Court File No.: 34788
IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)
BETWEEN: ATTORNEY GENERAL OF CANADA
Appellant / Respondent on Cross-Appeal (Appellant in Appeal)
- and -
TERRI JEAN BEDFORD, AMY LEBOVITCH AND VALERIE SCOTT
Respondents / Appellants on Cross-Appeal (Respondents in Appeal)
- and -
ATTORNEY GENERAL OF QUÉBEC/ PROCUREUR GÉNÉRAL DU QUÉBEC
PIVOT LEGAL SOCIETY, DOWNTOWN EASTSIDE SEX WORKERS UNITED AGAINST VOILENCE SOCIETY AND PACE SOCIETY;
SECRETARIAT OF THE JOINT UNITED NATIONS PROGRAMME ON HIV/AIDS;
THE BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION;
THE EVANGELICAL FELLOWSHIP OF CANADA;
CANADIAN HIV/AIDS LEGAL NETWORK, THE BRITISH COLUMBIA CENTRE FOR EXCELLENCE IN HIV/AIDS and HIV & AIDS LEGAL CLINIC ONTARIO;
WOMEN’S COALITION FOR THE ABOLITION OF PROSTITUTION;
CHRISTIAN LEGAL FELLOWSHIP, CATHOLIC CIVIL RIGHTS LEAGUE and REAL WOMEN OF CANADA;
THE DAVID ASPER CENTRE FOR CONSTITUTIONAL RIGHTS;
L’INSTITUT SIMONE DE BEAUVOIR;
AWCEP ASIAN WOMEN FOR EQUALITY SOCIETY, operating as ASIAN WOMEN COALITION ENDING PROSTITUTION; and
ABORIGINAL LEGAL SERVICES OF TORONTO INC.
Interveners AND BETWEEN: ATTORNEY GENERAL OF ONTARIO
Appellant / Respondent on Cross-Appeal (Appellant in Appeal)
- and -
TERRI JEAN BEDFORD, AMY LEBOVITCH AND VALERIE SCOTT
Respondents / Appellants on Cross-Appeal (Respondents in Appeal)
- and -
ATTORNEY GENERAL OF QUÉBEC/ PROCUREUR GÉNÉRAL DU QUÉBEC
PIVOT LEGAL SOCIETY, DOWNTOWN EASTSIDE SEX WORKERS UNITED AGAINST VOILENCE SOCIETY AND PACE SOCIETY;
SECRETARIAT OF THE JOINT UNITED NATIONS PROGRAMME ON HIV/AIDS;
THE BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION;
THE EVANGELICAL FELLOWSHIP OF CANADA;
CANADIAN HIV/AIDS LEGAL NETWORK, THE BRITISH COLUMBIA CENTRE FOR EXCELLENCE IN HIV/AIDS and HIV & AIDS LEGAL CLINIC ONTARIO;
WOMEN’S COALITION FOR THE ABOLITION OF PROSTITUTION;
CHRISTIAN LEGAL FELLOWSHIP, CATHOLIC CIVIL RIGHTS LEAGUE and REAL WOMEN OF CANADA;
THE DAVID ASPER CENTRE FOR CONSTITUTIONAL RIGHTS;
L’INSTITUT SIMONE DE BEAUVOIR;
AWCEP ASIAN WOMEN FOR EQUALITY SOCIETY, operating as ASIAN WOMEN COALITION ENDING PROSTITUTION; and
ABORIGINAL LEGAL SERVICES OF TORONTO INC.
Interveners
FACTUM OF THE RESPONDENT, THE ATTORNEY GENERAL OF CANADA, ON CROSS APPEAL (pursuant to Rule 43(1)(b) of the Supreme Court Rules) Counsel for the Appellant Agent for the Appellant
Department of Justice William F. Pentney Ontario Regional Office Department of Justice The Exchange Tower Deputy Attorney General of Canada 130 King Street West East Memorial Building Suite 3400, Box 36 234 Wellington Street Toronto, Ontario M5X 1K6 Ottawa, Ontario K1A 0H8
Per: Michael H. Morris Per: Christopher Rupar
Tel: (416) 973-9704 Tel: 613-941-2351 Fax: (416) 973-0809 Fax: 613-954-1920
Email: [email protected] E-mail: [email protected]
REGISTRAR SUPREME COURT OF CANADA 301 Wellington Street Ottawa, ON K1A 0J1
Jamie Klukach Robert E. Houston, Q.C. Christine Bartlett-Hughes Burke-Robertson Megan Stephens Barristers & Solicitors Ministry of the Attorney General 200-441 MacLaren Street 720 Bay Street, 10th floor Ottawa, ON K2P 2H3 Toronto, Ontario M7A 2S9
Tel: (416) 326-2351 Tel: 613-566-2058 Fax: (416) 326-4656 Fax: 613-235-4430 Email: [email protected] Email: [email protected]
Counsel for the Appellant in Agent for the Appellant in Appeal/Intervener, Appeal/Intervener, the Attorney General of the Attorney General of Ontario Ontario
Alan Young Fiona Campbell Osgoode Hall Law School Sack Goldblatt Mitchell LLP Ignat Kaneff Building 30 Metcalfe Street, Suite 500 4700 Keele St Ottawa, ON K1P 5L4 Toronto, Ontario M3J 1P3
72 Walder Avenue Tel: 613-482-2451 Toronto, ON M4P 2S2 Fax: 613-235-3041 Email: [email protected] Tel: (416) 736-5595 Fax: (416) 736-5736 Email: [email protected]
Counsel for the Respondent and Appellant in Agent for the Respondent and Appellant in Cross-Appeal, Terri Jean Bedford Cross-Appeal, Terri Jean Bedford
Marlys A. Edwardh Fiona Campbell Daniel Sheppard Sack Goldblatt Mitchell LLP Sack Goldblatt Mitchell LLP 30 Metcalfe Street, Suite 500 20 Dundas St. W., Suite 1100 Ottawa, ON K1P 5L4 Toronto, ON M5G 2G8
Tel: 416-979-6442 Tel: 613-482-2451
Fax: 416-979-4430 Fax: 613-235-3041 Email: [email protected] Email: [email protected] [email protected]
Counsel for the Respondent and Appellant in Agent for the Respondent and Appellant in Cross-Appeal, Valerie Scott Cross-Appeal, Valerie Scott
Stacey Nichols Fiona Campbell Neuberger Rose LLP Sack Goldblatt Mitchell LLP 1392 Eglinton Avenue West 30 Metcalfe Street, Suite 500 Toronto, Ontario Ottawa, ON K1P 5L4 M6C 3E4
Tel: (416) 364-3111 Tel: 613-482-2451 Fax: (416) 364-3271 Fax: 613-235-3041 Email: [email protected] Email: [email protected]
AND Agent for the Respondent and Appellant in Cross-Appeal, Amy Lebovitch Ron (Yaron) Marzel, Marzel Law 265 Rimrock Road, Suite 200 Toronto, Ontario M3J 3C6
Tel: (416) 485-5200 Ext. 233 Fax: (416) 485-1610 Email: [email protected]
Counsel for the Respondent and Appellant in Cross-Appeal, Amy Lebovitch
Me Sylvain Leboeuf Me Pierre Landry DIRECTION GENÉRALE DES AFFAIRES Noël & AssociÉs s.e.n.e.r.l. JURIDIQUES ET LÉGISLATIVES 111, rue Champlain 1200, route de l’Église, 2 étage Gatineau (Québec) J8X 3R1 Québec (Québec) G1V 4M1 Tél : 418-643-1477 Tel : 819-771-7393 Téléc : 418-646-1696 Téléc : 819-771-5397 [email protected] [email protected] Correspondants pour le Procureur général du Procureurs du Procureur général du Québec Québec
Katrina E. Pacey Jeffrey Beedell Pivot Legal Society McMillan LLP 121 Heatley Avenue Suite 300-50 O’Connor Street Vancouver, BC V6A 3E0 Ottawa, ON K1P 6L2 T: 604-255-9700 T: 613-232-7171 F: 604-255-1552 F: 613-231-3191 E: [email protected] E: [email protected]
Counsel for Pivot Legal Society, Downtown Agent for Pivot Legal Society, Downtown Eastside Sex Workers United Against Violence Eastside Sex Workers United Against Violence and PACE Society and PACE Society
Michael A. Feder Patricia J. Wilson McCarthy Tétrault LLP Osler, Hoskin & Harcourt LLP Suite 1300, 777 Dunsmuir Street 340 Albert Street Vancouver, BC V7Y 1K2 Suite 1900 T : 604-643-5983 Ottawa, Ontario F : 604-622-5614 K1R 7Y6 E : [email protected] Telephone: (613) 787-1009 Counsel for the Secretariat of the Joint United FAX: (613) 235-2867 Nations Programme on HIV/AIDS E-mail: [email protected]
Agent for the Secretariat of the Joint United Nations Programme on HIV/AIDS
Georgialee A. Lang Eugene Meehan, Q.C. Donald Hutchison Supreme Advocacy LLP Evangelical Fellowship of Canada 397 Gladstone Avenue 130 Albert Street Suite 100 Suite 1810 Ottawa, Ontario K2P 0Y9 Ottawa, Ontario K1P 5G4 Telephone: (613) 695-8855 Ext: 101 Telephone: (613) 233-9868 FAX: (613) 695-8580 FAX: (613) 233-0301 E-mail: [email protected] E-mail: [email protected]
Counsel for the Evangelical Fellowship of Agent for the Evangelical Fellowship of Canada Canada
Jonathan Shime/ Marie-France Major Megan Schwartzentruber Supreme Advocacy LLP Cooper Sandler Shime & Bergman LLP 397 Gladstone Ave, Suite 100 439 University Avenue Ottawa, ON K2P 0Y9 Suite 1900 T: 613-695-8855 ext: 102 Toronto, ON F: 613-695-8580 M5G 1Y8 E: [email protected]
Tel: 416-585-9191 Fax: 416-408-2372 Agent for the Canadian HIV/AIDS Legal Network, the British Columbia Centre for HIV & AIDS Legal Clinic Ontario Excellence in HIV/AIDS and the HIV & AIDS 65 Wellesley Street East, Suite 400 Legal Clinic Ontario (HALCO) Toronto ON M5Y 1G7
Renée Lang Ryan Peck Tel: 416-340-7790 Fax: 416-3407248
Counsel for the Canadian HIV/AIDS Legal Network, the British Columbia Centre for Excellence in HIV/AIDS and the HIV & AIDS Legal Clinic Ontario (HALCO)
Brent B. Olthuis/ Megan Vis-Dunbar Michael J. Sobkin Hunter Litigation Chambers Barrister & Solicitor 2100-1040 West Georgia Street 2-90 Boulevard de Lucerne Vancouver, BC V6E 4H1 Gatineau, QC J9H 7K8
T: 604-891-2400 T : 819-778-7794 F : 604-647-4554 F : 819-778-1740
E : [email protected] E : [email protected]
Counsel for the British Columbia Civil Agent for the British Columbia Civil Liberties Liberties Association Association
Fay Faraday Nadia Effendi 860 Manning Ave. Borden Ladner Gervais LLP Toronto, ON M6G 2W8 100 Queen St., Suite 1100 T: 416-389-4399 Ottawa, ON K1P 1J9 F: 647-776-3147 T: 613-237-5160 E: [email protected] F: 613-230-8842 E: [email protected] Janine Benedet Faculty of Law University of British Columbia 1822 East Mall Vancouver, BC V6T 1Z1 T: 604-822-0637 F: 604-822-8108 E : [email protected]
Counsel for the Intervener, Women’s Coalition Agent for the Intervener, Women’s Coalition for the Abolition of Prostitution for the Abolition of Prostitution
Christa Big Canoe Emily Hill Legal Advocacy Director, Aboriginal Legal Service of Toronto 415 Yonge Street, Suite 803 Toronto, ON M5B 2E7 T: 416-408-4041 ext: 225 F: 416-408-4268 E: [email protected]
Counsel for the Aboriginal Legal Services of Toronto
Robert W. Staley/ Ranjan K. Agarwal Bennett Jones LLP Bennett Jones LLP World Exchange Plaza 3400 One First Canadian Place 1900-45 O’Connor Street P.O. Box 130 Ottawa, Ontario Toronto, ON M5X 1A4 K1P 1A4 T: 416-863-1200 F: 416-863-1716 Tel: 613-683-2300 E: [email protected] Fax: 613-683-2323
Counsel for Christian Legal Fellowship, Agent for Christian Legal Fellowship, Catholic Catholic Civil Rights League and Real Women Civil Rights League and Real Women of of Canada Canada
Me Walid Hijazi Me Frédérick Langlois Desrosiers, Joncas, Massicotte, senc. Deveau, Bourgeois, Gagné, Hébert & Associés, 480, boul. St-Laurent, B-503 S.E.N.C.R.I. Montréal, QC H2Y 3Y7 867, boulevard Saint-René Ouest, suite 8 Gatineau, Québec T: 514-397-9284 J8T 7X6 F: 514-397-9922 Tel: 819-243-2616 E: [email protected] Fax: 819-243-2461
Counsel for L’Institut Simone de Beauvoir Agent for L’Institut Simone de Beauvoir
Joseph J. Arvay, QC Martha Healey Cheryl Milne Norton Rose Canada LLP Arvay Finlay Barristers 45 O’Connor Street, Suite 1500 1350-355 Burrard Street Ottawa, ON K1P 1A4 Vancouver, BC V6C 2G8 T: 613-780-8638 T: 604-689-4421 F: 613-230-5459 F: 604-687-1941 E: [email protected] E: [email protected]
Counsel for the David Asper Centre for Agent for the David Asper Centre for Constitutional Rights Constitutional Rights
Gwendoline Allison D. Lynne Watt Foy Allison Law Group Gowling Lafleur Henderson LLP 207-2438 Marine Drive 160 Elgin Street, Suite 2600 West Vancouver, BC V7V 1L2 Ottawa, ON K1P 1C3 T: 613-786-8695 T: 604-922-9282 F: 613-788-3509 F: 604-922-9283 E: [email protected]
Counsel for AWCEP Asian Women for Agent for AWCEP Asian Women for Equality Equality Society, operating as Asian Women Society, operating as Asian Women Coalition Coalition Ending Prostitution Ending Prostitution
INDEX
PART I – RESPONSE TO THE FACTS ...... 1 1) OVERVIEW ...... 1 2) FACTS ...... 1 PART II – ISSUES ...... 2 PART III – ARGUMENT ...... 2 1) There is no need to reconsider the constitutionality of s. 213(1)(c) ...... 2 2) The claimants failed to demonstrate that the prohibition is the necessary link in the chain of causation ...... 2 3) Section 213(1)(c) accords with the principles of fundamental justice ...... 5 4) Section 213(1)(c) is a justifiable limit on freedom of expression ...... 7 PART IV – COSTS ...... 10 PART V – ORDER SOUGHT ...... 10 PART VI – TABLE OF AUTHORITIES ...... 11 PART VII – STATUTES AND REGULATIONS ...... 13 APPENDIX “A” – Legislative Intent of s. 213(1)(c)...... 42 APPENDIX “B” International Street Solicitation Laws ...... 47 1
PART I – RESPONSE TO THE FACTS 1) OVERVIEW
1. Section 213(1)(c) of the Criminal Code prohibits johns and prostitutes from communicating for the purpose of prostitution in a public place. This protects communities from the harms associated with public prostitution. These harms include increased congestion and noise, unwanted solicitation of passers-by for sexual purposes, increased crime, violence and exposure of children to all of these activities. Parliament enacted the prohibition in response to the urgent problems that had arisen in the wake of the decision in R. v. Hutt1 that restrictively interpreted the term “solicitation” in the predecessor to s. 213(1)(c). That decision resulted in unchecked street prostitution in cities across Canada. Parliament also enacted this prohibition to address the impact that open street solicitation had on the growth in the number of prostitutes, pimps, clients (“johns”) and minors choosing to engage in prostitution.2
2. This Court considered the constitutionality of s. 213(1)(c) in the Prostitution Reference3 finding that this prohibition did not violate s. 7 of the Charter and that it was a demonstrably justifiable limitation on s. 2(b) of the Charter. The claimants have not put forward any basis that warrants revisiting this Court’s decision.
3. In addition to the applicability of this Court’s decision upholding s. 213(1)(c), the majority of the Court of Appeal (“OCA”) properly held that it does not violate s. 7 of the Charter. Any possible impact that the law has on the safety of prostitutes is not grossly disproportionate to the legislative objectives of preventing the serious social nuisance related problems it causes and deterring street prostitution. The Attorney General of Canada (“Canada”) however, goes further, and disputes the conclusion that prostitutes’ security of the person is engaged at all. There is no necessary link between s. 213(1)(c) and the harms suffered by prostitutes.
2) FACTS
4. Canada relies on the facts as set out in its appeal factum. Many of the factual claims made
1 Attorney General of Canada Book of Authorities (AGC Auth.), Tab 16, Hutt v. The Queen, [1978] 2 S.C.R. 476 at pp. 482-483 [Hutt]; See also: Attorney General of Canada Supplementary Book of Authorities (AGC Supp. Auth.), Tab 12, R. v. Whitter; R. v. Galjot, [1981] 2 S.C.R. 606 at p. 612 2 AGC Appeal Factum at paras. 41-42 3 AGC Auth., Tab 55, Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123 at pp. 1139- 1140 and 1142 [Prostitution Reference] 2 by the claimants are either inaccurate, contradicted or selective, as noted in the argument below.
PART II – ISSUES
5. On the cross appeal, Canada submits that:
i) This Court should not reconsider the constitutionality of s. 213(1)(c) as this Court has already determined it to be constitutional in the Prostitution Reference. ii) The claimants have not demonstrated that s. 213(1)(c) causes the harms suffered by street prostitutes. iii) On s. 7, the majority of the OCA correctly found that s. 213(1)(c) is not grossly disproportionate given the lack of impact the prohibition has on the safety of prostitutes as balanced against its important legislative objectives. iv) Section 213(1)(c) continues to be a justifiable limitation of s. 2(b) of the Charter and, if this Court finds a breach of s. 7, this too is justified in a free and democratic society. PART III – ARGUMENT 1) There is no need to reconsider the constitutionality of s. 213(1)(c)
6. In the Prostitution Reference, this Court held that s. 213(1)(c) did not violate s. 7 of the Charter and was a justifiable limit of s. 2(b) of the Charter. In reaching this conclusion, this Court recognized that Parliament must be accorded deference in the manner in which it seeks to achieve its legislative objectives.4 This Court does not lightly set aside its own precedent unless there are compelling reasons to do so.5 No such reasons exist here. The Prostitution Reference remains a valid and regularly cited precedent.6 The updated social science and opinion evidence offered to justify this departure provides no grounds for doing so.
2) The claimants failed to demonstrate that the prohibition is the necessary link in the chain of causation
7. As discussed in Canada’s appeal factum, this Court requires a sufficient causal link between the government action in issue and the alleged deprivation to establish a breach of a Charter right.7 No sufficient causal connection was established between the prohibition and a prostitute’s security of the person in this case. Section 7 of the Charter is therefore not engaged except in respect of the claimants’ right to liberty, as determined in the Prostitution Reference.
4 Ibid. at pp. 1136-37, per Dickson C.J. 5 AGC Appeal Factum at para. 95; See also: AGC Auth., Tab 63, Sriskandarajah v. United States of America, 2012 SCC 70 at paras. 18-19; AGC Supp. Auth., Tab 6, R. v. Henry, [2005] 3 S.C.R. 609, 2005 SCC 76 at para. 44 6 AGC Supp. Auth., Tab 8, R. v. Lekovic, 2013 SCC 25 at para. 2 7 AGC Appeal Factum at paras. 61-70 3
8. This is not a case where the state denies access to treatment for a medical condition beyond a claimant’s control and integral to his or her bodily security. It is readily distinguishable from this Court’s decisions in Canada (Attorney General) v. PHS (Community Services Society) and R. v. Morgentaler.8 There is no analogy between prostitution and addiction or pregnancy. Prostitution, and in particular, communicating for the purpose of prostitution, is a commercial activity. The decision to engage in this commercial activity may be a constrained choice for many, but the claimants themselves argue that the decision to be a prostitute can be an “informed” and “autonomous choice”9 and the evidence establishes that many make the choice to exit prostitution.10 Parliament made the legitimate policy decision that engaging in prostitution is a dangerous activity for all, especially minors, so it should be deterred.11
9. Further, in PHS this Court held that the supervised injection site “saves lives. Its benefits have been proven”.12 In contrast, the evidence here does not prove that s. 213(1)(c) sufficiently causes an increased risk to the security of prostitutes by either: (i) prohibiting street prostitutes from speaking at greater length with prospective clients (screening); or (ii) forcing prostitutes into more isolated and dangerous areas (displacement).13
10. The evidence does not support MacPherson J.A.’s dissenting opinion that screening is “an essential tool for safety”.14 The majority of the OCA properly found that there was “limited” evidence supporting the proposition that a prostitute being able to communicate longer in public with clients could contribute to safety, as there were a number of other factors independent of the law that created the risk, primarily the john.15 For example, Robert Pickton “appeared to be known to the sex trade workers” in the Downtown Eastside of Vancouver. There was no evidence that s. 213(1)(c) or rushed conversations were what caused the women to go with him; rather, it
8 AGC Supp. Auth., Tab 3, Canada (A.G.) v. PHS (Community Services Society), [2011] 3 S.C.R. 134, 2011 SCC 44 at paras. 99-101 [PHS]; AGC Auth., Tab 44, R. v. Morgentaler, [1988] 1 S.C.R. 30 at p. 90 (Beetz J.) 9 Respondent’s Cross Appeal Factum at para. 106 10 AGC Appeal Factum at para. 69; See also: AGO Appeal Factum at paras. 19-22 11 AGC Appeal Factum at paras. 41-42 12 AGC Supp. Auth., Tab 3, PHS, supra at para. 133 13 J.A.R., Vol. 15, Tab 51, p. 4149, Affidavit of John Lowman at paras. 7 – 8 (Lowman Affidavit) 14 Appellant’s Record, Vol. II, Tab 7, p. 138, Canada (A.G.) v. Bedford, 2012 ONCA 186 [Bedford (OCA)] at para. 348 per MacPherson J.A. Superior Court of Justice Factum of the Respondent (Respondent’s SCJ Factum), Electronic Record, para. 145, MacPherson J.A. relied on Dr. Benoit’s opinion, however the claimants conceded that Prof. Benoit’s reports did not contain empirical evidence to support her opinion that s. 213(1)(c) leads sex workers to conduct hasty transactions. 15 Appellant’s Record, Vol. II, Tab 7, p. 125, Bedford (OCA) at para. 312. See also J.A.R., Vol. 8, Tab 34, p. 1968, Affidavit of Dr. Augustine Brannigan at para. 6 4 was by promises of “increased payment” for services, or drugs.16
11. There is no evidence that s. 213(1)(c) forces street prostitutes to remote locations, increasing their risk of harm. It is the prostitutes’ and the johns’ attempts to evade the law, not the law itself, which may lead them to seek out more isolated areas to engage in illegal communications. This Court explained in R. v. Malmo-Levine that refusal to comply with the law cannot be elevated to a constitutional argument against its validity.17
12. Displacement may result from the way the law is enforced in some communities. Evidence on “displacement” concerns itself with certain police enforcement tactics in Vancouver to “sweep” prostitutes out of highly frequented areas into isolated streets and industrial areas. Enforcement decisions cannot justify striking down otherwise valid laws.18
13. The evidence is also insufficient to demonstrate that “displacement” materially contributes to the violence suffered by street prostitutes. The claimants’ evidence of displacement is anchored in the evidence of their main expert, Dr. Lowman. Dr. Lowman theorized that there is a link between the enactment of s. 213(1)(c) and an increase in the rate of violence against, and murder of, street prostitutes in British Columbia resulting from displacement practices used by police in Vancouver.19 Dr. Lowman’s evidence was extensively relied upon by the claimants’ other experts and the Application Judge.20 Dr. Melchers, an expert in research methodology, evaluated Dr. Lowman’s assertions purporting to link the impugned prohibitions to the endangerment and murder of prostitutes. He found Dr. Lowman’s assertions speculative with no empirical testing of hypotheses or valid and reliable evidence in support of his conclusions.21
14. Dr. Lowman’s assertion is also contradicted by the Federal/Provincial/Territorial Working Group on Prostitution. It found that a causal link could not be established because the increase in
16 AGC Supp. Auth., Tab 11, R. v. Pickton (2009), 260 C.C.C. (3d) 132, 2009 BCCA 300 at paras. 29-30, 101, 114 17 AGC Supp. Auth., Tab 9, R. v. Malmo-Levine, [2003] 3 S.C.R 571, 2003 SCC 74 at para. 178 (Malmo-Levine) 18 AGC Auth., Tab 35, R. v. Khawaja, 2012 SCC 69 at para. 83 19J.A.R., Vol. 15, Tab 51, p. 4149-50, Lowman Affidavit at paras.7-9; J.A.R., Vol. 21, Tab 53, p. 6010, Cross- Examination of John Lowman, Vol. 1, Q. 402. 20 Appellant’s Record, Vol. I, Tab 3, pp. 38, 45, 57, 83, 87, 87-8, 95, 95-6, 96, 98 and 103-4, Bedford v. Canada, 2010 ONSC 4264 at paras. 129, 130, 161, 210, 298(c), 317, 318, 341, 342, 343, 358 and 385 [Bedford (Sup. Ct.)]. 21 J.A.R., Vol. 61, Tab 122, p. 17789, Affidavit of Ronald-Frans Melchers at paras. 29-30; See also: Respondent’s SCJ Factum, Electronic Record, Annex 3, paras. 16-19. 5 violent crimes against street prostitutes is mirrored by a similar increase in violent crimes against women in general.22
15. Finally, apart from the evidence, the claimants distort the test for causation. They argue that the impugned laws breach security of the person for failing to “provide all the necessary tools to prevent the harm”.23 This proposition lowers the causation threshold to an unworkable level. Criminal provisions cannot be found to breach security of the person when they fail to provide for all possible harm mitigation measures for those who choose to disobey the law. This skews the s. 7 analysis by giving undue account to individual interests over the law’s broader societal objectives. Subject to the constraints set out by this Court regarding access to life-saving or health-preserving medical treatment, it is for Parliament to make the policy choices on how to balance the need to deter a dangerous activity against the incidental risks to those who continue to engage in it.24 Further, the claimants’ reliance upon criminal standards of causation in respect of the s. 7 test is misplaced as they disregard the role of mens rea as a limiting feature of individual criminal liability – a feature that has no analogue in Charter analysis.25
3) Section 213(1)(c) accords with the principles of fundamental justice
16. The claimants did not meet the onerous standard required to demonstrate gross disproportionality. Essential to the analysis is the weight attributable to the impact the law has on the Charter interests and the degree to which the legislation contributes to the infringement of s. 7. This impact must be balanced against the importance of the legislative objectives and their value to society.26 The majority of the OCA recognized that gross disproportionality is not established unless there is a marked and serious imbalance in the two sides such that the law is abhorrent to Canadians. The majority correctly applied this Court’s test for gross disproportionality in R. v. Malmo-Levine.27 MacPherson J.A.’s dissenting reasons failed to do so.
22 J.A.R., Vol. 79, Tab 160, p. 23874, Federal/Provincial/Territorial Working Group on Prostitution Report and Recommendations in respect of Legislation, Policy and Practices Concerning Prostitution-Related Activities December 1998; See also: Appellant’s Record, Vol. I, Tab 3, pp. 92-3, Bedford (Sup. Ct.) at para. 330 23 Respondent’s Cross Appeal Factum at para. 37 24 AGC Supp. Auth., Tab 9, Malmo-Levine, supra at paras. 136, 173 – 178 25 Respondent’s Appeal Factum at paras. 66–69. See also: AGC Supp. Auth., Tab 10, R. v. Nette, [2001] 3 S.C.R. 488, 2001 SCC 78 at para. 49, where this Court cautioned against confusing civil and criminal standards of causation 26 AGC Supp. Auth., Tab 9, Malmo-Levine, supra at paras. 179-181; AGC Supp. Auth., Tab 4, Cochrane v. Ontario (Attorney General) (2008), 92 O.R. (3d) 321, 2008 ONCA 718 at para. 31, leave to appeal to S.C.C. refused [2009] S.C.C.A. No. 105 27 AGC Supp. Auth., Tab 9, Malmo- Levine, supra at para. 159 6
17. Section 213(1)(c) pursues a legitimate state interest in preventing community harms, including verbal harassment of non-participants and the general detrimental effects on passers-by, especially children.28 It was enacted in response to the urgent problems facing cities, flowing from unchecked street prostitution following the restrictive interpretation given to the predecessor provision in Hutt.29 The 1983 Justice and Legal Affairs report noted:30 By any standard, street solicitation is a problem in many Canadian cities today, where open sexual commerce has turned some business and residential areas into noisy, congested, and (some would say) dangerous places; where innocent residents are accosted and harassed by prostitutes and their potential clients; and where violence is incipient.
18. Dickson C.J., speaking for the majority in the Prostitution Reference, held that the objective of s. 213(1)(c) is to “to eradicate the various forms of social nuisance arising from the public display of the sale of sex”.31 Such social nuisance includes “street congestion and noise, oral harassment of non-participants and general detrimental effects on passers-by or bystanders, especially children”.32 The majority of the OCA found that the social nuisance and detrimental effects also encompass public intoxication and criminal activity associated with street prostitution.33 Contrary to MacPherson J.A.’s assertion, the majority’s characterization is (i) consistent with the objectives as found by Dickson C.J; (ii) amply supported by the legislative record34; and (iii) provides further examples of nuisance-related problems caused by street prostitution that detrimentally affect communities. Taking “full account of the value to society of the objective underlying the challenged law”35 does not skew the analysis, nor is it improperly considering secondary salutary effects as asserted by the claimants.
19. However, in defining the legislative objectives, the OCA erred in not considering that Parliament was also concerned about deterring and preventing minors from entering street
28 AGC Auth., Tab 55, Prostitution Reference, at p. 1135 29 AGC Auth., Tab 16, Hutt, supra at pp. 482-483; See also: AGC Supp. Auth., Tab 2, British Columbia (Attorney General) v. Couillard (1984), 42 C.R. (3d) 273, 59 BCLR 102 at pp. 274-5 and 280 30 J.A.R. Vol. 70, Tab 152R, p. 20804, House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, Issue No. 126 (24 March 1983); See also: J.A.R., Vol. 73, Tab 155L, pp. 21787-8, (Speech of Minister Crosbie) 31 AGC Auth., Tab 55, Prostitution Reference, supra at p. 1134 32 Ibid. at p. 1135 33 Appellant’s Record, Vol. II, Tab 7, p. 123, Bedford (OCA), supra at para. 307 34 See Appendix A of this factum for the relevant excerpts 35 Appellant’s Record, Vol. II, Tab 7, p. 121, Bedford (OCA), supra at para. 303 7 prostitution when it enacted s. 213(1)(c).36 Parliament’s intent to deter street prostitution is reflected by the fact that the prohibition applies to both the client and the prostitute: Without customers, there can be no solicitors.37
20. There is insufficient evidence to support MacPherson J.A’s dissenting conclusion that screening is “an essential tool for safety”.38 As noted by the majority of the OCA, this is not a significant or dominant factor. The claimants also exaggerate the impact of s. 213(1)(c) in suggesting it prevents prostitutes from adopting any screening measures they may wish to take.39
21. The majority of the OCA accepted that it should take into account the claimants’ vulnerability in the gross disproportionality analysis.40 MacPherson J.A in dissent erred by attributing additional weight to these vulnerabilities. Following this Court’s analysis in PHS, the majority of the OCA correctly recognized that, if the law is the sole or dominant cause of a s. 7 deprivation exacerbating a claimants’ already vulnerable position, then the law may be found to be extreme.41 However, in this case, the law, at most, is only one of many factors that contribute to the harms experienced by street prostitutes. Other more significant contributing factors include the choice to engage in prostitution, the violent tendencies of johns, pimps, poverty, and drug addiction. This point was noted by this Court in the s. 15 Charter context in Symes v. Canada,42 If the adverse effects analysis is to be coherent, it must not assume that a statutory provision has an effect which is not proved. We must take care to distinguish between effects which are wholly caused, or are contributed to, by an impugned provision, and those social circumstances which exist independently of such a provision. [Emphasis added]
22. When the important legislative objectives are balanced against any limited impact that the legislation has on the security of prostitutes, s. 213(1)(c) is not grossly disproportionate.
4) Section 213(1)(c) is a justifiable limit on freedom of expression
23. In the Prostitution Reference, this Court held that s. 213(1)(c) infringes s. 2(b) of the
36 AGC Appeal Factum at paras. 41-42 37 J.A.R., Vol. 72, Tab 155B, pp. 21344 & 21363, Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-49, Issue 1, October 10, 1985 38 Appellant’s Record, Vol. II, Tab 7, p. 138, Bedford (OCA), supra at para. 348 39 Respondent’s Cross Appeal Factum at para. 35 40 Appellant’s Record, Vol. II, Tab 7, pp. 128-9, Bedford (OCA), supra at para. 319 41 Ibid. 42 AGC Supp. Auth., Tab 13, Symes v. Canada, [1993] 4 S.C.R. 695 at pp. 764-765 per Iacobucci J. 8
Charter, but was a justifiable limit pursuant to s. 1 of the Charter. Neither the majority of the OCA, nor MacPherson J.A in disssent, was prepared to revisit this portion of the Court’s decision.43
24. There is no basis for this Court to revisit its decision. Canada concedes that s. 213(1)(c) is a prima facie infringement of s. 2(b) of the Charter. None of the claimants’ three reasons justify this Court revisiting its finding that s. 213(1)(c) is demonstrably justified.
25. First, the claimants, in both their argument concerning the impact of the legislation and in their s. 1 submissions, assert that the prohibition captures communications of a broader nature than what it actually captures. Section 213(1)(c) does not prohibit expressive activity by prostitutes that is not for the purpose of soliciting prostitution. Prostitutes are not prevented from communicating with one another for the purpose of identifying johns who have been violent in the past, exchanging other information relating to their safety (such as recording licence plates) or keeping watch over one another.44 The prohibition is also limited in that it applies only to communications in a public place.45
26. While the claimants assert that the communication is essential for safety, there is insufficient evidence that supports this claim.46 The fundamental purpose of the communication is to set out the terms of a commercial transaction for the sale of sex. This is an economic objective and cannot be changed by secondary information that may be obtained through the communication. In the Prostitution Reference this Court held that economic expression does not lie at the core of the guarantee of freedom of expression.47 The claimants’ attempt to argue the security of the person through the lens of s. 2 of the Charter is more appropriately addressed in the s. 7 Charter analysis.
27. Second, contrary to the claimants’ assertion, Canada is not “out of step with international
43 Appellant’s Record, Vol. II, Tab 7, pp. 126-29 and 133, Bedford (OCA), supra at paras. 74 to 85 and 331 44 AGC Supp. Auth., Tab 7, R. v. Jahelka (1987), 36 C.C.C. (3d) 105 at p. 115; quoted with approval by Lamer J. in AGC Auth., Tab 55, Prostitution Reference, supra at pp. 1197-1198 45 Ibid. at p. 1136 per Dickson C.J. 46 Appellant’s Record, Vol. IV, Tab 39, p. 20, Affidavit of Natasha Falle at paras. 61 and 64; Appellants’ Record, Vol. V, Tab 49, p. 116, Affidavit of P.M. at para. 34 47 AGC Auth., Tab 55, Prostitution Reference, supra at p. 1136 per Dickson C.J.; See also: AGC Supp. Auth., Tab 5, R. v. Butler, [1992] 1 S.C.R. 452 at p. 509 [Butler] per Sopinka J. 9 responses” to street prostitution.48 Quite the opposite: The record demonstrates that street solicitation continues to be prohibited in many other free and democratic countries as set out in Appendix “B”. Moreover, some jurisdictions that have permitted street prostitution have found it has led to serious problems of social nuisance. This resulted, for example, in the cities of Amsterdam, Rotterdam, Eindhoven and The Hague shutting down their street walker zones49 and a recommendation from Queensland’s Crime and Misconduct Commission against adopting safety zones.50
28. Third, the claimants’ assertion that the law is ineffective and therefore not a reasonable limit is without merit. There is ample evidence to support the OCA’s majority finding that the legislation is rationally connected to (and effectively serving) its purpose of mitigating the harms suffered by communities as a result of the presence of street prostitution:51 There was evidence in this case, not rejected by the application judge, that enforcement of the communication prohibition has been effective in protecting residential neighbourhoods from the harms associated with street prostitution.
29. To the extent the law has not completely resolved the problem of street prostitution, deference should be accorded to Parliament in choosing the means to address this complex social issue.52 This is so particularly where earlier laws proved to be unsuccessful and where alternatives have been considered to be less effective in achieving legislative objectives.53 Moreover, contrary to the suggestion of the claimants,54 there is no consensus in the government reports that the laws need to be changed because they “provide no safe context for its operation”.55 Section 213(1)(c) falls within a range of reasonable alternatives as demonstrated by
48 Respondent’s Cross-Appeal Factum at para. 43 49 J.A.R., Vol. 47, Tab 110, pp. 13529-30, Affidavit of Dr. van de Pol at paras. 79-80; J.A.R., Vol. 47, Tab 110D, p. 13606, Dr. van de Pol Affidavit, Exhibit “D”, “Prostitution in the Netherlands after the lifting of the ban of brothels”; J.A.R., Vol. 47, Tab 111, p. 13721, Dr. van de Pol Suppl. Affidavit, sworn June 5, 2009 at para. 27 50 J.A.R., Vol. 27, Tab 61D, pp. 7883-7884, Sullivan Affidavit, Exhibit “D”, Crime and Misconduct Commission, Regulating Prostitution An Evaluation of the Prostitution Act (QLD), 2004 51 Appellants’ Record, Vol. II, Tab 7, pp. 116-7, Bedford (OCA), supra at para. 289 52 AGC Auth., Tab 7, Canada (Attorney General) v. JTI-Macdonald Corp., [2007] 2 S.C.R. 610, 2007 SCC 30 at para. 43; AGC Supp. Auth., Tab 5, Butler, supra at pp. 505-509 per Sopinka J.; AGC Supp. Auth., Tab 1, Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R. 567; 2009 SCC 37 at paras. 37 and 53 53 AGC Auth., Tab 55, Prostitution Reference, supra at pp. 1137 and 1139 per Dickson C.J.; See also: AGC Auth., Tab 16, Hutt, supra at p. 483-484; AGC Supp. Auth., Tab 14, Westendorp v. the Queen, [1983] 1 S.C.R. 43 at p. 54; J.A.R., Vol. 71, Tab 154B, p. 20937-20938, Fraser Committee Report, Vol. 2, at pp. 419-420 54 Respondents’ Appeal factum at para. 43; See also: Respondent’s Cross Appeal Factum at paras. 17-20 55 J.A.R., Vol. 71, Tab 154B, p. 21031, Fraser Committee Report, Vol. 2, at p. 513; J.A.R., Vol. 79, Tab 160, pp. 23869-23870, Federal/Provincial/Territorial Working Group on Prostitution, Report and Recommendations in respect of Legislation, Policy and Practices Concerning Prostitution-Related Activities (1998) at pp. 3-4; J.A.R., 10 falls within a range of reasonable alternatives as demonstrated by the fact that most other countries with legal systems similar to Canada's have maintained a similar prohibition on street solicitation, as set out in Appendix ·'B".
30. The legislative objectives of s. 213(l )(c) are pressing and substantial. The limitations on public communication for the purpose of prostitution are also rationally connected to these objectives56 and the means chosen by Parliament are reasonably tailored to achieve these legislative objectives.57 The legislation's benefits - both in terms of deterrence and reduction of community hanns associated with public conununication for purposes of prostitution - outweigh its deleterious effect of limiting economic communication that has not been proven to increase the claimants' safety.
31 . For the same reasons that the legislation is a justifiable limitation of s. 2(b) Charter rights, this legislation is also a justifiable limitation of any s. 7 Charter rights should this Court find such a breach.
PART IV - COSTS
32. Costs should not be awarded to either side.
PART V- ORDER SOUGHT
33. Canada asks that the cross appeal be dismissed. In the alternative, should this cross appeal be allowed, Canada req uests that the declaration of constitutional invalidity be suspended for a further period of 18 months from the issuance of the decision of this Honourable Court.
ALL OF WHICH IS RESPECTFULLY SUBMITTED Dated at Toronto this 28th day of May, 2013
tJ ~ v t LL(l ') v ll,tJ~A. -=--~N~f-:-=~~~~~- Michael H. oms Nancy Dehnison Gall Smcla1r
Counsel for the Appellant/Respondent on Cross-Appeal
pp. 89-92; J.A.R., Vol. 85, Tab 165, pp. 25905-25906, !louse of Commons. Report q(the Standing Commillee on the Status of Women (2007) at pp. 15-16 56 AGC Auth., Tab 55, Prostitution Reference, supra at p. 1135 51 /bid. at pp. 1136-11 38 11
PART VI – TABLE OF AUTHORITIES Authorities Cited at:
Alberta v. Hutterian Brethen of Wilson Colony, [2009] 2 S.C.R. 567; 2009 29 SCC 37
Bedford v. Canada, 2010 ONSC 4264 13, 14
British Columbia (Attorney General) v. Couillard (1984), 42 C.R. (3d) 17 273, 59 BCLR 102 10, 16, 18, 19, Canada (A.G.) v. Bedford, 2012 ONCA 186 20, 21, 23, 28 Canada (A.G.) v. PHS (Community Services Society), [2011] 3 S.C.R. 134, 2011 SCC 44 8, 9, 21
Canada (Attorney General) v. JTI-Macdonald Corp., [2007] 2 S.C.R. 610, 29 2007 SCC 30 Cochrane v. Ontario (Attorney General) (2008), 92 O.R. (3d) 321, 2008 ONCA 718 16
Hutt v. The Queen, [1978] 2 S.C.R. 476 17, 29
R. v. Butler, [1992] 1 S.C.R. 452 26, 29
R. v. Henry, [2005] 3 S.C.R. 609 6
R. v. Jahelka (1987), 36 C.C.C. (3d) 105 25
R. v. Khawaja, 2012 SCC 69 24
R. v. Lekovic, 2013 SCC 25 6
R. v. Malmo-Levine, [2003] 3 S.C.R 571, 2003 SCC 74 11, 15, 16
R. v. Morgentaler, [1988] 1 S.C.R. 30 8
R. v. Pickton (2009), 260 C.C.C. (3d) 132, 2009 BCCA 300 10 12
Authorities Cited at:
R. v. Whitter; R. v. Galjot, [1981] 2 S.C.R. 606
Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 6, 7, 17, 18, 23, S.C.R. 1123 25, 26, 29, 30
Sriskandarajah v. United States of America, 2012 SCC 70 6
Symes v. Canada, [1993] 4 S.C.R. 695 21
Westendorp v. the Queen, [1983] 1 S.C.R. 43 29
13
PART VII – STATUTES AND REGULATIONS 1. Criminal Code of Canada, R.S., 1985, c. C-46, s.213(1)(c)
2. Canadian Charter of Rights and Freedoms, ss. 1, 2(b) and 7, Part I of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11
3. Prostitution Act 1992 (A.C.T.), s.19
4. Prostitution Regulation Act (N.T.), s.10
5. Prostitution Act 1999 (Qld.), s.73
6. Summary Offences Act 1953 (S.A.), s.25
7. Sex Industry Offences Act 2005 (Tas.), s.8
8. Prostitution Act 2000 (W.A.), s.6
9. Street Offences Act 1959 (U.K.), 7 & 8 Eliz. 2, c.57, s.1
10. Sexual Offences Act 2003 (U.K.), 2003, c.42, Sch.1, s.2
11. Policing and Crime Act 2009 (U.K.), 2009, c.26, s.16
12. Summary Offences Act 1988 (N.S.W.) s.19
13. Sex Work Act 1994 (Vic.), s.13
Offence in relation to Infraction se rattachant à la prostitution prostitution
213. (1) Every person who in a 213. (1) Est coupable d’une public place or in any place open infraction punissable sur to public view déclaration de culpabilité par (a) stops or attempts to stop procédure sommaire quiconque, any motor vehicle, dans un endroit soit public soit situé à la vue du public et dans le (b) impedes the free flow of but de se livrer à la prostitution ou pedestrian or vehicular de retenir les services sexuels traffic or ingress to or d’une personne qui s’y livre : egress from premises adjacent to that place, or a) soit arrête ou tente d’arrêter un véhicule à moteur; (c) stops or attempts to stop any person or in any b) soit gêne la circulation des manner communicates or piétons ou des véhicules, 14
attempts to communicate ou l’entrée ou la sortie with any person d’un lieu contigu à cet for the purpose of engaging in endroit; prostitution or of obtaining c) soit arrête ou tente d’arrêter the sexual services of a une personne ou, de prostitute is guilty of an quelque manière que ce offence punishable on soit, communique ou tente summary conviction. de communiquer avec elle.
Definition of “public place” Définition de « endroit public »
(2) In this section, “public (2) Au présent article, « endroit place” includes any place to which public » s’entend notamment de the public have access as of right tout lieu auquel le public a accès or by invitation, express or de droit ou sur invitation, expresse implied, and any motor vehicle ou implicite; y est assimilé tout located in a public place or in any véhicule à moteur situé dans un place open to public view. endroit soit public soit situé à la vue du public.
Canadian Charter of Rights Charte canadienne des droits and Freedoms, ss. 1, 2(b) and 7, et libertés, art. 1, 2(b) et 7, partie I Part I of the Constitution Act, de la Loi Constitutionnelle de 1982, Schedule B to the Canada 1982, constituant l'annexe B de la Act 1982 (UK), 1982, c 11 Loi de1982 sur le Canada (R.-U.), 1982, c 11 Rights and freedoms in Canada Droits et libertés au Canada The Canadian Charter of Rights and Freedoms guarantees the 1. La Charte canadienne des rights and freedoms set out in it droits et libertés garantit les droits subject only to such reasonable et libertés qui y sont énoncés. Ils limits prescribed by law as can ne peuvent être restreints que par be demonstrably justified in a une règle de droit, dans des limites free and democratic society. qui soient raisonnables et dont la justification puisse se démontrer Fundamental Freedoms dans le cadre d'une société libre et démocratique. 2. Everyone has the following fundamental freedoms: Libertés fondamentales
(b) freedom of thought, belief, 2. Chacun a les libertés opinion and expression, including fondamentales suivantes : freedom of the press and other 15 media of communication; b) liberté de pensée, de croyance, d'opinion et d'expression, y compris la liberté de la presse et des autres moyens Legal Rights de communication;
Life, liberty and security of person Garanties juridiques
7. Everyone has the right to Vie, liberté et sécurité life, liberty and security of the person and the right not to be 7. Chacun a droit à la vie, à la deprived thereof except in liberté et à la sécurité de sa accordance with the principles of personne; il ne peut être porté fundamental justice. atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.
16
Australian Capital Territory
Prostitution Act 1992
A1992-64
Republication No 23 Effective: 24 April 2013
Republication date: 24 April 2013
Last amendment made by A2013-12
Authorised by the ACT Parliamentary Counsel 17
Part 3 Offences
Section 18
18 Brothels-other than in prescribed location (I) A person must not operate a brothel other than in a prescribed location. Maximum penalty: I 00 penalty units. imprisonment for I year or both. (2) Each owner of a brothel that operates other than in a prescribed location commits an offence. Maxim um penalty: I 00 penalty units, imprisonment for I year or both. (3) This section does not apply to an escort agency or premises used by a single prostitute.
19 Soliciting (I) A person sha ll not, fo r the purpose of offering or procu ring commercial sexual serv ices, accost any person, or solicit or loiter, in a public place. Maximum penalty: 20 penalty units. (2) A person shall not, for the purpose of offering or procuring commercial sexual services, accost a chi ld in a public place. Maximum penalty: imprisonment for 3 years.
20 Causing child to provide commercial sexual services etc ( I) A person commits an offence if- (a) the person causes, permits, offers or procures a child to provide commercial sexual services; and (b) the child is under 12 years old. Maximum penalty: I 500 penalty units, imprisonment for 15 years or both.
page 14 Prostitution Act 1992 R23 Effective: 24/04/13 24/04/13
Authonsed by the ACT Parliamentary Counsel-also accessible at www.legislation act gov au 18
NORTHERN TERRITORY OF AUSTRALIA
PROSTITUTION REGULATION ACT
As in force at 25 November 2011
Table of provisions
Part 1 Preliminary
1 Short title ...... 1 2 Commencement ...... 1 3 Definitions ...... 1 Part 2 Offences connected with prostitution
Division 1 Brothels
4 Keeping or managing brothel...... 3 5 Allowing premises to be used as brothel ...... 3
Division 2 Escort agency businesses
6 Operators and managers of escort agency businesses to be licensed ...... 3 7 Licensed operator not to have unlicensed partner, &c ...... 4 8 Breach of terms of licence ...... 4 9 Prohibition on arranging provision of services by persons found guilty of violent or drug offenc.es ...... 5
Division 3 Other offences
10 Soliciting, &c., in public place ...... 7 11 Forcing adult to become or remain a prostitute ...... 8 12 Forcing adult to provide financial support out of prostitution ...... 8 13 Causing or inducing infant to take part in prostitution ...... 9 14 Allowing infant to take part in prostitution ...... 9 15 Obtaining payment in respect of prostitution services provided by infant ...... 10 16 Entering into agreement for provision of prostitution services by infant ...... 10 17 Prohibition on prostitution by infants ...... 10 18 Belief by accused that infant was of age ...... 11 19 Advertising offences ...... 11 20 Medical examinations ...... 12 19
Part 2 Offences connected with prostitution Division 3 Other offences
in relation to the individual a notification under subsection (7); and
(c) notify the individual in writing of the cancellation, specifying in the notification any finding of guilt in question.
(1 0) A notice under subsection (9)(a) shall require the person on whom it is served to surrender the certificate to the Commissioner not later than 14 days after the date on which the notice is served, and a person who fails to comply with the requirement is guilty of an offence.
Maximum penalty: 17 penalty units.
(11 ) In this section:
(a) section 5, 6(1) or (2), 7, 8, 9 or 11 of the Misuse of Drugs Act; or
(b) a corresponding law (as defined in subsection (1 2)),
being an offence punishable on a finding of guilt (except where dealt with summarily) by imprisonment for 5 years or more.
wo~~~ ~ means an offence involving the use or threat of violence against another person irrespective of the penalty that may be imposed on a finding of guilt.
(12) In subsection (11)(b), oovr~~~ l?awrmeans:
(a) a law (including a repealed law) of the Commonwealth, or of a State or another Territory of the Commonwealth; or
(b) a repealed law of the Territory,
which makes (or, when in force, made) prov1s1on substantially similar to a provision specified in subsection (11 )(a).
Division 3 Other offences
10 Soliciting, &c., in public place
(1) A person shall not, for the purposes of prostitution:
(a) solicit or accost any person in a public place; or
Prostitution Regulation Act 7 20
Part 2 Offences connected with prostitution Division 3 Other offences
(b) loiter in a public place.
Maximum penalty: 17 penalty units.
(2) A person shall not:
(a) in a public place, invite or solicit any person to prostitute himself or herself with the first-mentioned person or a third person; or
(b) loiter in or frequent a public place for the purpose of:
(i) inviting or soliciting any person to prostitute himself or herself with the first-mentioned person or a third person; or
(ii) being accosted by or on behalf of a prostitute.
Maximum penalty: 17 penalty units.
11 Forcing adult to become or remain a prostitute
A person who, for the purpose of inducing a person who has attained the age of 18 years to engage or continue to engage in prostitution:
(a) assaults, or threatens to assault, that person or any other person;
(b) intimidates that person or any other person;
(c) supplies, offers to supply, or causes to be supplied, a dangerous drug to that person or any other person; or
(d) makes a false representation or uses any false pretence or other fraudulent means,
is guilty of an offence.
Maximum penalty: Imprisonment for 5 years.
12 Forcing adult to provide financial support out of prostitution
A person who, for the purpose of inducing a person who has attained the age of 18 years to provide or continue to provide him or her with a payment or payments derived (directly or indirectly) from an act or acts of prostitution taken part in by the second-mentioned person:
(a) assaults, or threatens to assault, that person or any other person;
Prostitution Regulation Act 8 21
Queensland
Prostitution Act 1999
Current as at 29 April 2013 22
Prosti tution Act 1999 Part 6 Offences
[s 73] Part 6 Offences
Division 1 General offences relating to prostitution
73 Public soliciting for purposes of prostitution (1) A person must not publicly solicit for prostitution. Maximum penalty- ( a) for a first offence-IS penalty units; or (b) for a second offence-25 penalty units; or (c) for a third or subsequent offence-30 penalty units or 6 months imprisonment. (2) A person publicly solicits for prostitution if, for that purpose, the person- ( a) solicits a person who is in a public place; or (b) solicits a person at a place within the view or hearing of a person who is in a public place; or (c) loiters in or near a public place; or (d) loiters in a place that can be viewed from a public place. (3) Subsection (1) applies equally to (a) males and females; and (b) prostitutes and their clients; and (c) persons acting for prostitutes; and (d) persons acting for clients of prostitutes. (4) In this section- solicit includes the following- (a) offer to provide prostitution; (b) accept an offer to provide prosr itu tion.
Page 68 Current as at 29 April 2013 23
Version: 9.5.2013
South Australia Summary Offences Act 1953
An Act to make provision for ce1tain offences against public order and for other summary offences; to make provision for powers of police officers in relation to investigation of offences; and for other purposes.
Contents Part !- Preliminary I Shon title 4 Interpretation 5 Proof of lawful authority and other matters Part 2- 0ffences with respect to police operations 6 Assaulting and hindering pol icc 6AA Disclosure of criminal intel ligence Part 3- 0ffences against public order 6A Violent diso rder 7 Disorderly or offensive conduct or language 7 A Obstructing or disturbing religious services etc 8 Challenges to fight and prize fights 9A Supply of methylated spirits 9B Sa le of drug paraphemalia I0 Offence to consume etc dogs or cats I I A Avoiding payment of entrance fee 12 Begging alms 13 Consorting 16 Possession of instruments for gaming or cheating 17 Being on premises for an unlawful purpose 17AA Misuse of a motor vehicle on private land 17 A Trespassers on pre mises 17 AB Trespassers etc at private parties 17AC Authorised persons 178 Interference with gates 17C Disturbance of farm anim als 17D Forcible entry or retention of land or premises 18 Loitering ISA Public meetings 20 Permilling drunkenness and disorderly conduct 21 Permitting premises to be frequented by th ieves etc
(23.5.2013] This version is not published under the Legislation Re1•ision and Publication Act 2002 24
Summary Offences Act 1953- 9.5.2013 Part 5-0ffcnces against decency and moralit)
25-Soliciting A person who- (a) in a public place, or within the view or hearing of any person in a public place, accosts or solicits a person for the purpose of prostitution; or (b) loiters in a public place for the purpose of prostitution. is guilty of an offence. Maximum penalty: $750. 25A-Procurement for prostitution (I) A person must not engage in procurement for prostitution. Maximum penalty: For a first offence-$! 250 or imprisonment for 3 months. For a subsequent offence-$2 500 or imprisonment for 6 months (2) A person engages in procurement for prostitution if the person- (a) procures another to become a prostitute; or (b) publishes an advertisement to the effect that the person (or some other person) is willing to employ or engage a prostitute; or (c) approaches another person with a view to persuading the other person to accept employment or an engagement as a prostitute. (3) In this section- advertisement includes a notice exhibited in, or so that it is visible from, a public place. 26-Living on the earnings of prostitution (I) A person who knowingly lives, wholl y or in part, on the earnings of prostitution of another person is gui lty of an offence. Maximum penalty: $2 500 or imprisonment fo r 6 months. (2) In proceedings for an offence against subsection (I). the fact that a person lives with, or is habitually in the company of. a prostitute and has no visible lawful means of support is, in the absence of proof to the contrary, proof that that person is knowingly living on the earnings of prostitution.
2 This version is not published under the L~tgislation Revision and Publication Act 2002 [23.5.20 13] 25
__r;.,.. I ~ jtasmanian legislation _ ·r. ··Ta~ 111 a l'l.S•.AA'... IA'~ COr..tr 111)/.': I G Sl.\110' uN '"-~ ld _ ·~~~c Mo.c
VIEW SUMMARY
The leg1slation that is being viewed is valid for 28 May 201 3
Sex Industry Offences Act 2005 (No. 42 of 2005) Requested:28 May 201 3
Consolidated:28 May 2013
TAS:VlANIA
Sex Industry Offences Act 2005
An Act to impose certain restrictions on the operation of sexual services businesses in order to protect children and sex workers from exploitation in the sex industry, to safeguard public health, to amend the Criminal Code Act 1924, the Evidence (Children and Special Witnesses) Act 2001, the Justices Act 1959 and the Police Offences Act 1935 and for related purposes
[Royal Assent 24 November 2005]
Be it enacted by His Excellency the Govcmor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as fo ll ows: 26
_r;.. I "', A tasmanian legislation
~ .,.._ ·- ,d~llla I \~'.-11\i".; A'S ~O'..,JSQIIDA :- 0 h.; SIAnO!-. Chlllf\..r l d - ' ·-:rlo VIEW SUMMARY The legislation that is being viewed is val1d for 28 May 2013. Sex Industry Offences Act 2005 (No. 42 of 2005) Requested:28 May 2013 Consolidated:28 May 2013 8. Soliciting and accosting (1) A person must not, for the purpose of offering or procuring sexual services in a sexual services business, accost any person, or soli cit or loiter, in a public place. Penalty: Fine not exceeding 20 penalty units. (2) A person must not, for the purpose of offering or procuring sexual services in a sexual services business, accost a child. Penalty: Fine not exceeding 300 penalty units or imprisonment for a term not exceeding 3 years, or both. 27 Western Australia Prostitution Act 2000 As at 01 Mar 2013 Version 01-t0-00 Extract fro m www.slp. wa.gov.au, see that website for furiher information 28 Prostitution Act 2000 General provis1ons about prostitution Part 2 Persons generally Division 1 s. 6 (c) whether the offender makes or intends to make the invitation or request directly or through someone else to, or intends to recei ve the invitation directly or through someone else from. the person whom the offender seeks to act as a prostitute. 6. Seeking client in or in view or within hearing of public place (1) A person who, in or in the view or within hearing of a public place, seeks another person to be a prostitute's client commits an offence under this subsection. (2) A person who commits an offence under subsection (1) is liable- (a) if the person whom the offender seeks to be a prostitute's client, or any of them if there arc more than one. is a child, to imprisonment for 3 years; (b) in any other case, to imprisonment for one year. (3) For the purposes of subsection (I), a person (in this section called tlte offender) seeks another person to be a prostirute's client if the offender - (a) invites or requests another person to be a prostitute's client; or (b) loiters in or frequents a place for the purpose of, or with the intention of- (i) inviting or requesting another person to be a prostitute's client; or (ii) receiving an invitation for another person to be a prostitute's cl ient. ( 4) It makes no difference - (a) whether or not the offender, or any particular person, is the prospective prostitute; (b) whether or not a particular person is sought to be a client; or Asat01 Mar2013 Version 01-t0-00 page 5 Extract from www.slp. wa.gov.au. sec that website for further information 29 Prostitution A c t 2000 Part 2 General provisions about prostitution Division 1 Persons generally s. 7 (c) whether the offender makes or intends to make the invitation or request directly or through someone else to, or intends to receive the invitation directly or through someone else from, the person whom the offender seeks to be a prostitute's client. 7. Seeking to induce person to act as prostitute (I) A person is not to - (a) assault or threaten to assault anyone; (b) intimidate anyone; (c) supply or offer to supply a prohibited drug to anyone; (d) make a false representation or use any false pretence or other fraudulent means; or (e) do anything else, or refrain from doing anything, with the intention of inducing another person who is not a child to act, or continue to act, as a prostitute. (2) An offence under subsection (1) is a crime. Penalty: imprisonment for 10 years. Summary conviction penalty: Imprisonment for 3 years. 8. Propbylactic to be used lt is an offence for a person to engage in an act of prostitution without using a prophylactic that is appropriate for preventing the transmission of bodily fluid from one person to another. Penalty: $5 000. 9. Promoting employ ment io prostitution industry A person is not to publish or cause to be published a statement that is intended or likely to induce a person to - (a) seek employment as, or act as, a prostitute; or (b) seek employment in any other capacity in any business involving the provision of prostitution. Penalty: $50 000. page 6 Version 01-t0-00 As at 01 Mar 2013 f.\1rac1 from www.slp "a gov.au. see !hal wcbsuc for further informal ion 30 7 & 8 ELJZ. 2 Street Offences Act, 1959 CH. 57 CHAPTER 57 An Act to make, as respects England and Wales, further provision against loitering or soliciting in public places for the purpose of prostitution, and for the punishment of those guilty of certain offences in connection with refreshment houses and those who · live on the earnings of or control prostitutes. [16th July, 1959] E it enacted by the Queen's most Excellent Majesty, by and with the advice and consent uf the Lords Spiritual and B Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:- 1.-(1) It shall be an offence for a common prostitute to Loitering or loiter or solicit in a street or public place for the purpose of soliciting for prostitution. purp()ses. of prostttutJOn. . ·l (2) A person guilty of an offence under this section shall be liable, on summary conviction, to a fine not exceeding ten pounds or, for an offence committed after a previous conviction, to a fine not exceeding twenty-five pounds or, for an offence committed after more than one previous conviction, to a fine not ex-ceeding twenty-five pounds or imprisonment for a period not ex-ceeding three months or both. (3) A constable may arrest without warrant anyone he finds in a street or public place and suspects, with reasonable cause, to be -committing an offence under this section. (4) For the purposes of this section "street" includes any bridge, road, lane, footway, subway, square, court, alley or passage, whether a thoroughfare or not, which is for the time being open to the public; and the doorways and entrances of premises abutting on a street (as hereinbefore defined), and any g1 ound adjoining and open to a street, shall be treated as forming part of the street. 1 31 CH. 57 Street Offences Act, 1959 7 &r8 ELJZ. 2 (5) The following enactments shall cease to have effect, that is to say- (a) paragraph 11 of section fifty-four of the Metropolitan Police Act, 1839; and (b) the paragraph beginning" Every common prostitute" in section twenty-eight of the Town Police Clauses Act, 1847, and any later Act in so far as it incorporates that paragraph; and (c) paragraph 11 of section thirty-five of the City of London Police Act, 1839, and the paragraph beginning "Every common prostitute " in section one hundred and two of the Manchester Police Regulation Act, 1844; but for the purposes of subsection (2) of this section a conviction of the offence mentioned in any of those paragraphs shall be taken into account as a previous conviction in the same way as a conviction of an offence under this section . Application . 2.- (1) Where a woman is cautioned by a constable, in respect to court by of her conduct in a street or public place, that if she persists in woman such conduct it may result in her being charged with an offence cautioned for loitering or under section one of this Act, she may not later than fourteen clear soliciting. days afterwards apply to a magistrates' court for an order directing that there is to be no entry made in respect of that caution in any record maintained by the police of those so cautioned and that any such entry already made is to be expunged; and the court shall make the order unless satisfied that on the occasion when she was cautioned she was loitering or soliciting in a street or public place for the purpose of prostitution. (2) An application under this section shall be by way of com plaint against the chief officer of police for the area in which the woman is cautioned or against such officer of police as he may designate for the purpose in relation to that area or any part of it; and, subject to any provision to the contrary in rules made und~ section fifteen of the Justices of the Peace Act, 1949, on the' hearing of any such complaint the procedure shall be the same as if it were a complaint by the police officer against the woman, except that this sha11 not affect the operation of sections forty-seven to forty-nine of the Magistrates' <;ourts Act, 1952 (which relate to the non-attendance of the parties to a r:omplaint). (3) Unless the woman desires that the proceedings shall be conducted in public, an application under this section shall be heard and determined in camera. (4) In this section references to a street shall be construed in accordance with subsection (4) of section one of this Act. Punishment 3.-(1) The following provisions of this section shall have of offences in connection effect in relation to the punishment of offences to which section with twenty-six of the Licensing Act, 1949, applies (being certain night cafes. 2 32 Sexual Offences Act 2003 CHAPTER42 CONTENTS PARTl SEXUAL O FFENCES Rape 1 Rape Assault 2 Assault by penetration 3 Sexual assault Causing sexual activihj without consent 4 Causing a person to engage in sexual activity without consent Rape and other offences against children under 13 5 Rape of a child under 13 6 Assault of a child under 13 by penetration 7 Sexual assault of a child under 13 8 Causing or inciting a child under 13 to engage in sexual activity Child sex offences 9 Sexual activity with a child 10 Causing or inciting a child to engage in sexual activity 11 Engaging in sexual activity in the presence of a child 12 Causing a child to watch a sexual act 13 Child sex offences committed by children or young persons 14 Arranging or facilitating commission of a child sex offence 15 Meeting a child fo llowing sexual grooming etc. 33 82 Sexual Of!e11ces Act 2003 (c. 42) Schedule 1 - Extmsio11 ofgender- specific prostitution offences SCHE DULES SCIIEDULE 1 Section 56 EXTENSION OF GENDER-SPEGFIC PROSTITUTION OFFENCES Sexual Offences Act 1956 (c. 69) 1 In section 36 of the Sexual Offences Act 1956 (permitting premises to be used for prostitution), at the end insert "(whether any prostitute involved is male or female)". Street Offences Act1959 (c. 57) 2 In section 1(1) of the Street Offences Act 1959 (loitering or soliciting for purposes of prostitution), after "prostitute" insert "(whether male or female)". 3 (1) Section 2 of that Act (application to court by woman cautioned for loitering or soliciting) is amended as fo llows. (2) In the heading of the section, for "woman" substitute "person". (3) In subsection (1) - (a) for "woman" substitute "person", (b) for "her" in each place substitute "his", and (c) for "she" in each place substitute "he". (4) In subsection (2) - (a) for "woman" in the first place substitute "person", (b) for "he" substitute "the chief officer", and (c) for "woman·· in the second place substitute "person cautioned". (5) In subsection (3), for "woman" substitute "person cautioned". Sexual Offences Act 1985 (c. 44) 4 (1) The Sex ual Offences Act 1985 is amended as follows. (2) For the heading "Soliciting of women by me11" substitute ''Soliciting for the purpose of prostitution". (3) In section 1 (kerb-crawling)- (a) for ··man" substitute ·•person", (b) for "a woman" substitute "another person", (c) for "women" in each place substitute "persons", and (d) for "the woman" substitute "the person". (4) In section 2 (persistent soliciting of women for the purpose of prostitution) (a) for the heading of the section substitute "Persistent soliciting", 34 Policing and Crime Act 2009 CHAPTER26 CONTENTS PARTl POLICE REFORM Public accountability 1 Duty of police authorities in relation to public accountability Appointment ofsenior officers 2 Police Senior Appointments Panel 3 Regulations about senior officers 4 Metropolitan police force appointments Police co-operntio11 5 Police collaboration 6 Authorisations to interfere with property etc 7 Authorisa tions for obtaining and disclosing communications data 8 Authorisa tions of covert human intelligence sources: conditions 9 Authorisations for surveillance etc 10 Police offi cers engaged on service outside their force etc 11 Police equipment 12 Police procedures and practices 13 Police facilities and services 35 18 Policing and Crime A ct 2009 (c. 26) Part 2 - Sexual offences and sex establishments (3) C engages in exploitative conduct if- (a) C uses force, threats (whether or not relating to violence) or any other form of coercion, or (b) C practises any form of deception. (4) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale." 15 Paying for sexual services of a prostitute s ubjected to force etc: Northern Ireland After Article 64 of the Sexual Offences (Northern freland) Order 2008 (S.I. 1769 (N.J. 12)) insert- "64A Paying for sexual services of a prostitute subjected to force etc. (1) A person (A) commils an offence if- (a) A makes or promises payment for the sexual services of a prostitute (B), (b) a third person (C) has engaged in exploitative conduct of a kind likely to induce or encourage B lo provide the sexual services for which A has made or promised payment, and (c) C engaged in that conduct for or in the expectation of gain for C or another person (apart from A or B). (2) The following are irrelevant- (a) where in the world the sexual services are to be provided and whether those services are provided, (b) whether A is, or ought to be, aware that C has engaged in exploitative conduct. (3) C engages in exploitative conduct if- (a) C uses force, threats (whether or not relating to violence) or any other form of coercion, or (b) C practises any form of deception. (4) A person guilty of an offence under this Article shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale." 16 Amendment to offence of loitering etc for purposes of prostitution {1) The Street Offences Act 1959 (c. 57) is amended as follows. (2) In subsection (1) of section 1 (loitering or soliciting for purposes of prostitution) - (a) for "common prostitute" substitute "person", and (b) after "female)" insert "persistently". {3) In subsection (4) of that section after "section" insert"- (a) conduct is persistent if it takes place on two or more occasions in any period of three months; (b) any reference to a person loitering or soliciting for the purposes of prostitution is a reference to a person loitering or soliciting for the purposes of offering services as a prostitute; 36 Policing and Crime Act 2009 (c. 26) 19 Part 2 - Sexual offences and sex es tablishme11l~ (c) (4) Omit section 2 (application to court by person cautioned for loitering or soliciting). (5) Ln determining for the purposes of section 1 of the Street Offences Act 1959 (c. 57) (as amended by this section) whether a person's conduct is persistent, any conduct that takes place before the commencement of this section is to be disregarded. 17 Orders requiring attendance at meetings (1) The Street Offences Act 1959 is amended as fo ll ows. (2) ln section 1 (loitering or soliciting for purposes of prostitution) after subsection (2) insert- "(2A) The court may deal with a person convicted of an offence under this section by making an order requiring the offender to attend three meetings with the person fo r the time being specified in the order ("the supervisor") or with such other person as the supervisor may direct. (2B) The purpose of an order under subsection (2A) is to assist the offender, through attendance at those meetings, to- (a) address the causes of the conduct constituting the offence, and (b) find ways to cease engaging i11 such conduct in the future. (2C) Where the court is deali ng with an offender who is already subject to an order under subsection (2A), the court may not make a further order under that subsection unless it first revokes the existing order. (20) If the court makes an order under subsection (2A) it may not impose any other penalty in respect of the offence." (3) After section 1 insert- ''l A Orders under section 1(2A): supplementary (1) This section applies to an order under section 1(2A). (2) The order may not be made unless a suitable person has agreed to act as supervisor in relation to the offender. (3) In subsection (2) "suitable person" means a person appearing to the court to have appropriate quali fi.ca tions or experience for helping the offender to make the best use of the meetings for the purpose mentioned in section 1(2B). (4) The order must specify- (a) a date (not more than six months after the date of the order) by which the meetings required by the order must take place; (b) the local justice area in which the offender resides or will reside while the order is in force. (5) The s upervisor must determine- (a) the times of the meetings required by the order and their duration, and (b) the places at which they are held. 37 New South Wales Summary Offences Act 1988 No 25 Status information Curre-ncy of version Current version for I September 20 12 to date (generated 23 April 2013 at 13:40). Legislmion on theN W legislation website is usually updated within 3 ''orking days. Provisions in force All the provisions displayed in this version of the legislation have commenced. For commencement and other details see the llistorical notes. Does not include amendments by: Road Transport. Legislation (Repeal and Amendment) /\ct 20 13 No 19 (not commenced) This vers1on of lhe legislation is compiled and ma1nta1ned 1n a database of legislation by lhe Parliamentary Counsel's Office and published on the NSW legislation webs11e. 38 Summary Offences Act 1988 No 25 Section 19 (2) In this section, advertisement for a prostitute means an advertisement that indicates. or that can be reasonably taken to indicate, that: (a) employment for a prostitute is or may be available, or (b) a person is required for employment as a prostitute or to act as a prostitute. or (c) a person is required for employment in a position that involves, or may involve, acting as a prostitute. 19 Soliciting clients by prostitutes ( I) A person in a road or road related area shall not, near or within view from a dwelling. school, church or hospital, solicit another person for the purpose of prostitution. Maximum penalty: 6 penalty un its or imprisonment for 3 months. (2) A person shall not, in a school, church or hospital, solicit another person for the purpose of prostitution. Maximum penalty: 6 penalty units or imprisonment for 3 months. (3) A person shall not, in or near, or within view from , a dwelling, school, church. hospital or public place, solicit another person, for the purpose of prostitution, in a manner that harasses or distresses the other person. Maximum penalty: 8 penalty units or imprisonment for 3 months. ( 4) The provisions of thi s section are in addition to, and do not derogate from, any other law (including section 4). (5) In this section: (a) a reference to a person who solicits another person for the purpose of prostitution is a reference to a person who does so as a prostitute, and (b) a reference to soliciting includes a reference to soliciting from a motor vehicle. whether moving or stationary. 19A Soliciting prostitutes by clients (I) A person in a road or road related area must not, near or \-vi thin view from a dwelling, school, church or hospital, solicit another person for the purpose of prostitution. Maximum penalty: 6 penalty un its or imprisonment for 3 months. (2) A person must not, in a school. church or hospital. solicit another person for the purpose of prostitution. Maximum penalty: 6 penalty units or imprisonment for 3 months. Page 19 Current version for 1.9.2012 to date (generated on 23.04.2013 at 13:40) 39 Authorised Version No. 076 Sex Work Act 1994 No. 102 of 1994 A uthorised Version incorporating amendments as at l July 2012 TABLE OF PROVISIONS Section Page PART I-PRELIMINARY I Purpose I 2 Commencement 1 .>~ Defi ni tio ns 2 3A Admission charge constitutes payment for sexual services 13 38 Exemptions for sex on premises venues 13 4 Objects of Act IS PART 2- 0F'FENCES CONNECTED WITH SEX WORK 17 s Causing or inducing child to take part in sex work 17 6 Obtaining payment tor sexual services provided by a child 18 7 Agreement for provision of sexual services by a ch ild 19 8 Forcing person into or to remain in sex work 20 9 Forcing person to provide fi nancial support out of sex work 20 10 Liv ing on earnings of sex worker 21 II Allowing child to take part in sex work 22 II A Child over 18 months not to be in brothel 24 12 Street sex work-offences by clients 2S 13 Street sex work-offences by sex workers 26 14 Exceptions to street sex work offences 27 IS Being in. entering or leaving unlicensed brothel 28 16 Offensive behaviour towards sex workers 28 17 Controls on advertisi ng by sex work service providers 28 18 Advertising regulations 30 18A Sex workers and clients must adopt safer sex practices 31 19 Permitting sex worker infected with a disease to wo rk in a brothel etc. 31 20 Sex worker wo rking while infected with a disease 33 2 1 Consuming liquor in brothel 34 21A Operating brothel other than in a build ing JS Author•sed by the Chief Parliamentary Counsel 40 ex Work Act 1994 o. 102 of 1994 Part 2-0ITcnccs Connected with ex Work Is. 13 5. 12(2) (2) Subject to section 14, a person must not- amended by No. 7312011 s.4(1). 5. 12(2)(a) (a) loiter in or frequent a public place for the amended by No.1/2010 purpose of, or with the intention of, inviting s. 42(2)(5ch. or soliciting any person to offer sex work item 22) (as amended by services himself or herself with him or her or No. 63/2010 another person or of being accosted by or on 5527,34). behalf of a sex worker; or 5. 12(2)(b) (b) in a public place invite or solicit any person amended by No. 1/2010 to offer sex work services himself or herself s. 42(2)(Sch. with him or her or another person. item 22(a)) (as amended by No.6312010 Penalty: f or a first offence- I 0 penalty units or ss27, 34). imprisonment for I month; For a second oiTence- 30 penalty units or imprisonment for 3 months; For a subsequent offence-60 penalty units or imprisonment for 6 months. 5. 13 13 Street sex work--offences by sex workers (Heading) inserted by No.1/2010 s. 42(2)(Sch. item23)(as amended by No. 6312010 s. 27). 5. 13(1) (I) Subject to sect ion 14, a person must not for the amended by Nos 1/2010 purpose of sex work intentionally or recklessly s. 42(2)(Sch. solicit or accost any person or loiter in or near- item 24)(as amended by No. 6312010 (a) a place of worship; or s. 27), 7312011 5.4(2). (b) a hospital; or 5.13(1)(c) (c) a school, education and care service premises amended by No. 8012011 or children's services centre; or s. 79(Sch. item 7.3). Authonsed b) the Chtef Parloamentruy Counsel 26 41 ' ex Work Act 1994 o. 102 of 199~ Part 2- 0ITcnccs Connected wirh c;~. Work Is. 14 (d) a public place regularly frequented by children and in which children are present at the time of the soliciting, accosting or loitering. Penalty: For a first offence- ! 0 penalty units or imprisonment for I month; For a second offence- 30 penalty units or imprisonment for 3 months; For a subsequent ofTence-60 penalty units or imprisonment for 6 months. (2) Subject to section 14, a person must not for the 5.13(2) amended by purpose of sex work solicit or accost any person Nos 112010 or loiter in a public place. s. 42(2)(Sch. item 24)(as amended by Penalty: For a first offence- S penalty units or No. 6312010 imprisonment for I month; s. ZT), 7312011 s. 4(2). For a second offence- IS penalty units or imprisonment for 3 months; For a subsequent offence-25 penalty units or imprisonment for 6 months. 14 Exceptions to street sex work offences 5. 14 (Heading) inserted by (1) An act done in a brothel or in any premises on No. 112010 which an escort agency carries on business which, s. 42(2)(Sch. but for this subsection, would constitute an item 25) (as amended by offence against section 12 or 13 does not No.6312010 constin1te an offence against that section if the act s. ZT). is not visible to a person in a public place outside the brothel or those premises. S.14(2) * * * * * repealed by No. 1612004 s. 55. Authon:.ed by the ChtefParhamentary Coun>el 27 42 APPENDIX “A” – LEGISLATIVE INTENT OF S. 213(1)(c) a) Protection from Public Nuisance Speaker Quote Reference Hon. John Crosbie, The purpose of this Bill is to help the citizens of this J.A.R., Minister of Justice country who live in certain of our major urban areas and Vol.72, the police forces of the country to regain the streets Tab 155A, 2nd Reading of Bill C- because they have lost control of the streets and p.21280. 49 neighbourhoods in certain urban areas of this country. Hon. John Crosbie, We believe that the public should be able to use the streets J.A.R., Minister of Justice free from harassment, not only by prostitutes, but by their Vol.72, customers. We think residential neighbourhoods should be Tab 155A, 2nd Reading of Bill C- protected from the problems associated with street p.21283. 49 prostitution, which certainly diminishes the quality of life in these areas. Hon. John Crosbie, So we have to ask ourselves, I suggest, whether the J.A.R., Minister of Justice freedom to contract sexual services in public places is a Vol.73, greater freedom than the right of the average resident to Tab 155L, Appearing before the move through the streets and occupy their homes p.21788. Standing Senate unharassed by noise, confusion, occasional violence and Committee on Legal the unsightly litter of the sex trade discarded in public and Constitutional parking lots and even in their own yards. Affairs Hon. Chris Speyer, The [Legislative Committee on Bill C-49] had the benefit J.A.R., Parliamentary of the evidence of witnesses both for and against the Bill. Vol.72, Secretary to the Their testimony has, for the most part, reinforced my belief Tab 155A, Minister of Justice that Bill C-49 is not only needed urgently, but that it is the p.21314. only possible way to deal effectively and efficiently with the 3rd Reading of Bill C- problems related to street soliciting for the purpose of 49 prostitution. 43 b) Deterring Street Prostitution Generally Speaker Quote Reference Hon. John Crosbie, The number of prostitutes in the street will continue to J.A.R., Minister of Justice increase as long as there is a sufficient supply of Vol.72, customers. More customers are attracted to the street scene Tab 2nd Reading of Bill C- because of the availability of prostitutes. The cycle can be 155A, 49 broken, I suggest, if the law provides an effective deterrent p.21283. to both the customer and the prostitute. The customer who is faced with the prospect of arrest and prosecution is certainly going to be less likely to drive downtown to seek out a prostitute. A diminished supply of customers is going to make the business less attractive to those who now make their living from it. Robert J. Stewart, Throughout the country we have seen an increase in the J.A.R., Vice President, numbers of prostitutes, both male and female and of all Vol.73, Canadian Association ages, since street soliciting has become a legal method of Tab of Chiefs of Police contact. Every day on our streets we see an activity that 155G, has become legal due to the present state of our law. This p.21608. Appearing before the situation has come about as a result of the various court Legislative decisions, such as the previously mentioned case of R. v. Committee on Bill C- Hutt, which states that the conduct of the prostitute must be 49 pressing and persistent. c) Deterring Juvenile Entry into Prostitution Speaker Quote Reference Hon. John Crosbie, [Bill C-49] will also have the benefit of reducing the J.A.R., Minister of Justice opportunities available to young people to become involved Vol.72, in prostitution. We all know that the street life attracts new Tab 2nd Reading of Bill C- participants. The number of prostitutes engaged in the 155A, 49 trade and their customers, when you see them on the streets p.21283. of Toronto, Vancouver, Halifax, or wherever, is visible evidence of the fact that there is money to be made in pursuing these activities with relatively little effort. One who may be a runaway, or whatever can easily see where this activity can be engaged in and how he or she can engage in it so long as street soliciting is allowed to continue unimpeded, as it is at the present time. 44 Speaker Quote Reference Hon. John Crosbie, I believe this Bill may be of some assistance in doing away J.A.R., Minister of Justice with the high visibility of juvenile prostitution which Vol.72, attracts troubled youths to that practice. I believe that Tab 2nd Reading of Bill C- rather than increase the dangers from pimps and the like, it 155A, 49 will have the other effect with respect to juvenile p.21284. prostitution and should be of some help in making prostitution less attractive to those youths who may be heading in that direction. Hon. John Crosbie, Now, to deal with your second last point, juvenile J.A.R., Minister of Justice prostitution; this deals with juvenile prostitution. It is going Vol.72, to be much more difficult for juveniles to get into the Tab 155B, Appearing before the prostitution game if we do not have these sore spots on the p.21348. Legislative city streets of our urban centres where misguided Committee on Bill C- youngsters go because they know if they go there they have 49 an opportunity to get into the prostitution game when they have run away from home. I think it is going to help deal with juvenile prostitution and certainly improve the present situation. d) Deterring Criminal Activity, Drugs and Violence Related to Street Prostitution Speaker Quote Reference Hon. John Crosbie, The problems that arise with soliciting do not arise solely J.A.R., Minister of Justice from the presence of prostitutes and customers in public Vol.72, locations but from the conduct in which they engage while Tab 2nd Reading of Bill C- they are there. Our proposals are intended to remove the 155A, 49 opportunity for them to carry out their business in public p.21282. and to prevent such conduct from occurring in public… What are some of the problems the public feels that we must resolve for them in connection with street soliciting? These problems range from the slowing down or blockage of motor vehicle traffic…as well as the slowing down or blockage of pedestrian movement on the sidewalks to active behaviour in connection with the selling of drugs, with pimping and with being accosted while walking down the street by persons who ask if a pedestrian wants sex or is prepared to sell sex. The residents of neighbourhoods into which street soliciting has moved complain that their 45 Speaker Quote Reference property values are lowered, they are harassed by prostitutes or customers, there is noise and confusion and their children are exposed to the practice of the buying and selling of sex as part of their daily routine. These are the incidents of nuisance from which we must protect the public and this is why we are asking the House to deal with this Bill. Hon. Rob Nicholson, However, there is an even more sinister element to the J.A.R., MP (P.C.), Niagara problem. The Fraser Report, and others, have indicated Vol.72, Falls that prostitution is not the only result of the problem. There Tab are many other types of associated problems which come 155A, 2nd Reading of Bill C- with it. It is estimated that approximately 60 per cent of the p.21292. 49 individuals engaged in prostitution are also heavily engaged in the drug trade. I found this summer that not only were there crimes involving drugs but other crimes as well. I am speaking of crimes of violence involving prostitutes, pimps and the customers of this business. It has come to the point where words cannot describe how seriously the people of this particular area feel. Hon. Bob Kaplan, The domination and exploitation of women and young J.A.R., MP (Lib.), York people has been increased by the fall-out from the Hutt Vol.72, Centre decision in the years since 1978. As well, drugs have been Tab infiltrated into this picture and organized crime has 155A, 2nd Reading of Bill C- exploited the situation. All in all, there is, to the minds of p.21285. 49 those in the Official Opposition, a serious problem which needs to be addressed by Parliament now, and we are pleased that the Government is taking the opportunity to do so. Robert J. Stewart, There is much evidence to show that the quality of life is J.A.R., Vice President, affected and that crime rates increase in those areas that Vol.73, Canadian Association become the operational base for street soliciting. Pimps Tab of Chiefs of Police and drug dealers move into the area, along with other 155G, members of the criminal element who prey on the p.21608. Appearing before the prostitutes and their clients. Legislative Committee on Bill C- 49 46 Speaker Quote Reference Phyllis Alfeld, Mount People see only a prostitute standing on a corner selling J.A.R., Pleasant Action her body to eager buyers. They do not see the criminal Vol.72, Group element who leech off the sex trade. They do not see the Tab 155E, pimps, the thugs, the drug dealers, the sexual perverts p.21512. Appearing before the preying on young children, the violence among the street Legislative people themselves and the violence directed toward the Committee on Bill C- residents. We have seen pimps beat the hell out of 49 prostitutes. We have seen prostitutes beat the hell out of each other. Gordon Price, There is harassment. Harassment, indeed. If our problems J.A.R., Concerned Residents were confined to such things as litter and noise, we would Vol.68, of the West End probably still be prepared to put with them. But what we Tab began to see, particularly later this year, was the 152A, Appearing before the development of street gangs. This is right outside my p.20084. Standing Committee window. on Justice and Legal Affairs William Smeaton, Crime and violence have occurred in this area directly as a J.A.R., Mayor, Niagara Falls result of the unabated trade in sexual services as rival Vol.73, gangs vie for control and introduce to the scene other vices Tab 155F, Appearing before the such as drugs. Recently a murder occurred on Erie Avenue p.21554. Legislative within one block of our city hall, which the police Committee on Bill C- attributed directly to the soliciting problem. 49 47 APPENDIX “B” INTERNATIONAL STREET SOLICITATION LAWS (a) Jurisdictions where street-based solicitation is illegal Australia Street-based solicitation and loitering is illegal (Prostitution Act 1992 (Australian Capital (A.C.T.), s.19).58 Territory) Australia (Northern Street-based solicitation and loitering is illegal (Prostitution Regulation Territory) Act (N.T.), s.10).59 Australia Street-based solicitation is illegal (Prostitution Act 1999 (Qld.), s.73).60 (Queensland) Australia (South Street-based solicitation and loitering is illegal (Summary Offences Act Australia) 1953 (S.A.), s.25).61 Australia Street-based solicitation and loitering is illegal (Sex Industry Offences (Tasmania) Act 2005 (Tas.), s.8).62 Australia (Western Street-based solicitation is illegal (Prostitution Act 2000 (W.A.), s.6).63 Australia) Sweden The purchasing of sex is illegal. Those who obtain or attempt to obtain prostitution are liable to fine or imprisonment.64 USA Street-based prostitution is prohibited in all 50 states.65 England Street-based solicitation and loitering is illegal (Street Offences Act 58 See: Part VII – Statutes and Regulations 59 See: Part VII – Statutes and Regulations 60 See: Part VII – Statutes and Regulations 61 See: Part VII – Statutes and Regulations 62 See: Part VII – Statutes and Regulations 63 See: Part VII – Statutes and Regulations 64 J.A.R., Vol. 82, Tab 164, p. 24977, House of Commons Report on the Standing Committee on Justice and Human Rights, The Challenge of Change, A Study of Canada’s Prostitution Laws (December 2006) 65 J.A.R., Vol. 32, Tab 65C, p. 9190, Transcripts of the Cross-examination of Ronald Weitzer, Exhibit “C” 48 1959 (U.K.), 7 & 8 Eliz. 2, c.57, s.1; Sexual Offences Act 2003 (U.K.), 2003, c.42, Sch.1, s.2; Policing and Crime Act 2009 (U.K.), 2009, c.26, s. 16)66 (b) Jurisdictions Where Street-Based Solicitation is Subject to Restrictions Australia (New Street-based solicitation is legal but prohibited in areas near a dwelling, South Wales) school, church or hospital. (Summary Offences Act 1988 (N.S.W.) s.19)67 Australia (Victoria) Street-based solicitation is legal but solicitation and loitering is prohibited in areas near places of worship, hospitals, schools, and any public place regularly frequented by children and in which children are present (Sex Work Act 1994 (Vic.), s.13)68 Netherlands Many local governments prohibit street-based prostitution. A limited number of smaller municipalities have designated official zones where street-based prostitutes may solicit at specified times.69 Amsterdam, Rotterdam, Eindhoven and The Hague have closed designated street- prostitution zones.70 Germany Street-based prostitution is legal but subject to restrictions set by local governments.71 (c) Jurisdictions Where Street-Based Solicitation is Legal New Zealand Street-based solicitation is legal.72 66 See: Part VII – Statutes and Regulations 67 See: Part VII – Statutes and Regulations 68 See: Part VII – Statutes and Regulations 69 J.A.R., Vol. 47, Tab 110C, 110D, 111, pp. 13574, 13606, 13722, Affidavit of Lotte Constance van de Pol [Dr. van de Pol Affidavit], Exhibit “C” and “D”; and Supplementary Affidavit of Lotte Constance van de Pol [Suppl. Dr. van de Pol Affidavit] at para. 29 70 J.A.R., Vol. 47, Tab 110, 110D, 111, pp. 13529-30, 13606, 13721, Dr. van de Pol Affidavit at paras. 78-79 and “D”; and Suppl. Dr. van de Pol Affidavit at para. 27 71 J.A.R., Vol. 55, Tab 119, p. 16056, Affidavit of Janice Raymond [Raymond Affidavit], para. 56; J.A.R., Vol. 57, Tab 119R, p. 16762, Raymond Affidavit, Exhibit “R” 72 J.A.R., Vol. 62, Tab 125C, p. 18163, Affidavit of Dr. John Pratt, Exhibit “C”