Solicitation (Offence)

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Solicitation
s. 213 of the Crim. Code
Election / Plea
Crown Election Summary
summary proceedings must initiate within 6 months of the offence (786(2))
Jurisdiction Prov. Court only
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary 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)
Minimum None
Maximum six months jail and/or a $5,000 fine
Reference
Offence Elements
Sentence Digests


Overview

Offences relating to solicitation are found in Part VII of the Criminal Code relating to "Disorderly Houses, Gaming and Betting".

Pleadings

Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 213(1) [sex work impeding traffic] Summary Offence(s) No No
s. 213(1.1) [sex work near children] Summary Offence(s) No No

Offences under s. 213(1) and (1.1) are straight summary conviction offence. The trial must be held in provincial court.

Release

Offence(s) Attendance Notice
Without Arrest

s. 496
Summons
Without Arrest
s. 497
Release By
Arresting Officer
On Attendance Notice
s. 497
Release By
Officer-in-Charge
On a Promise to Appear
Undertaking or Recognizance
s. 498
Release By
a Judge or Justice
on a PTA, Undertaking or Recog.

s. 515
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 213 OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

When charged under s. 213, the accused can be given an attendance notice without arrest under s. 496 or a summons. If arrested, he 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. He can also be released by a justice under s. 515.

Publication Bans
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.

Section s. 213 offences permit a judge to order a discretionary publication ban for sexual offences under s. 486.4 that protects "information that could identify the victim or a witness". Where the witness is under the age of 18 or if in relation to a victim, the order is mandatory under s. 486.4(2).

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

Offence Wording

Under the header of "Offences in Relation to Offering, Providing or Obtaining Sexual Services for Consideration", s. 213 states:

Stopping or impeding traffic
213. (1) Everyone is guilty of an offence punishable on summary conviction who, in a public place or in any place open to public view, for the purpose of offering, providing or obtaining sexual services for consideration,

(a) stops or attempts to stop any motor vehicle; or
(b) impedes the free flow of pedestrian or vehicular traffic or ingress to or egress from premises adjacent to that place.
(c) [Repealed, 2014, c. 25, s. 15]

Communicating to provide sexual services for consideration
(1.1) Everyone is guilty of an offence punishable on summary conviction who communicates with any person — for the purpose of offering or providing sexual services for consideration  —  in a public place, or in any place open to public view, that is or is next to a school ground, playground or daycare centre.


...
R.S., 1985, c. C-46, s. 213; R.S., 1985, c. 51 (1st Supp.), s. 1; 2014, c. 25, s. 15.


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Proof of the Offence

Proving stopping or impeding traffic under s. 213(1) should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. stop, attempt to stop, communicate, or attempt to communicate with any person;[2]
  5. do so in a public place or in any place open to public view;
  6. do so for purpose or engaging in prostitution or obtaining sexual services.[3]

Proving communicating to provide sexual services for consideration under s. 213(1.1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "communicates" with a person;
  5. the prohibited conduct is "for the purpose of offering or providing sexual services for consisderation";
  6. the prohibited conduct was in a "public place" or "in any place open to public view"; and
  7. the prohibited conduct was at or "next to a school ground, playground or daycare centre"
  1. R v McLaughlin, 1992 Carswell Alta 628(*no CanLII links) at 14
  2. R v Head 1987 CanLII 2823 (BC C.A.), (1987), 36 CCC (3d) 562 (BCCA)
  3. R v Pake (1995), 1995 ABCA 493 (CanLII), 103 CCC (3d) 524 at p. 529 (Alta. C.A.)

Interpretation of the Offence

"Communication"

There is no requirement that specific sexual services or money to be paid be mentioned. Context is inferred from the context of the communication: [1]

There is no requirement in law for an actual agreement to be reached between the prostitute and the customer. Shopping for sex may constitute an offence. [2]

It is not enough to prove that there was a conversation which dealt with sexual services of a prostitute. It cannot be simply for a collateral purpose. [3] The prohibited purpose must be proven beyond a reasonable doubt.[4]

It must be established that the accused had an intention to engage in prostitution or to obtain the sexual services of a prostitute; this intention may be inferred from the circumstances. The court looks at the intent at the time of the conversation.[5]

Communication for a collateral or indirect purpose (such as a prostitute stopping a taxi to ask for transportation to a well-known downtown location or a prostitute asking a pharmacist for a package of condoms) does not constitute the prohibited purpose.[6]

The offence is complete at the time of the communication occurs assuming there is the requisite intent.[7]

  1. R v Lawrence 2002 ABPC 189 (CanLII) at para 19
  2. R v Searle (1994), 163 N.B.R. (2d) 123(*no CanLII links) at para 21 (N.B. Prov. Ct.)
    R v Lawrence, supra at para 19.
  3. R v Khalil, 2012 ABPC 93 (CanLII) at para 75
  4. R v McLaughlin, 1992 Carswell Alta 628(*no CanLII links) at 16
  5. R v Pake (1995), 1995 ABCA 493 (CanLII), 103 CCC (3d) 524 at p. 529 (Alta. C.A.) ibid at pp. 530-31
  6. R v Wasylyshyn, [1988] BCJ No. 3210(*no CanLII links) at para 8 (Co. Ct.) (QL)
    R v Lawrence, supra at para 20
  7. R v Pake, supra, Foisy, J.A., at pp. 530-531

"Public Place"

213
...
Definition of “public place”
(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.
R.S., 1985, c. C-46, s. 213; R.S., 1985, c. 51 (1st Supp.), s. 1; 2014, c. 25, s. 15.


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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
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

Maximum Penalties

Offence(s) Crown
Election
Maximum Penalty
s. 213(1) [sex work impeding traffic] N/A six months jail and/or a $5,000 fine
s. 213(1.1) [sex work near children] N/A six months jail and/or a $5,000 fine

Offences under s. 213(1) and (1.1) are straight summary conviction offences. The maximum penalty is six months jail and/or a $5,000 fine.

Minimum Penalties
These offences have no mandatory minimum penalties.

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. 213(1) and (1.1) N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

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.

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

  • None

General Sentencing Orders

Order Conviction Description
Non-communication order under s. 743.21 any while offender in custody.
Restitution Orders any a discretionary Order on application under s. 738, 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 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 if before.

General Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Weapons and 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.

History

See also: List of Criminal Code Amendments

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

(a) stops or attempts to stop any motor vehicle,
(b) impedes the free flow of pedestrian or vehicular traffic or ingress to or egress from premises adjacent to that place, or
(c) 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.

Definition of “public place”
(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.

R.S., 1985, c. C-46, s. 213; R.S., 1985, c. 51 (1st Supp.), s. 1.


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See Also