APPENDIX D NON-EXHAUSTIVE LIST OF GENERIC PROVISIONS WITHIN THE CRIMINAL CODE AVAILABLE TO PROTECT PROSTITUTES, CHILDREN AND YOUTH, AND COMMUNITIES
The majority of the Subcommittee believes that beyond the prostitution-related provisions (sections 210 to 213), a number of other Criminal Code offences offer protection to prostitutes from violence and exploitation, and to communities from various forms of nuisance related to prostitution. In terms of the protection of individuals selling sexual services, these offences include intimidation, theft, abduction and confinement, and various forms of assault. Minors receive additional protection from specific sexual exploitation and child abduction provisions. By contrast, communities are protected by public nuisance laws, including various disturbance and indecency laws, and those to combat organized crime. Below is an annotated list of Criminal Code offences that can be used to protect persons selling sexual services and communities. While this list is not exhaustive, it does provide an indication of the framework available beyond the prostitution-related provisions.
A. PERSONS SELLING SEXUAL SERVICES
- Uttering threats Section 264.1 describes the kinds of threats prohibited in criminal law. Any person who utters, conveys, or causes another person to receive a threat of death, or serious bodily harm is liable to a maximum sentence of five years’ imprisonment. A person who threatens to damage or destroy another person’s property or to kill or injure an animal belonging to another person is liable to a maximum sentence of two years’ imprisonment.
Section 264.1 has been used successfully in R. v. Patterson,1 in which the Ontario Court of Appeal upheld a 7 year sentence for a series of offences, including kidnapping, forcible confinement, procuring, living off the avails of prostitution, and uttering threats; in R. v. Bodnaruk,2 in which the Saskatchewan Court of Appeal sentenced the accused to 3 years’ imprisonment, including an order for DNA analysis, for a series of offences, including sexual assault, assault causing bodily harm, assault with a weapon, common assault, and uttering threats; in R. v. Graves,3 in which the Manitoba Court of Appeal upheld convictions for living on the avails of prostitution, robbery, assault, and uttering threats against an 18 year old worker; in R. v. Nest,4 in which the Alberta Court of Appeal upheld a conviction for sexual assault, uttering death threats, attempted anal intercourse, unlawful confinement, and choking during attacks on two prostitutes; in R. v. Hayes,5 in which the British Columbia Court of Appeal upheld a 5 year sentence for the attempted enslavement of a 19 year old woman; in R. v. Senior,6 in which the Supreme Court of Canada upheld a 16 year sentence for kidnapping, aggravated assault, assault with a weapon, uttering threats, use of a firearm, and living off the avails of prostitution; in R. v. Murray,7 in which the Alberta Court of Appeal upheld a 5 year sentence for living off the avails of prostitution, uttering threats, and assault causing bodily harm; in R. v. Barton,8 in which the accused was convicted of sexual assault, living off the avails of prostitution, and of uttering death threats, all committed with respect to a woman whom the accused caused to become a street level prostitute to provide him with money; and in R. v. Mooney,9 in which the British Columbia Court of Appeal upheld an 8 year sentence for sexual assault, robbery, and uttering a threat.
Intimidation Section 423 creates the offence of intimidation, which is committed where a person is intending to compel someone to abstain from doing something he has a right to do, or to do something that he has the right to abstain from doing, and wrongfully and without authority uses violence or threats of violence against the person or his spouse or children, injures his property, intimidates or attempts to intimate the person or a relative by threats of violence or injury to property, persistently follows the person, hides or deprives the person of the use of his property, or watches the residence, workplace or other place where the person happens to be. The maximum sentence for this offence is five years’ imprisonment.
Section 423 was used successfully in R. v. Yu,10 in which the Alberta Court of Appeal upheld a conviction for the kidnapping, intimidation, and assault of a 40 year old woman who had been a prostitute.
- Theft Section 322 creates the offence of theft. Any person who fraudulently takes something with the intention of depriving the rightful owner of its use, or who moves something with the intent to steal it, is committing theft. The maximum sentence for this offence is 10 years’ imprisonment where the object is valued at over $5,000, and 2 years’ imprisonment where the object is valued at less than $5,000.
Section 322 was used successfully in R. v. Boivin,11 in which the British Columbia Court of Appeal upheld a conviction for sexual assault, unlawful confinement, and theft from a prostitute.
- Robbery Section 343 creates the offence of robbery. Any person who steals and uses violence or threats of violence to another person is committing robbery. The maximum sentence for this offence is life imprisonment.
Section 343 has been used successfully in R. v. Gregory,12 in which the British Columbia Court of Appeal upheld a conviction for extortion and robbery; in R. v. Roper,13 in which the Ontario Court of Appeal upheld a conviction for robbery and sexual assault of a 15 year old girl who had been a prostitute, but who was not working as such at the time of this offence; in R. v. Omer,14 in which the Manitoba Court of Appeal upheld a six month sentence for robbery in conjunction with another conviction for living off the avails of prostitution; in R. v. Graves; and in R. v. Mooney.
Extortion Section 346 creates the offence of extortion, which encompasses any person who, without reasonable justification or excuse, and with intent to obtain anything, induces or attempts to induce another person by means of threats, accusations, menaces or violence, to do anything or cause anything to be done. The maximum sentence for this offence is life imprisonment.
Section 346 has been used successfully in R. v. Yews,15 in which the British Columbia Court of Appeal upheld a low sentence of two years less a day on a conviction for sexual assault and extortion against two young prostitutes, one of whom was pregnant; in R. v. Allan,16 in which the Ontario Court of Appeal imposed a sentence of three years’ imprisonment for extortion, and two year’s less a day (concurrent) for forcible confinement and living off the avails of prostitution; in R. v. Hayes; in R. v. Gregory; in R. v. Patterson; and in R. v. Schnepf.
3. Abduction and confinement:
Kidnapping and forcible confinement Section 279 creates the offences of kidnapping and forcible confinement. Any person who kidnaps another person against his or her will, with intent to confine him or her, to cause him or her to be sent out of Canada, or to hold him or her for ransom or to service, is liable to life imprisonment. Any person who confines, imprisons, or forcibly seizes another person without lawful authority is liable to up to 10 years’ imprisonment. As well, evidence that the victim did not resist does not constitute a defence, unless the accused proves that the failure to resist was not caused by threats, duress, or force.
Section 279 has been used successfully in R. v. Niedermier,17 in which the British Columbia Court of Appeal upheld a conviction for sexual assault, aggravated assault, assault with a weapon, unlawful confinement, and attempting to choke a victim to assist in unlawful confinement; in R. v. Ford,18 in which the Ontario Court of Appeal upheld concurrent sentences of five years for confinement and aggravated assault against a pimp for his actions against a prostitute under his control; in R. v. McDonell,19 in which the Manitoba Court of Appeal imposed a nine month sentence for unlawful confinement; in R. v. Patterson; in R. v. Senior; in R. v. Yu; in R. v. Boivin; in R. v. Allan; and in R. v. Nest.
4. Trafficking in Persons
Section 279.01 lays out the offence of trafficking in persons, defined as the recruitment, transport, transfer, receipt, concealment or harbouring of a person, or the exercise of control, direction or influence over the movements of a person, for the purpose of exploitation. A victim’s consent to trafficking is never a valid defence because of the exploitation that is inherent in the trafficking offence. Exploitation is defined in section 279.04 as any situation where a person exploits another by causing them to provide, or offer to provide, labour or a service by engaging in conduct that could reasonably be expected to cause the other person to fear for their safety or the safety of someone known to them if they fail to comply. This primary trafficking offence is punishable with a maximum of 14 years imprisonment, or life imprisonment under aggravated circumstances.
Section 279.02 prohibits a person from benefiting economically from trafficking and carries a maximum penalty of 10 years’ imprisonment.
Section 279.03 outlaws the withholding or destroying of identity, immigration, or travel documents to facilitate trafficking in persons, and carries a maximum penalty of five years’ imprisonment.
Sections 279.01 to 279.03 came into force in November 2005 and have yet to be used in court.
5. Physical Harm
- Bodily harm Section 269 creates the offence of unlawfully causing bodily harm. Any person who causes hurt or injury to a person that interferes with the health or comfort of that person and that is more than merely transient or trifling in nature is guilty of unlawfully causing bodily harm. The maximum sentence for this offence is 10 years’ imprisonment.
- Assault Sections 265 to 268 establish the offence of assault to apply force intentionally to another person, or to attempt or threaten to do so. The Code also considers assault to encompass situations in which a person stops another while openly wearing a weapon. It is important to note that consent is not a defence to a charge of assault if the victim submitted because force was applied or was threatened to be applied to the victim or another person, or as a result of fraud or the exercise of authority by the accused. The maximum sentence for basic assault is five years’ imprisonment. However, a person who commits assault while using or carrying a weapon, or who causes hurt or injury that is not transient or trifling in nature and interferes with the complainant’s health or comfort, is liable to a maximum sentence of 10 years’ imprisonment. Finally, a person who wounds, disfigures, or endangers the life of a complainant is guilty of aggravated assault and faces a maximum sentence of 14 years’ imprisonment.
Sections 265 to 268 have been used successfully in R. v. Caine,20 in which the Nova Scotia Court of Appeal upheld a conviction for attempting to procure two women, and for assault against one of those women, and sexual assault against the other; in R.v. Grouse,21 in which the accused was convicted of living off the avails of prostitution and procurement, as well as assault causing bodily harm; in R. v. Bodnaruk; in R. v. Hayes; in R. v. Senior; in R. v. Yu; in R. v. Murray; in R. v. Niedermier; in R. v. Ford; in R. v. Graves; and in R. v. Murray.
Sexual assault Sections 271 to 273 lay out the offence of sexual assault an assault which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. Sexual assault is punishable with a maximum sentence of five years’ imprisonment. However, the sentence increases for sexual assault with a weapon maximum 14 years’; and aggravated sexual assault maximum life imprisonment.
Sections 271 to 273 have been used successfully in R. v. James,22 in which the Nova Scotia Court of Appeal upheld a conviction for various weapons, prostitution, and sexual assault related offences; in R. v. Bagot,23 in which the Manitoba Court of Appeal upheld the 12 year sentence for 3 counts of sexual assault; in R. v. Adams,24 in which the Supreme Court of Canada upheld a publication ban on the name of the complainant who was under 18 and allegedly the victim of a sexual assault; in R. v. Barton; in R. v. Bodnaruk; in R. v. Boivin; in R. v. Yews; in R. v. Nedermier; in R. v. Caine; in R. v. Mooney; in R. v. Nest; and in R. v. Roper.
1. Sexual exploitation
- Removal of a child from Canada Section 273.3 makes it an offence to do anything for the purpose of removing a child from Canada with the intention of committing a listed sexual offence. The prohibited age specific to the particular offence would apply. The maximum sentence for this offence is five years’ imprisonment.
Non-parental child abduction Section 280 makes it an offence for anyone, without lawful authority, to cause an unmarried person under 16 to be taken from the possession of a parent or guardian, without that parent or guardian’s consent. The maximum sentence for this offence is 5 years’ imprisonment. Finally, section 281 creates the offence of abduction of a person under 14 when anyone other than the parent or guardian takes, entices away, conceals, detains, receives, or harbours a person under 14, with the intention of depriving the parent or guardian of possession of that person. The maximum sentence for this offence is 10 years’ imprisonment.
- Cause disturbance Section 175 creates the offence of causing a disturbance, including fighting, indecent exhibition, loitering, and other public nuisance activities. A person who is not in a dwelling house causes a disturbance when, near a public place, that person fights, screams, shouts, swears, sings, or uses insulting or obscene language; is drunk; or impedes or molests other people. One can also cause a disturbance by exposes an indecent exhibition in a public place, loiters in a public place, or obstructs persons in a public place. Finally, a person is guilty of disturbing the peace who, through disorderly conduct in a public place, disturbs the occupants of a dwelling house. The maximum sentence for this offence is six months’ imprisonment.
- Loitering Section 177 creates the offence of loitering at night near a house on another person’s property. The maximum sentence for this offence is six months’ imprisonment.
- Common nuisance Section 180 creates the offence of common nuisance. A person is guilty of creating a common nuisance where he or she endangers the lives, safety, health, property, or comfort of the public, or obstructs the public in the exercise of any right. The maximum sentence for this offence is two years’ imprisonment.
Criminal harassment Section 264 creates the offence of criminal harassment. A person is guilty of criminal harassment who repeatedly follows or communicates with an individual or who engages in threatening conduct towards that person or his or her family, such that the individual reasonably fears for their safety or the safety of anyone known to them. The maximum sentence for this offence is 10 years’ imprisonment.
- Indecent exhibition Section 173 creates the offence of committing an indecent act in a public place, or in any place if there is intent to insult or offend any person. The maximum sentence for this offence is six months’ imprisonment.
Nudity Section 174 creates the offence of nudity. A person is guilty of nudity who, without lawful excuse, is dressed so as to offend public decency or order in a public place, or is nude and exposed to public view while on any private property, including his or her own. The maximum sentence for this offence is six months’ imprisonment, but no proceeding may be commenced without the consent of the Attorney General.
The generic Criminal Code provisions available to protect the communities surrounding prostitutes have proven unsuccessful, primarily because police seem both unaware of,28 and unwilling to use these provisions due to negative rulings in the past. Faced with dubious cases of actual public nuisance caused by prostitution, courts have been wary extending interpretation of these generic nuisance provisions to cover situations involving prostitution. As a result of these narrow interpretations, the nuisance provisions have been of limited value to police in dealing with street prostitution.29 One of the only times that a generic public nuisance provision has proven successful with respect to prostitution-related activities is in R. v. Gowan,30 in which the Ontario Court of Justice convicted the accused of indecent exhibition.
3. Organized Crime
Section 467.11 creates the offence of knowingly participating in or contributing to any activity of a criminal organization for the purpose of enhancing the ability of the criminal organization to facilitate or commit an offence. The maximum sentence for this is five years’ imprisonment.
Section 467.12 creates the offence of committing an indictable offence for the benefit of, at the direction of, or in association with a criminal organization. The maximum sentence for this offence is 14 years’ imprisonment.
Section 467.13 makes it an offence to take leadership in a criminal organization for a member of the criminal organization to knowingly instruct any person to commit an offence for the benefit or, at the direction of, or in association with a criminal organization. The maximum sentence for this offence is life imprisonment.
|1 ||(2003), 64 O.R. (3d) 275 and  O.J. No. 3189 (Ont. C.A.) — The appellant was convicted of kidnapping, terrorizing, abusing, and forcing a 19-year-old woman into prostitution for a week. The victim was kidnapped in Toronto and forced under threat of harm to herself and her family to work there as a prostitute and stripper. Her earnings were seized, and she was placed under constant surveillance, tortured with cigarette burns, and forced to perform humiliating and degrading acts to demonstrate her loyalty to the accused. The accused worked with two other individuals to control the victim until she escaped.|
|2 ||(2002), 217 Sask. R. 89 (Sask. C.A.) He had beaten and threatened serious harm to three Saskatoon prostitutes after refusing to pay for their services.|
|3 || M.J. No. 413 (Man. C.A.) The sentences imposed were 18 months consecutive for robbery, a further 6 months for uttering threats, and a 1 month concurrent sentence for a minor assault.|
|4 ||(1999), 228 A.R. 369 (Alta. C.A.).|
|5 || B.C.J. No. 2752 (B.C.C.A.) — The appellant was convicted of extortion, assault, and uttering threats for attempting to have his girlfriend act as a prostitute, assaulting her when she refused, and charging her a “leaving fee” of $1,000.|
|6 || 2 S.C.R. 288 The appellant had carried out a brutal and lengthy kidnapping of his former girlfriend who was also forced to work as a prostitute under his direction.|
|7 ||(1995), 169 A.R. 307 and (1995) 165 A.R. 394 (Alta. C.A.) — The court considered as aggravating factors, the fact that the charges covered several offences involving four different victims, that one of those victims was a “vulnerable and fragile young woman who had not previously acted as a prostitute”, and that the accused used violence to control those who interfered with his prostitution business.|
|8 ||(1994), 129 N.S.R. (2d) 395 (N.S.C.A.) He was sentenced to three years’ consecutive imprisonment for each of the sexual assault and pimping charges, and two years’ concurrent for the death threats, all to be served concurrently with a three year sentence for living off the avails of prostitution.|
|9 || B.C.J. No. 523 and  B.C.J. No. 1448 (B.C.C.A.) — The accused had picked up a prostitute in the Downtown Eastside, taken her to an isolated parking lot, and “viciously sexually assaulted” and robbed her, all the while accompanied by numerous threats of death or bodily harm whenever she resisted.|
|10||(2002), 171 C.C.C. (3d) 90 (Alta. C.A.).|
|11|| B.C.J. No. 910 and  B.C.J. No. 1686 (B.C.C.A) — The appellant was sentenced to 4 years, 1 year, and 90 days respectively. The appellant was a member of the Vancouver City Police Department who picked up a 19 year old prostitute who was seven months pregnant in the Downtown Eastside. He held her in the car with him for an entire night, forcing her to perform sexual acts, and taking some of her clothes, jewellery, money, and a walkman.|
|12|| B.C.J. No. 1100 (B.C.C.A.) — The appellant was a regular of the Downtown Eastside, who had sexual intercourse with a prostitute in exchange for cocaine. When she later sold drugs for him, he demanded money from her, threatening to kill her and her children.|
|13||(1997), 32 O.R. (3d) 204 (Ont. C.A.) — The court refused to allow defence counsel to cross-examine the complainant on the alleged fact that she was selling sexual services at the street level at the time of the offence, as the credibility of that argument was unsatisfactory, the probative value was substantially outweighed by its prejudicial effect, and the jury already had substantial evidence of the complainant’s criminal record for prostitution-related offences, among others.|
|14||(1990), 66 Man. R. (2d) 45 (Man. C.A.) — Two prostitutes who had been working in a massage parlour, began sexual services under the appellants’ direction. The appellants’ gave the prostitutes a knife and instructed them to rob another prostitute. The money stolen was subsequently turned over to the appellants.|
|15|| B.C.J. No. 2675 (B.C.C.A) — The sentence was low to enhance the accused’s chances for rehabilitation and because of the mitigating factors surrounding his “background of the most appalling misery” — the accused was born a drug—addicted baby to a 12 year old mother who shared the same father as the accused. The accused’s mother supported herself, her child, and her drug habit through prostitution.|
|16|| O.J. No. 3432 (Ont. C.A.) The appellant ran an escort agency and, in order to get more money from a particular account, locked a prostitute in a room and assaulted her.|
|17||(2005), 193 C.C.C. (3d) 199 (B.C.C.A.) — The accused traded crack cocaine for sexual services with five prostitutes, one of whom he tied to a chair for more than a day while he had sexual intercourse and assaulted her and burned her with a cigarette; another of whom he told she could not leave, assaulted and sexually assaulted her, and tied a telephone cord around her neck and tied her hands; and another whom he assaulted, and put a tie around her neck and hung her over a door.|
|18||(1993), 15 O.R. (3d) 173 (Ont. C.A.).|
|19||(1991), 73 Man. R. (2d) 305 (Man. C.A.) After a prostitute willingly entered the accused’s van, the accused drove out of the city to a motel. Fearing for her safety, the prostitute jumped out of the moving van and sustained injuries, however, she only managed to escape when the accused was absent.|
|20||(1996), 156 N.S.R. (2d) 74 (N.S. C.A.).|
|21||(1994), 71 O.A.C. 79 (Ont. C.A.) — He had exercised total control over the victim for approximately three years, and obtained more than $60,000 from her prostitution activities. Assaults inflicted upon the victim were prolonged and brutal, and included beating her while she was pregnant, attempting to drown her in the bathtub, and burning her with a cigarette and curling iron. The accused was given a 4 year concurrent sentence for the three prostitution offences, and a 5 year consecutive sentence for the assault causing bodily harm — particularly given that the victim was in a state of near-slavery, and brutalized mercilessly for three years.|
|22|| N.S.J. No. 40 (N.S.C.A.) — The accused became involved with a 15 year old deaf girl. He first got her addicted to crack cocaine, and then made her pay for it through prostitution, threatening her and her family with violence if she did not obey. He also subjected her to various forms of sexual assault.|
|23||(2000), 145 Man. R. (2d) 260 (Man. C.A.) — Two of those offences involved young prostitutes, who originally agreed to perform sex acts, but were then driven to a remote location, threatened, physically assaulted, and gang-raped.|
|24|| 4 S.C.R. 707 — During the course of the trial, the trial judge discovered that the complainant was sexually exploited through prostitution, and ultimately dismissed the charges because neither the complainant nor accused were credible.|
|25|| B.C.S.C. 1661 (B.C.S.C.) — The accused had been running a juvenile prostitution ring from his house with numerous girls who had been living in foster homes and on the street.|
|26||(2004), 192 C.C.C. (3d) 432 (N.S.C.A.) — The accused had instructed his daughter how to perform sexual acts in order to exploit her through prostitution. He took photographs and videotapes of his daughter and other female children engaging in sexual activities for payment by clients, which he live streamed onto the Internet. He was sentenced to three years and eight months. Although the Court of Appeal felt that this was an extremely minimal penalty for the crimes committed, mitigating factors included the accused’s early intention to file a guilty plea to spare the witnesses the pressure of testifying.|
|27||(1990), 44 O.A.C. 143 (Que. C.A.) — The accused lived on the avails of prostitution of many homeless girls, and retained more than half of the earnings of this particular complainant. He threatened the victim, and warned her to change her testimony. He was sentenced to two years’ imprisonment for sexual exploitation, five years for living off the avails of prostitution of a minor, and 3 years for procuring a minor — to be served concurrently with time he was already serving for other offences.|
|28||Kevin Vickers, Director General of the National Contract Policing Branch, Community, Contract and Aboriginal Policing Services, Royal Canadian Mounted Police, testimony before the Subcommittee, April 13, 2005.|
|29||Federal-Provincial-Territorial Working Group on Prostitution, p. 63.|
|30|| Carswell Ont 1748 (Ont. C.J. Prov. Div) She had walked down a commercial public street fondling her naked breasts, making suggestive comments and leaning into passing cars. The court found that the purpose of the accused’s acts was prostitution.|