) it is covered or enclosed, (b) it is used permanently or temporarily, or (c) any person has an exclusive right of user with respect to it;"

Section 4(5) states that "For the purposes of this Act, sexual intercourse is complete on penetration to even the slightest degree, notwithstanding that seed is not emitted."

  1. Definition repealed by 2014, c. 25

Procuring

"Procure" can have several meaning depending on the context. [1]

It is meant to be interpreted in its common sense meaning and is not a term of art. Interpreting the word as meaning "recruiting" can be valid. [2]

It can refer to "one who induces or causes a woman to have illicit sexual intercourse with another person".[3]

Procuring requires an active role by the accused. The actions should be a cause or inducement.[4]

There should be some "active persuasion" and not simply be a decision of the victim's own free will.[5]

Actual intercourse must have occurred to make out procuring.[6]

In order to procure the woman must not already be a prostitute.[7]

It is no defence for the victim to have consented to engaging in prostitution.[8] It is further no defence to argue that the victim was a prostitute before they attempted to procure them.[9]

Procuring a juvenile prostitute was found not to be a "serious personal injury offence".[10]

The term "procure" is interpreted as meaning "to cause, or to induce, or to have a persuasive effect upon the conduct that is alleged". It does not necessarily include “obtaining by care or effort” or “to bring about”.[11]

  1. R v Deutsch (1983), 5 CCC (3d) 41 (Ont.C.A.)(*no link) at p. 48-49 aff'd (1986), 27 CCC (3d) 385 (SCC), 1986 CanLII 21 (SCC), [1986] 2 SCR 2
  2. R v Deutsch at p. 403 (cited to SCC)
  3. R v Deutsch at p.48 (cited to ONCA)
  4. R v Barrie (1975), 25 CCC (2d) 216 (Ont. Co.Ct.) (*no link)
    R v Newman, 2009 NLCA 32 (CanLII) at paras 36 to 38
  5. R v Cline (1982), 65 CCC (2d) 214, 1982 ABCA 20 (CanLII)
  6. R v Gruba, [1969] 2 CCC 365 (BCCA) (*no link)
    R v Harder, 1980 ABCA 48 (CanLII) citing Gruba at para 4
  7. R v Cline
  8. R v Robinson, 1948 CanLII 79 (ON CA), (1948), 92 CCC 223 (Ont. C.A.)
  9. R v B., 2004 CanLII 36124 (ON CA) at para 51
    c.f. R v Cline, 1982 ABCA 20 (CanLII), (1982), 65 CCC (2d) 214 (Alta. C.A.)
  10. R v Burton, 2013 ONSC 3021 (CanLII)
  11. R v Newman, 2009 NLCA 32 (CanLII) at paras 35 to 39

Exercising Control (212(1)(h))

The Crown must prove that the accused exercised control, direction or influence over the victim.[1]

The person being controlled must be left with little choice. For example, their movements controlled and they are subject to rules of behaviour.[2]

Direction does not mean that the person has no "latitude or leeway".[3]

Influence is a less coercive behaviour than control and direction. It includes "any act exercised over a person with a view to aiding, abetting, or forcing her to prostitute herself".[4]

Coercion is not a necessary element to the offence where direction and influence has been established.[5]

There must be some personal gain for the accused.[6]

"Compelling" means to "cause or bring about by force, threats, or overwhelming pressure”[7]

The presumption in s. 212(3) does not apply to an offence under s. 212(1)(h).[8]

  1. see R c Perreault, 1996 CanLII 5641 (QC CA)
  2. Perreault cited in Pointejour Salomon c. R., 2011 QCCA 771 (CanLII) at para 55
  3. Pointejour Salomon at para 55
  4. Pointejour Salomon at para 55
  5. R v Martinez, 1994 CanLII 4480 (NL SCTD), [1994] N.J. No. 437 ("offence is made out by exercising direction and influence in terms of where to go, how much to charge, and how much to collect")
  6. R v Richard (1935), 63 CCC 366 (NBCA) (*no link) - woman got money for herself, acquitted
    R v Perreault
  7. R v D.L.W., 2013 BCSC 1327 (CanLII) at para 325
  8. R v Nicolaou, 2008 BCCA 300 (CanLII) at paras 55, 56

Living on Avails

Living on avails exists where the accused "must at least receive either in kind all or part of the female’s proceeds from prostituting herself or have those proceeds applied in some way to support his living".[1]

Indirect benefits from the practice of prostitution is not living on avails.[2]

"Living-on-the-avails" does not require the Crown to prove there was coercion.[3]

The Crown must prove that the accused "was in actual receipt of the proceeds to support his living". [4]

For a person to be "living on the avails" the accused must be doing so "parasitically".[5]

Merely receiving money from a prostitute does not amount to living on the avails. Otherwise, anyone giving a product or service to a prostitute is committing the offence.[6]

Section 212(1)(j) was found to be arbitrary, overbroad, and disproportionate to the provisions objectives and so violates s. 7 of the Charter.[7]

Living With Prostitute
Section 212(3) creates a presumption for those who are found to live in a common bawdy-house or lives with or is habitually in the company of a prostitute is living on the avails of prostitution. This section violates the presumption of innocence but is within a reasonable limit and is constitutionally valid.[8]

Where the accused is living with the prostitute, the crown must prove that "the living arrangement was other than a normal and legitimate one involving a sharing of expenses for mutual benefit, but rather one in which he was living parasitically."[9]

  1. R v Celebrity Enterprises Ltd. et. al. (1977), 41 CCC (2d) 540 (BCCA) (*no link)
  2. Celebrity Enterprises ("Indirect benefits resulting to him from her practicing prostitution are not avails of her prostitution")
  3. R v Barrow, 2001 CanLII 8550 (ON CA) at para 31
  4. R v K.R.B., 2004 ABCA 307 (CanLII) at para 7
  5. K.R.B. at para 55
    R v Bramwell, 1993 CanLII 1130 (BC CA), (1993), 86 CCC (3d) 418 at 433-434
    R v Downey 1992 CanLII 109 (SCC), (1992) 72 CCC (3d) 1 (S.C.C.) at p. 15, (“the target of [s. 212(1)(j)] is the person who lives parasitically off a prostitute's earnings.”)
  6. K.R.B. at para 61
    Bramwell at p. 432
  7. Canada (Attorney General) v Bedford, 2012 ONCA 186 (CanLII) aff'd at 2013 SCC 72 (CanLII)
  8. R v Downey, 1992 CanLII 109 (SCC), [1992] 2 SCR 10
  9. K.R.B. at para 7

Under-age Prostitutes

Soliciting under s.213 is not a lesser included offence to the offence under s. 212(4).[1]

It is not necessary that the prostitute solicited by the accused be a real person.[2]

  1. R v Amabile, 2000 BCCA 68 (CanLII), (2000), 143 CCC (3d) 270 (BCCA)
  2. R v Kerster, 2001 BCSC 230 (CanLII) at para 41 upheld at 2003 BCCA 246 (CanLII) (note this concerned an earlier version of s. 212(4))

Illicit Sexual Intercourse

Under s. 4(5), "sexual intercourse is complete on penetration to even the slightest degree, notwithstanding that seed is not emitted."[1]

  1. see as well use of s. 4(5) in Incest (Offence)

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 212(2), and (2.1)), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For general principles on sentence for sexual offences, see Sexual Offences

Maximum Penalties
Offences under s. 212. (1), (2), (2.1), and (4) are straight indictable. The maximum penalty is 10 years incarceration under s. 212(1), 5 years incarceration under s. 212(4), or 14 years incarceration under s. 212(2) or (2.1).

Minimum Penalties
For offences under under s. 212(4), minimum is 2 years and 5 years incarceration under s. 212(2.1) there is a mandatory minimum penalty of {{{2}}}.

Available Dispositions

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 212(1) N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 212(2.1), or (4) N/A X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png
s. 212(2) N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 212(2), (2.1) or (4) have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

For offences under s. 212(1), all dispositions are available. The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

Principles

The offences recognize that street prostitution often involves exploitation and degradation of women. In a basic sense this offence amounts to a form of slavery.[1]

General and specific deterrence are generally paramount for these offences.[2]

The prohibition on juvenile prostitution under s.212(4) intends to protect young persons from predators. These young persons find themselves in "desperate circumstances without family or financial support". They are often abused and in many cases their involvement in prostitution leads to addictions and psychological harm. [3]

Categories of Living on Avails
Certain cases have adopted three categories of the offence of living on the avails that establish ranges of sentence:[4]

  1. 4 to 5 years: the accused coerced the female into becoming or remaining a prostitute and exercised significant control;
  2. 2 to 3 years: The element of coercion is lacking but the woman is the accused's main source of income;
  3. 12 to 18 months: The lowest category of offence includes conduct where the offender receives money, but the relationship is not exploitative
  1. R v Cole, 2004 CanLII 58282 (QC CM) at para 25
    R v Downey, [1992] 2 SCR 10, 1992 CanLII 109 (SCC) (" In some ways the relationship is most closely analogous to slavery")
  2. R.v. Murray, 1995 ABCA 204 (CanLII), (1995) 165 A.R. 394 (Ont. C.A.)
  3. R v Aldea, 2005 SKQB 461 (CanLII) at para 28
  4. R v Miller, (1997) O.J. No. 2911 (*no link)
    R v Cole at para 28

Factors

Courts have considered factors relevant for procuring and prostitution related offences:[1]

  1. The degree of control imposed;
  2. The amount of money received and the extent to which the prostitute is allowed to retain the earnings;
  3. The age of the prostitute and their numbers;
  4. Any special vulnerability of the prostitutes;
  5. The working conditions of the prostitutes;
  6. The degree of planning and sophistication;
  7. The size of the operation;
  8. The duration of the exploitative conduct;
  9. The degree of violence;
  10. The extent to which inducements such as drugs or alcohol were employed by the pimp;
  11. The effect on the prostitute of the exploitation, and
  12. The extent to which the pimp demanded sexual favours himself from the prostitutes.
  1. most enumerated from R v Tang, 1997 ABCA 174 (CanLII), [1997] A.J. No. 460 (C.A.) and R v Miller, [1997] O.J. No. 3911 (Gen. Div.) (*no link)
    see also R c Tynes, 2010 QCCQ 11298 (CanLII)
    R v McPherson, 2013 ONSC 1635 (CanLII)

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
DNA Orders s. 212 (1)(i), (ii), (iii), or (iv)
SOIRA Orders s. 212 (1)(i), (2), (2.1), or (4)
  • On conviction under s. 212(1)(i), (2) or (2.1), as listed under s. 490.011(a), a SOIRA Order is mandatory as "designated offence" under s. 490.011(1)(a) regardless of Crown election
      • If there is a concurrent or prior conviction for a designated offence, the duration is life (s. 490.012(3))
      • Otherwise, the duration is 20 years as the offence has "maximum term of imprisonment for the offence is 10 or 14 years" (s. 490.013(2)(b))).
      • There is an option for early termination under s. 490.015 available after 10 years (if 20 year order) or 20 years (if life order).

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

  • On conviction under s. 212(4), as listed under s. 490.011(a), a SOIRA Order is mandatory as "designated offence" under s. 490.011(1)(a) regardless of Crown election
      • If there is a concurrent or prior conviction for a designated offence, the duration is life (s. 490.012(3))
      • Otherwise, the duration is 10 years as the offence was "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years".
      • There is an option for early termination under s. 490.015 available after 5 years (if 10 year order) or 20 years (if life order)

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

Section 161 Orders s. 212
  • If convicted under s. 212, the judge may make discretionary 161 Order.
Delayed Parole Order s. 212(2), (2.1) or (4)
  • Periods of imprisonment of 2 years or more for convictions under s. 212(2) or (2.1) or (4) are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".

General Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (15%, $50, or $100).

General Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

History

See also: List of Criminal Code Amendments

See Also

Related Offences

References