Solicitation (Offence)
| 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)) |
| 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) | 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) | 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 | Template:ReleaseProfileNoID |
When charged under s. 213, 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 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 |  |
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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.
– CCC
Proof of the Offence
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Proving stopping or impeding traffic under s. 213(1) should include:[1]
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Proving communicating to provide sexual services for consideration under s. 213(1.1) should include:
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- ↑ R v McLaughlin, 1992 Carswell Alta 628(*no CanLII links) at 14
- ↑ R v Head, 1987 CanLII 2823 (BC C.A.), (1987), 36 CCC (3d) 562 (BCCA), per Craig JA
- ↑ R v Pake (1995), 1995 ABCA 493 (CanLII), 103 CCC (3d) 524 at p. 529 (Alta. C.A.), per Foisy JA
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]
- ↑ R v Lawrence, 2002 ABPC 189 (CanLII), per Semenuk J, at para 19
- ↑ R v Searle (1994), 163 N.B.R. (2d) 123(*no CanLII links)
, at para 21 (N.B. Prov. Ct.)
Lawrence, supra at para 19. - ↑ R v Khalil, 2012 ABPC 93 (CanLII), per Semenuk J at para 75
- ↑
R v McLaughlin, 1992 Carswell Alta 628(*no CanLII links)
at 16
- ↑ R v Pake (1995), 1995 ABCA 493 (CanLII), 103 CCC (3d) 524 at p. 529 (Alta. C.A.), per Foisy JA at pp. 530-31
- ↑ R v Wasylyshyn, [1988] BCJ No. 3210(*no CanLII links)
{{at|8} (Co. Ct.) (QL)
Lawrence, supra at para 20
- ↑ Pake, supra 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.
– CCC
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
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 |  |
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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. |
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
See Also
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