Keeping a Common Bawdy-house (Repealed Offence)

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;

< Criminal Law/Sentencing
< Offences

Repealed September 19, 2019 (Bill C-75)

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

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)	Preliminary Inquiry
s. 210(1) [keeping common bawdy-house]	Indictable Offence(s)	N/A	No, not eligible under s. 553(1)	{{{4}}}
s. 210(2) [assoc. with common bawdy-house]	Summary Offence(s)	N/A	No	{{{4}}}

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) [keeping common bawdy-house]	Template:ReleaseProfileOICorBail
s. 210(2) [assoc. with common bawdy-house]	Template:ReleaseProfileAll

When charged under s. 210(1), (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] ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit's conduct, by its nature, caused harm or presented a significant risk of harm to individuals or society ☐ 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 ☐ confronting members of the public with conduct that significantly interferes with their autonomy and liberty; or ☐ predisposing others to anti-social behaviour; or ☐ physically or psychologically harming persons involved in the conduct, and ☐ 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: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit "takes, transports, directs, or offers to take, transport or direct, any other person" ☐ the destination is a "common bawdy-house" ☐ the act was done "knowingly"

↑ 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]

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

Keeping

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

that the accused have some degree of control over the care and management of the premises, and
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]

↑ R v Corbeil, 1991 CanLII 96 (SCC), [1991] 1 SCR 830, per Lamer CJ
↑ Corbeil, ibid.
↑ 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.
Repealed on September 19, 2019 with enactment of 2019, c. 25.

– 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]

↑ 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
↑ R v Pierce, 1982 CanLII 2153 (ON CA), (1982), 66 CCC (2d) 388 (Ont. C.A.), per MacKinnon CJ
↑ R v Ponomarev, 2007 ONCJ 271 (CanLII), per Chisvin J

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)