The landscape of prostitution laws in Canada is in the process of undergoing significant changes. These changes come as a result of the Supreme Court of Canada's decision Bedford in which existing prostitution laws were struck down as unconstitutional. They were deemed unconstitutional as they were found to put women who work in the sex industry at greater risk, and this was disproportionate to the harm that the laws were designed to prevent. Thus, Parliament has tabled new legislation to replace the old regime. These laws are not yet in place. For the time being, the old regime continues to operate.

CRIMINAL CODE PROVISIONS

Currently, the Criminal Code of Canada provision dealing with solicitation for the purpose of prostitution is found at section 213, and reads as follows:

213.(1) Every person who in a public place or in any place open to public view (a) stops or attempts to stop any motor vehicle, (b) impedes the free flow of pedestrian or vehicular traffic or ingress to or egress from premises adjacent to that place, or (c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction.

Recently, Parliament has amended the Criminal Code with provisions that make any form of solicitation a criminal offence. Whether these provisions pass constitutional standards remains to be tested, but in the mean time, the general prohibition on solicitation is likely to remain in place for many years to come before the Supreme Court has an opportunity to properly examine the amendments.

WHAT ARE THE PENALTIES FOR PROSTITUTION IN CANADA?

Historically, solicitation for the purpose of prostitution has been dealt with as a nuisance crime. In fact, until recently, it was only solicitation in a public place that was considered a crime. Recent amendments to the Criminal Code aim to make all forms of solicitation a crime. Despite recent amendments, a violation of these laws is generally considered a lower-end crime and is met with proportional criminal penalties, such as a fine or probation. Still, depending on the offender's record or in-house histories, the Crown's position on any given case can vary widely.

JOHN SCHOOL

Most first-time offenders who are charged with solicitation for the purpose of prostitution are given the option to attend a "John School" program. These programs are typically offered by the Salvation Army, Elizabeth Fry Society, or John Howard Society. The accused must pay the requisite fee, and attend several sessions that typically focus on the harms and dangers of prostitution. Upon successful completion of the program, the Crown and Police agree not to pursue the charge. Surprisingly, many accused persons who are given this opportunity have talked their way out of the program due to an attitude problem. In these cases, the accused quickly finds themselves back before the court with few options.

DIVERSION

In some cases where an offender doesn't qualify for John school, but has no other criminogenic aggravating factors, it is possible to have a solicitation charge diverted. This is however, a rare occurrence. Generally, if an offender doesn't qualify for John school, the matter is prosecuted fully, often with a criminal conviction as a consequence.

FINE AND PROBATION

An offender is not always eligible for diversion or John School. In these cases, the Crown's typical position is for a fine or probation. It is rare, if ever, that the Crown advocates for a conditional discharge on a prostitution related offence. Either a fine or suspended sentence with probation will mean that the accused has a criminal record. There are however ways of avoiding being branded with a criminal record on this otherwise low-end offence. If you have been charged with a prostitution related offence, contact Mr. Lewandowski immediately.

JAIL

For offenders with a related criminal record, jail terms are possible on prostitution offences, such as solicitation. Jail sentences can range from several days to months depending on the circumstances of the case.

DEFENDING A PROSTITUTION CHARGE

Most accused men charged with solicitation are caught in what's known as a "John Sweep", or "prostitution sting." Generally, an officer will pose as a prostitute, and await an unsuspecting man who pulls aside and solicits. From there, a signal is given and the "take down" commences. Many clients are shocked to learn that prostitution sting operations are perfectly permissible, even though they do constitute a form of "entrapment." The case law on entrapment allows for police to set up stings in high-crime areas, known for specific crimes. Thus, a prostitution sting in an area known for prostitution will be acceptable and will not be deemed a constitutional violation. Despite this, defences to the charge may still exists. Was there a bona fide attempt to solicit, or was the takedown premature? These an other factual underpinnings can lead to defences or even to Charter remedies. If you have been charged with solicitation for the purpose of prostitution, contact Paul Lewandowski for a consultation.

A CRIMINAL DEFENCE LAWYER'S ANALYSIS OF PROSTITUTION

Paul Lewandowski has successfully defended many men charged with solicitation for the purpose of prostitution. Generally, these clients are normal men, who in a momentary lapse of judgment ventured into unknown territory. Generally, they are caught in a "John Sweep" or prostitution sting, where they end up soliciting a police officer acting undercover. These clients are often petrified of the system they now face. Mr. Lewandowski has had great success ensuring that the impact on the offenders life is as minimal as possible. He has successfully negotiated many charge withdrawals, and diversion arrangements. Mr. Lewandowski recently appeared on CBC Radio to discuss the new prostitution amendments to the Criminal Code, as well as his editorial column that appeared in the Ottawa Sun.

Paul Lewandowski's Editorial on Prostitution Laws in Canada