Solicitation (Offence)

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Solicitation
s. 213 of the Crim. Code
Election / Plea
Crown Election	Summary summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction	Prov. Court only
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)
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)
s. 213(1.1) [sex work near children]	Summary Offence(s)

Offences under s. 213(1) [sex work impeding traffic] and s. 213(1.1) [sex work near children] are straight summary conviction offence. The trial must be held in provincial court.

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. 213(1) [sex work impeding traffic] or s. 213(1.1) [sex work near children]					(summary offence)

When charged under s. 213(1) [sex work impeding traffic] or s. 213(1.1) [sex work near children] , 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.

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. 213(1) [sex work impeding traffic] or s. 213(1.1) [sex work near children] 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. 213(1) [sex work impeding traffic] or s. 213(1.1) [sex work near children]

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.

[omitted (2)]
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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Draft Form of Charges

		Pre-ambles
		"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section	Subject of Offence	Draft Wording
		"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving stopping or impeding traffic under s. 213(1) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ stop, attempt to stop, communicate, or attempt to communicate with any person; ☐ do so in a public place or in any place open to public view; ☐ do so for purpose or engaging in prostitution or obtaining sexual services.

Proving communicating to provide sexual services for consideration under s. 213(1.1) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit "communicates" with a person; ☐ the prohibited conduct is "for the purpose of offering or providing sexual services for consisderation"; ☐ the prohibited conduct was in a "public place" or "in any place open to public view"; and ☐ the prohibited conduct was at or "next to a school ground, playground or daycare centre"

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:

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.

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. The prohibited purpose must be proven beyond a reasonable doubt.

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.

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.

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

"Public Place"

213
[omitted (1) and (1.1)]

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.

– CCC

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Evidence

Holdback of Disclosure

For offences under this section (s. 213), 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

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

Offence(s)	Victim Notice of Agreement s. 606(4.1) [SPIO]	Victim Queried for Interest in Agreement s. 606(4.2) [5+ years]	Victim Notice for Restitution s. 737.1	Victim Notice of Impact Statement s. 722(2)
s. x [x]

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

Maximum Penalties

Offence(s)	Crown Election	Maximum Penalty
s. 213(1) [sex work impeding traffic]	N/A	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 213(1.1) [sex work near children]	N/A	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)

Offences under s. 213(1) and (1.1) 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. 213(1) and (1.1)	N/A

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

Offence-specific Orders

• None

General Sentencing Orders

Order	Conviction	Description
Non-communication order under s. 743.21	any	A discretionary order prohibiting the offender from communicating with named persons while he is 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 (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 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.

Record Suspensions and Pardons

Convictions under s. 213 are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

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.

– CCC