Keeping a Common Bawdy-house (Repealed Offence): Difference between revisions

From Criminal Law Notebook
← Older editNewer edit →
VisualWikitext
No edit summary
m Text replacement - "http\:\/\/canlii\.ca\/t\/7vf2\#sec([0-9][0-9][0-9]) " to "{{CCCSec|$1}} "
Line 137: Line 137:
<br>...<br>
<br>...<br>
R.S., 1985, c. C-46, s. 197; R.S., 1985, c. 27 (1st Supp.), s. 29; 2014, c. 25, s. 12.
R.S., 1985, c. C-46, s. 197; R.S., 1985, c. 27 (1st Supp.), s. 29; 2014, c. 25, s. 12.
|[http://canlii.ca/t/7vf2#sec197 CCC]
|[{{CCCSec|197}} CCC]
}}
}}


Revision as of 23:19, 12 February 2019


Keeping a Common Bawdy-house
s. 210(1), (2) of the Crim. Code
Election / Plea
Crown Election Indictment (210(1)) Summary (210(2))
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court only (210(1), (2))
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 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 2 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to keeping a common bawdy-house are found in Part VII of the Criminal Code relating to "Disorderly Houses, Gaming and Betting".

Pleadings
Template:PleadingsIndictableList
Offence
Section		 Offence
Type		 Crown Election Defence Election
s. 536(2)
s. 210(2) [assoc. with common bawdy-house] Summary Offence(s) N/A No

An offence under s. 210(1) is a straight indictable offence. An offence under s. 210(2) is a summary conviction offence.

Offences under s. 210(1) and (2) are absolute jurisdiction offences under s. 553(a) and so does not have a defence election of court. It must be tried by a provincial court judge.

Release
Offence(s) Appearance Notice
by Peace Officer
s. 497		 Summons
by Judge or Justice
s. 508(1), 512(1), or 788		 Release by
Peace Officer
on Undertaking
s. 498, 499, and 501		 Release By
a Judge or Justice
on a Release Order
s. 515 to 519		 Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act
s. 2 ID Crim. Act
s. 210(1) Template:ReleaseProfileOICorBail
s. 210(2) Template:ReleaseProfileAll

Template:ReleaseOICorBail

When charged under s. 210(2), the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

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 weapon, being 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)).

And, regardless of Crown election, if the offence alleged was one:

  • where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
  • where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
  • where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
Fingeprints and Photos

A peace officer who charges a person under s. 210(1) 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 Bans

For all criminal or regulatory prosecutions, 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. 210 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
Offence(s) Wiretap
Eligible
s. 183		 Dangerous Offender
Designated Offence
s. 752		 Serious Personal
Injury Offence
s. 752		 AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. xxx

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

Offence Wording

Keeping common bawdy-house

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.

Landlord, inmate, etc.

(2) Every one who

(a) is an inmate of a common bawdy-house,
(b) is found, without lawful excuse, in a common bawdy-house, or
(c) 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.

Notice of conviction to be served on owner

(3) Where a person is convicted of an offence under subsection (1), the court shall cause a notice of the conviction to be served on the owner, landlord or lessor of the place in respect of which the person is convicted or his agent, and the notice shall contain a statement to the effect that it is being served pursuant to this section.

Duty of landlord on notice

(4) Where a person on whom a notice is served under subsection (3) fails forthwith to exercise any right he may have to determine the tenancy or right of occupation of the person so convicted, and thereafter any person is convicted of an offence under subsection (1) in respect of the same premises, the person on whom the notice was served shall be deemed to have committed an offence under subsection (1) unless he proves that he has taken all reasonable steps to prevent the recurrence of the offence.
R.S., c. C-34, s. 193.


– CCC

Transporting person to bawdy-house

211. Every one who knowingly takes, transports, directs, or offers to take, transport or direct, any other person to a common bawdy-house is guilty of an offence punishable on summary conviction.
R.S., c. C-34, s. 194.


– CCC

Proof of the Offence

Proving keeping a common bawdy house under s. 210(1) should include:[1]

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. ☐ the culprit's conduct, by its nature, caused harm or presented a significant risk of harm to individuals or society
  5. ☐ the risk was in a way that undermined or threatened to undermine a value reflected in and formally endorsed by the Constitution or other fundamental laws by
    1. ☐ confronting members of the public with conduct that significantly interferes with their autonomy and liberty; or
    2. ☐ predisposing others to anti-social behaviour; or
    3. ☐ physically or psychologically harming persons involved in the conduct, and
  6. ☐ the harm or risk of harm is of a degree that is incompatible with the proper functioning of society.

Proving transporting person to bawdy-house under s. 211 should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. ☐ the culprit "takes, transports, directs, or offers to take, transport or direct, any other person"
  5. ☐ the destination is a "common bawdy-house"
  6. ☐ the act was done "knowingly"
  1. ↑ R v Labaye, 2005 SCC 80 (CanLII), [2005] 3 SCR 728, per McLachlin CJ, at para 62

Interpretation of the Offence

The categories of harm is not a closed list.[1]

  1. ↑ R v Labaye, 2005 SCC 80 (CanLII), [2005] 3 SCR 728, per McLachlin CJ

Keeping

For there be "keeping", it must be: [1]

  1. that the accused have some degree of control over the care and management of the premises, and
  2. that the accused participate to some extent..., in the "illicit" activities of the common bawdy-house.

The accused does not need to participate in the sex acts, rather only participate in the use of the house as a bawdy-house.[2]

Providing accommodations necessarily amounts to "keeping". [3]

  1. ↑ R v Corbeil, 1991 CanLII 96 (SCC), [1991] 1 SCR 830, per Lamer CJ
  2. ↑ Corbeil, ibid.
  3. ↑ R v McLellan, 1980 CanLII 330 (BC CA), per Nemetz CJ ("The provisions of accommodation is the essence of keeping")

"Common Bawdy-house"

Section 197(1) defines "common bawdy-house" as:

197(1) In this Part,
... “common bawdy-house” means, for the practice of acts of indecency, a place that is kept or occupied or resorted to by one or more persons;
...
R.S., 1985, c. C-46, s. 197; R.S., 1985, c. 27 (1st Supp.), s. 29; 2014, c. 25, s. 12.


– CCC

"Kept" refers to the "frequent or habitual activity". [1]

A common bawdy-house can include any fixed area where acts of prostitution occur. It can include parking lots.[2]

A massage parlour where the messages will include offers of masturbation may not be "houses of prostitution".[3]

  1. ↑ R v Rockert et al., 1978 CanLII 31 (SCC), [1978] 2 SCR 704, per Estey J
    R v Patterson, 1967 CanLII 22 (SCC), [1968] SCR 157, per Spence J
    R c Lahaie, 1990 CanLII 3271 (QC CA), per curiam
  2. ↑ R v Pierce (1982), 66 CCC (2d) 388 (Ont. C.A.), 1982 CanLII 2153 (ON CA), per MacKinnon CJ
  3. ↑ R v Ponomarev, 2007 ONCJ 271 (CanLII), per Chisvin J

"Place"

Evidence

Holdback of Disclosure

For offences under this section (s. 210 and 211), s. 278.2 prevents the Crown from disclosing any records attracting a "reasonable expectation of privacy" that relate "to a complainant or a witness" unless applied for through the process described in s. 278.3 to 278.91: see Production of Records for Sexual Offences. Should the privacy-holder agree to waive their privacy rights, the protected materials may be disclosed.

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
For general principles on sentence for sexual offences, see Sexual Offences
Maximum Penalties
Offence(s) Crown
Election		 Maximum Penalty
s. 210 [keeping common bawdy-house] N/A 2 years custody
s. 211 [assoc. with common bawdy-house] N/A 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)

Offences under s. 210 are straight indictable. The maximum penalty is 2 years incarceration. Offences under s. 211 are straight summary conviction offences. The maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

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. 210 and 211 N/A

For offences under s. 210 and 211, 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

Ranges

see also: Keeping a Common Bawdy-house (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
  • None
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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. NB: does not apply to summary offences.

See Also

References
v • e
 
Sexual Offences
Offences
Retrieved from "https://criminalnotebook.ca/index.php?title=Keeping_a_Common_Bawdy-house_(Repealed_Offence)&oldid=29411"