JUST 1020 Lecture Notes - Lecture 5: Actus Reus, The Offence, Mens Rea
Party to an Offence
This chapter deals with two major issues:
the various routes by means of which an individual may become a party to a
criminal offence; and
i)
the inchoate (in-co-ate) offences of counselling, attempt and conspiracy.
ii)
Modes of Participation in a Criminal Offence
Commit the offence
1.
Aided or abetted
2.
Counselled
3.
Become a party by forming a ‘common intention
4.
Accessory after the fact
5.
s. 21 (1) CC
Section 21(1) of the Criminal Code,
!
that an accused person may become a party to a criminal offence when he or she
actually commits the offence (thereby becoming the “principal”) or when he or she
aids and/or abets another person in the commission of the offence.
→
Committing the Offence
Berryman (1990)
!
Doctrine of innocent agency
!
Aiding and Abetting
Aiding involves the notion of actively providing assistance to that individual.
!
Abetting involves the notion of encouraging the commission of the offence.
!
In drug cases.
!
Proof
The Crown must prove that the person accused of aiding and/or abetting actively
rendered assistance to, and/or encouraged, the principal in the commission of the
offence (actus reus).
!
And it must be established that the accused person intended to render such
assistance or encouragement (mens rea).
!
Passive Acquiescence
Mere passive acquiescence in the commission of an offence or mere presence at the
scene of the crime does not, per se, constitute aiding or abetting unless the accused
person is under a legal duty to act (e.g., a police officer in charge of a lock up).
!
Dunlop and Sylvester
16 yr old girl gang raped by 18 bikers.
!
S.C.C.
!
“A person is not guilty merely because he is present at the scene of a crime and does
nothing to prevent it” p.147
!
acquitted
!
s. 22 CC
Stipulates that an individual who counsels another person to commit an offence will
become a party to that offence if it is ultimately committed.
!
Counseling
The term “counseling” covers
!
advising or recommending someone else to commit an offence
!
as well as finding someone to commit an offence,
!
persistently requesting someone to commit an offence,
!
provoking or instigating someone to commit an offence.
!
Common Intention
An additional way in which an accused person may become a party to an offence
committed by another individual is by means of the concept of “common
intention.”
!
Kirkneis (1990) Break and Enter, rape suffocation. “Abandoning the common
intent”. Acquitted.
!
Forknall –common intention to rape and murder victim. Forknall said couldn’t hit
her. Copeland hit her twice gave to Forknall. Forknall 12 times.
!
Guilty
!
s. 21(2) CC
Codifies the common law principle that, if two or more persons enter into an
agreement to commit a crime and to assist each other in carrying out that plan, then
each of those individuals is liable for all of the criminal acts that may be committed
in pursuit of that agreement
!
Common Purpose
Once the “common purpose” (the intent to commit a crime) has been established,
the Crown is also required to prove that the accused either knew or ought to have
known that the offence committed by the other party or parties was a “probable
consequence” of carrying out the common purpose.
!
Ie gave gun to friend
!
Withdraw from common intention
An accused person may escape liability by asserting that the party who actually
committed the offence(s) in question went beyond the scope of the “common
intention.”
!
In addition, an accused person may be absolved of criminal responsibility under
section 21(2) by communicating –in a timely and unequivocal fashion –an intention
to withdraw from the “common intent.”
!
The context of the communication must be taken into account when assessing its
sufficiency.
!
Accessory after the fact
Section 23(1) of the Criminal Code
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The Crown must prove three elements in order to obtain a conviction:
!
knowledge that a crime has been committed; (i)
the desire to help the offender to escape; and (ii)
a positive act or omission intended to enable the offender to evade capture. (iii)
Accessory
An accused is acquitted of murder. Can a person who was charged with Accessory
after the fact in relation to the murder still be convicted?
!
Inchoate offences
Incomplete-conspiracy, counselling and attempts.
!
Conspiracy
s 465 of the Criminal Code.
!
The basic elements of conspiracy have been defined by the courts to include
!
the existence of an agreement for a common purpose; i)
this agreement existed between two or more persons; and ii)
the common purpose was to commit a crime. iii)
Agreement
There must be an actual agreement between the co-conspirators as the courts will
not recognize an “attempted conspiracy.”
!
The Crown must prove that there was an intention on the part of the alleged co-
conspirators to put their common design into effect.
!
Where one of two alleged co-conspirators does not intend to implement their
criminal purpose, then there can be no conspiracy.
!
Must be real
The Crown must establish that the common purpose at the centre of the alleged
conspiracy is the intention to commit a crime (either an indictable or a summary-
conviction offence).
!
However, the common purpose must be to commit a crime known to the law, it can
not be an imaginary offence.
!
Husband and Wife
There is a rule that a husband and wife may not be convicted of conspiring with each
other
!
Although they may both be convicted of conspiring with other individuals to commit
a crime.
!
Types of Conspiracies
Chain
!
Wheel
!
s. 464 Counselling of an offence not committed
Liability for counselling an offence that was not committed is defined by section 464
of the Criminal Code. The Supreme Court of Canada in the Hamilton case (2005)
added extreme recklessness as an alternative form of mens rea sufficient for
conviction.
!
Sent files that contained B@E, credit card, bomb making.
!
Mens Rea s. 24
Section 24 of the Criminal Code notes that, on interpreting this section, Canadian
courts have emphasized that the mens rea requirements for a criminal attempt may
only be fulfilled by an actual intention to commit a crime.
!
Actus Reus s. 24 (2)
With respect to actus reus, pursuant to section 24(2), the trial judge must decide
whether or not the actions of the accused are sufficiently proximate to the
completed offence.
!
If the actions of the accused are considered to be too "remote," then there may be
no conviction.
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S 24 (1) Attempts
States that the accused person may be convicted of an attempt ''whether or not it
was possible under the circumstances to commit the offence.”
!
Cline (1956)
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Scott (1964) –attempting the impossible
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Violence against Women
Criminal Offences that were challenged
Communicate for the Purpose of Prostitution s 213 C.C.
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Procuring s 212 C.C.
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Live on the avails of prostitution
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Exercise Control
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Keep Common Bawdy House s 210 C.C.
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The Criminal code controlled prostitution in three ways. It is an offence to…
communicate for the purpose of engaging in prostitution in a public place
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To engage in “pimping” that is, procuring a person to be a prostitute –is an offence
!
There are several offences related to keeping a common bawdy house
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A prostitute means…
A person of either sex who engages in prostitution (sex for money)
!
The offence of Communicate for the purpose of engaging in prostitution (soliciting )
in Sec. 213
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Communicate FTP of Prostitution
213.
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(1) Every person who in a public place or in any place open to public view
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(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
!
What is the purpose of this law?
!
This section makes it an offence for both the prostitute and the person seeking the
services of a prostitute to communicate in public
!
In other words, either the client or the prostitute can be charged.
!
Old Section -Procuring 212 (1) C.C.
212.(1) Every one who
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(a) procures, attempts to procure or solicits a person to have illicit sexual
intercourse with another person, whether in or out of Canada,
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(b) inveigles or entices a person who is not a prostitute to a common bawdy-house
for the purpose of illicit sexual intercourse or prostitution,
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(c) knowingly conceals a person in a common bawdy-house,
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(d) procures or attempts to procure a person to become, whether in or out of
Canada, a prostitute,
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(e) procures or attempts to procure a person to leave the usual place of abode of
that person in Canada, if that place is not a common bawdy-house, with intent that
the person may become an inmate or frequenter of a common bawdy-house,
whether in or out of Canada,
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Exercise Control
(f) on the arrival of a person in Canada, directs or causes that person to be directed
or takes or causes that person to be taken, to a common bawdy-house,
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(g) procures a person to enter or leave Canada, for the purpose of prostitution,
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(h) for the purposes of gain, exercises control, direction or influence over the
movements of a person in such manner as to show that he is aiding, abetting or
compelling that person to
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Live on the Avails
engage in or carry on prostitution with any person or generally,
(i) applies or administers to a person or causes that person to take any drug,
intoxicating liquor, matter or thing with intent to stupefy or overpower that
person in order thereby to enable any person to have illicit sexual intercourse
with that person, or
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(j) lives wholly or in part on the avails of prostitution of another person,
!
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Live on the Avails under 18
(2) Despite paragraph (1)(j), every person who lives wholly or in part on the avails of
prostitution of another person who is under the age of eighteen years is guilty of an
indictable offence and liable to imprisonment for a term not exceeding fourteen
years and to a minimum punishment of imprisonment for a term of two years.
!
Presumption
(3) Evidence that a person lives with or is habitually in the company of a prostitute
or lives in a common bawdy-house is, in the absence of evidence to the contrary,
proof that the person lives on the avails of prostitution, for the purposes of
paragraph (1)(j) and subsections (2) and (2.1).
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Investigation
How did the Police investigate prostitution?
!
Why was the law challenged / ruled unconstitutional?
Challenged by current and former prostitutes.
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Three sections of code:
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Communicate FTP of Prostitution.
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Live on the Avails of Prostitution.
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Keep Common Bawdy House.
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The Defendants
Terri Jean Bedford as of 2010 had 14 years of
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experience working as a prostitute in various Canadian cities. She worked as a street
prostitute, a massage parlour attendant, an escort, an owner and manager of an
escort agency, and a dominatrix.
!
Not working as a prostitute but wants to return to work as a dominatrix.
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Concerned that she will face criminal liability and those who help her as well.
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Amy Lebovitch was born in Montréal. She has worked as a street prostitute, escort
and worked in a fetish house.
!
She feels that it is safer to work inside rather than on the street and would like to
work out of her house without the fear of criminality.
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She is a spokesperson for Sex Professionals of Canada
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Valerie Scott. She has worked as a street prostitute, escort and has worked out of
her house. If this challenge is successful, she intends to run an indoor prostitution
business. She feels that working indoors is the best way to prevent violence against
prostitutes.
!
[15] The three applicants applied pursuant to rule 14.05(3)(g.1) of the Rules of Civil
Procedure,
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Their Claim
They argued that these restrictions on prostitution put the safety and lives of
prostitutes at risk, by preventing them from implementing certain
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safety measures —such as hiring security guards or “screening” potential clients —
that could protect them from violence. A breach of section 7 of the charter. They
also alleged that s. 213(1)(c) infringes the freedom of expression guarantee under s.
2(b) of the Charter, and that none of the provisions are saved under section 1 of the
Charter.
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SCC on Communicate FTP of Prostitution
purpose of the communicating prohibition in s. 213(1)(c) is not to eliminate street
prostitution for its own sake, but to take prostitution off the streets. This negatively
impacts the safety of street prostitutes.
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Supreme Court says this is a grossly disproportionate response to the possibility of
nuisance caused by street prostitution.
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Supreme Court on Live on the Avails
the purpose of
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the living on the avails of prostitution prohibition in s. 212(1)(j) is to target pimps
and the parasitic, exploitative conduct in which they engage. The law, however,
punishes everyone who lives on the avails of prostitution without distinguishing
between those who exploit prostitutes and those who could increase the safety and
security of prostitutes, for example, legitimate drivers, managers, or bodyguards. It
also includes anyone involved in business with a prostitute, such as accountants or
receptionists.
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SCC on Live on the Avails
In these ways,
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the law includes some conduct that bears no relation to its purpose of preventing the
exploitation of prostitutes. The living on the avails provision is consequently
overbroad.
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Supreme Court on Bawdy houses
The harms to prostitutes identified by the courts below, such as being prevented
from working in safer fixed indoor locations and from resorting to safe houses, are
grossly disproportionate to the deterrence of community disruption. Parliament has
the power to regulate against nuisances, but not at the cost of the health, safety
and lives of prostitutes
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Concluding Remarks
Concluding that each of the challenged provisions violates the Charter does not
mean that Parliament is precluded from imposing limits on where and how
prostitution may be conducted, as long as it does so in a way that does not infringe
the constitutional rights of prostitutes. The regulation of prostitution is a complex
and delicate matter. It will be for Parliament, should it choose to do so, to devise a
new approach, reflecting different elements of the existing regime. Considering all
the interests at stake, the declaration of invalidity should be suspended for one
year.
!
New Zealand Model
In 2003, New Zealand passed the Prostitution Reform Act, meant to decriminalize
certain activities related to prostitution. It was also created to:
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Protect sex workers from exploitation, and safeguard their human rights
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Promote the safety, health and welfare of sex workers
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Create a prostitution framework that is conducive to public health
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Prohibit the use in prostitution of persons under 18
!
Obtaining Sexual Services for Consideration 286.1 CC
286.1 (1) Everyone who, in any place, obtains for consideration, or communicates
with anyone for the purpose of obtaining for consideration, the sexual services of a
person is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more
than five years and a minimum punishment of,
(i) in the case where the offence is committed in a public place, or in any
place open to public view, that is or is next to a park or the grounds of a school or
religious institution or that is or is next to any other place where persons under the
age of 18 can reasonably be expected to be present,
Obtaining Sexual Services
(A) for a first offence, a fine of" $2,000, and
(B) for each subsequent offence, a fine of" $4,000, or
(ii) in any other case,
(A) for a first offence, a fine of" $1,000, and
(B) for each subsequent offence, a fine of" $2,000; or
(b) an offence punishable on summary conviction and liable to
imprisonment for a term of not more than 18 months and a minimum punishment of,
Obtaining Sexual Services
(i) in the case referred to in subparagraph (a)(i),
(A) for a first offence, a fine of" $1,000, and
(B) for each subsequent offence, a fine of" $2,000, or
(ii) in any other case,
(A) for a first offence, a fine of" $500, and
(B) for each subsequent offence, a fine of" $1,000.
Sexual Services Under 18 years
(2) Everyone who, in any place, obtains for consideration, or communicates with
anyone for the purpose of obtaining for consideration, the sexual services of a
person under the age of 18 years is guilty of an indictable offence and liable to
imprisonment for a term of not more than 10 years and to a minimum punishment of
imprisonment for a term of
(a) for a first offence, six months; and
(b) for each subsequent offence, one year.
Material Benefit
286.2 (1) Everyone who receives a financial or other material benefit, knowing that
it is obtained by or derived directly or indirectly from the commission of an offence
under subsection 286.1(1), is guilty of an indictable offence and liable to
imprisonment for a term of not more than 10 years
(2) Everyone who receives a financial or other material benefit, knowing that it is
obtained by or derived directly or indirectly from the commission of an offence
under subsection 286.1(2), is guilty of an indictable offence and liable to
imprisonment for a term of not more than 14 years and to a minimum punishment of
imprisonment for a term of two years.
Presumption
(3) For the purposes of subsections (1) and (2), evidence that a person lives with or is
habitually in the company of a person who offers or provides sexual services for
consideration is, in the absence of evidence to the contrary, proof that the person
received a financial or other material benefit from those services.
Procuring286.3 CC
Everyone who procures a person to offer or provide sexual services for consideration
or, for the purpose of facilitating an offence under subsection 286.1(1), recruits,
holds, conceals or harbours a person who offers or provides sexual services for
consideration, or exercises control, direction or influence over the movements of
that person, is guilty of an indictable offence and liable to imprisonment for a term
of not more than 14 years.
Procuring Under 18 years
Everyone who procures a person under the age of 18 years to offer or provide sexual
services for consideration or, for the purpose of facilitating an offence under
subsection 286.1(2), recruits, holds, conceals or harbours a person under the age of
18 who offers or provides sexual services for consideration, or exercises control,
direction or influence over the movements of that person, is guilty of an indictable
offence and liable to imprisonment for a term of not more than 14 years and to a
minimum punishment of imprisonment for a term of five years.
Advertising Sexual Services 286.4 CC
Everyone who knowingly advertises an offer to provide sexual services for
consideration is guilty of
-
(a) an indictable offence and liable to imprisonment for a term of not
more than five years; or
(b) an offence punishable on summary conviction and liable to
imprisonment for a term of not more than 18 months.
Exceptions
Advertise for own sexual services.
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Keep Common Bawdy House… s 210 (1) C.C.
210. (1) Every one who keeps a common bawdy-house is guilty of an indictable
offence and liable to imprisonment for a term not exceeding two years.
!
What is a common bawdy house???
a place that is kept or occupied, or resorted to by one or more persons, for the
purpose of prostitution or the practice of acts of indecency.
!
Keep Common Bawdy House… s 210 (1) C.C.
210. (1) Every one who keeps a common bawdy-house is guilty of an indictable
offence and liable to imprisonment for a term not exceeding two years.
!
Convicted of Keeping a Common Bawdy House
When a person is convicted of keeping a common bawdy house, the court serves a
notice to the landlord, property owner or manager saying that the tenant or occupier
has been convicted of this offence.
!
The landlord is then expected to take all reasonable steps to evict the person
charged, and if he or she doesn't and the person gets charged again then the
landlord or property owner will also be charged.
!
Found ins
(2) Every one who
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(a) is an inmate of a common bawdy-house,
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(b) is found, without lawful excuse, in a common bawdy-house, or
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(c) as owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or
control of any place, knowingly permits the place or any part thereof to be let or
used for the purposes of a common bawdy-house,
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Penalty for Found in
is guilty of an offence punishable on summary conviction.
!
What do you think?
Do you believe these offences will withstand a constitutional challenge?
!
Indecent Act
173. (1) Everyone who wilfully does an indecent act in a public place in the presence
of one or more persons, or in any place with intent to insult or offend any person,
!
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not
more than two years; or
!
(b) is guilty of an offence punishable on summary conviction and is liable to
imprisonment for a term of not more than six months.
!
Extortion 346(1) CC
Every one commits extortion who, without reasonable justification or excuse and
with intent to obtain anything, by threats, accusations, menaces or violence induces
or attempts to induce any person, whether or not he is the person threatened,
accused or menaced or to whom violence is shown, to do anything or cause anything
to be done.
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Extortion Penalties
Every person who commits extortion is guilty of an indictable offence and liable
!
(a) if a restricted firearm or prohibited firearm is used in the commission of the
offence or if any firearm is used in the commission of the offence and the offence is
committed for the benefit of, at the direction of, or in association with, a criminal
organization, to imprisonment for life and to a minimum punishment of
imprisonment for a term of
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(i) in the case of a first offence, five years, and
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(ii) in the case of a second or subsequent offence, seven years;
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(a.1) in any other case where a firearm is used in the commission of the offence, to
imprisonment for life and to a minimum punishment of imprisonment for a term of
four years; and
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(b) in any other case, to imprisonment for life.
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Cause Disturbance 175(1)
Every one who
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(a) not being in a dwelling-house, causes a disturbance in or near a public place,
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(i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene
language,
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(ii) by being drunk, or
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(iii) by impeding or molesting other persons,
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(b) openly exposes or exhibits an indecent exhibition in a public place,
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(c) loiters in a public place and in any way obstructs persons who are in that place,
or
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(d) disturbs the peace and quiet of the occupants
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of a dwelling-house by discharging firearms or by other disorderly conduct in a public
place or who, not being an occupant of a dwelling-house comprised in a particular
building or structure, disturbs the peace and quiet of the occupants of a dwelling-
house comprised in the building or structure by discharging firearms or by other
disorderly conduct in any part of a building or structure to which, at the time of such
conduct, the occupants of two or more dwelling-houses comprised in the building or
structure have access as of right or by invitation, express or implied,
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is guilty of an offence punishable on summary conviction.
!
W5 Ch7 Parties & Accessories
#$%&'()*+, -./&%)&*,0+,1230
32425,67
Party to an Offence
This chapter deals with two major issues:
the various routes by means of which an individual may become a party to a
criminal offence; and
i)
the inchoate (in-co-ate) offences of counselling, attempt and conspiracy. ii)
Modes of Participation in a Criminal Offence
Commit the offence1.
Aided or abetted2.
Counselled3.
Become a party by forming a ‘common intention4.
Accessory after the fact5.
s. 21 (1) CC
Section 21(1) of the Criminal Code,
!
that an accused person may become a party to a criminal offence when he or she
actually commits the offence (thereby becoming the “principal”) or when he or she
aids and/or abets another person in the commission of the offence.
→
Committing the Offence
Berryman (1990)
!
Doctrine of innocent agency
!
Aiding and Abetting
Aiding involves the notion of actively providing assistance to that individual.
!
Abetting involves the notion of encouraging the commission of the offence.
!
In drug cases.
!
Proof
The Crown must prove that the person accused of aiding and/or abetting actively
rendered assistance to, and/or encouraged, the principal in the commission of the
offence (actus reus).
!
And it must be established that the accused person intended to render such
assistance or encouragement (mens rea).
!
Passive Acquiescence
Mere passive acquiescence in the commission of an offence or mere presence at the
scene of the crime does not, per se, constitute aiding or abetting unless the accused
person is under a legal duty to act (e.g., a police officer in charge of a lock up).
!
Dunlop and Sylvester
16 yr old girl gang raped by 18 bikers.
!
S.C.C.
!
“A person is not guilty merely because he is present at the scene of a crime and does
nothing to prevent it” p.147
!
acquitted
!
s. 22 CC
Stipulates that an individual who counsels another person to commit an offence will
become a party to that offence if it is ultimately committed.
!
Counseling
The term “counseling” covers
!
advising or recommending someone else to commit an offence
!
as well as finding someone to commit an offence,
!
persistently requesting someone to commit an offence,
!
provoking or instigating someone to commit an offence.
!
Common Intention
An additional way in which an accused person may become a party to an offence
committed by another individual is by means of the concept of “common
intention.”
!
Kirkneis (1990) Break and Enter, rape suffocation. “Abandoning the common
intent”. Acquitted.
!
Forknall –common intention to rape and murder victim. Forknall said couldn’t hit
her. Copeland hit her twice gave to Forknall. Forknall 12 times.
!
Guilty
!
s. 21(2) CC
Codifies the common law principle that, if two or more persons enter into an
agreement to commit a crime and to assist each other in carrying out that plan, then
each of those individuals is liable for all of the criminal acts that may be committed
in pursuit of that agreement
!
Common Purpose
Once the “common purpose” (the intent to commit a crime) has been established,
the Crown is also required to prove that the accused either knew or ought to have
known that the offence committed by the other party or parties was a “probable
consequence” of carrying out the common purpose.
!
Ie gave gun to friend
!
Withdraw from common intention
An accused person may escape liability by asserting that the party who actually
committed the offence(s) in question went beyond the scope of the “common
intention.”
!
In addition, an accused person may be absolved of criminal responsibility under
section 21(2) by communicating –in a timely and unequivocal fashion –an intention
to withdraw from the “common intent.”
!
The context of the communication must be taken into account when assessing its
sufficiency.
!
Accessory after the fact
Section 23(1) of the Criminal Code
!
The Crown must prove three elements in order to obtain a conviction:
!
knowledge that a crime has been committed; (i)
the desire to help the offender to escape; and (ii)
a positive act or omission intended to enable the offender to evade capture. (iii)
Accessory
An accused is acquitted of murder. Can a person who was charged with Accessory
after the fact in relation to the murder still be convicted?
!
Inchoate offences
Incomplete-conspiracy, counselling and attempts.
!
Conspiracy
s 465 of the Criminal Code.
!
The basic elements of conspiracy have been defined by the courts to include
!
the existence of an agreement for a common purpose; i)
this agreement existed between two or more persons; and ii)
the common purpose was to commit a crime. iii)
Agreement
There must be an actual agreement between the co-conspirators as the courts will
not recognize an “attempted conspiracy.”
!
The Crown must prove that there was an intention on the part of the alleged co-
conspirators to put their common design into effect.
!
Where one of two alleged co-conspirators does not intend to implement their
criminal purpose, then there can be no conspiracy.
!
Must be real
The Crown must establish that the common purpose at the centre of the alleged
conspiracy is the intention to commit a crime (either an indictable or a summary-
conviction offence).
!
However, the common purpose must be to commit a crime known to the law, it can
not be an imaginary offence.
!
Husband and Wife
There is a rule that a husband and wife may not be convicted of conspiring with each
other
!
Although they may both be convicted of conspiring with other individuals to commit
a crime.
!
Types of Conspiracies
Chain
!
Wheel
!
s. 464 Counselling of an offence not committed
Liability for counselling an offence that was not committed is defined by section 464
of the Criminal Code. The Supreme Court of Canada in the Hamilton case (2005)
added extreme recklessness as an alternative form of mens rea sufficient for
conviction.
!
Sent files that contained B@E, credit card, bomb making.
!
Mens Rea s. 24
Section 24 of the Criminal Code notes that, on interpreting this section, Canadian
courts have emphasized that the mens rea requirements for a criminal attempt may
only be fulfilled by an actual intention to commit a crime.
!
Actus Reus s. 24 (2)
With respect to actus reus, pursuant to section 24(2), the trial judge must decide
whether or not the actions of the accused are sufficiently proximate to the
completed offence.
!
If the actions of the accused are considered to be too "remote," then there may be
no conviction.
!
S 24 (1) Attempts
States that the accused person may be convicted of an attempt ''whether or not it
was possible under the circumstances to commit the offence.”
!
Cline (1956)
!
Scott (1964) –attempting the impossible
!
Violence against Women
Criminal Offences that were challenged
Communicate for the Purpose of Prostitution s 213 C.C.
!
Procuring s 212 C.C.
!
Live on the avails of prostitution
!
Exercise Control
!
Keep Common Bawdy House s 210 C.C.
!
The Criminal code controlled prostitution in three ways. It is an offence to…
communicate for the purpose of engaging in prostitution in a public place
!
To engage in “pimping” that is, procuring a person to be a prostitute –is an offence
!
There are several offences related to keeping a common bawdy house
!
A prostitute means…
A person of either sex who engages in prostitution (sex for money)
!
The offence of Communicate for the purpose of engaging in prostitution (soliciting )
in Sec. 213
!
Communicate FTP of Prostitution
213.
!
(1) Every person who in a public place or in any place open to public view
!
(a) Stops or attempts to stop any motor vehicle,
(b) Impedes the free flow of pedestrian or vehicular traffic or ingress to or egress
from premises adjacent to that place, or
(c) stops or attempts to stop any person or in any manner communicates or attempts
to communicate with any person
For the purpose of engaging in prostitution or of obtaining the sexual services of a
prostitute is guilty of an offence punishable on summary conviction
!
What is the purpose of this law?
!
This section makes it an offence for both the prostitute and the person seeking the
services of a prostitute to communicate in public
!
In other words, either the client or the prostitute can be charged.
!
Old Section -Procuring 212 (1) C.C.
212.(1) Every one who
!
(a) procures, attempts to procure or solicits a person to have illicit sexual
intercourse with another person, whether in or out of Canada,
!
(b) inveigles or entices a person who is not a prostitute to a common bawdy-house
for the purpose of illicit sexual intercourse or prostitution,
!
(c) knowingly conceals a person in a common bawdy-house,
!
(d) procures or attempts to procure a person to become, whether in or out of
Canada, a prostitute,
!
(e) procures or attempts to procure a person to leave the usual place of abode of
that person in Canada, if that place is not a common bawdy-house, with intent that
the person may become an inmate or frequenter of a common bawdy-house,
whether in or out of Canada,
!
Exercise Control
(f) on the arrival of a person in Canada, directs or causes that person to be directed
or takes or causes that person to be taken, to a common bawdy-house,
!
(g) procures a person to enter or leave Canada, for the purpose of prostitution,
!
(h) for the purposes of gain, exercises control, direction or influence over the
movements of a person in such manner as to show that he is aiding, abetting or
compelling that person to
!
Live on the Avails
engage in or carry on prostitution with any person or generally,
(i) applies or administers to a person or causes that person to take any drug,
intoxicating liquor, matter or thing with intent to stupefy or overpower that
person in order thereby to enable any person to have illicit sexual intercourse
with that person, or
!
(j) lives wholly or in part on the avails of prostitution of another person,
!
!
Live on the Avails under 18
(2) Despite paragraph (1)(j), every person who lives wholly or in part on the avails of
prostitution of another person who is under the age of eighteen years is guilty of an
indictable offence and liable to imprisonment for a term not exceeding fourteen
years and to a minimum punishment of imprisonment for a term of two years.
!
Presumption
(3) Evidence that a person lives with or is habitually in the company of a prostitute
or lives in a common bawdy-house is, in the absence of evidence to the contrary,
proof that the person lives on the avails of prostitution, for the purposes of
paragraph (1)(j) and subsections (2) and (2.1).
!
Investigation
How did the Police investigate prostitution?
!
Why was the law challenged / ruled unconstitutional?
Challenged by current and former prostitutes.
!
Three sections of code:
!
Communicate FTP of Prostitution.
!
Live on the Avails of Prostitution.
!
Keep Common Bawdy House.
!
The Defendants
Terri Jean Bedford as of 2010 had 14 years of
!
experience working as a prostitute in various Canadian cities. She worked as a street
prostitute, a massage parlour attendant, an escort, an owner and manager of an
escort agency, and a dominatrix.
!
Not working as a prostitute but wants to return to work as a dominatrix.
!
Concerned that she will face criminal liability and those who help her as well.
!
Amy Lebovitch was born in Montréal. She has worked as a street prostitute, escort
and worked in a fetish house.
!
She feels that it is safer to work inside rather than on the street and would like to
work out of her house without the fear of criminality.
!
She is a spokesperson for Sex Professionals of Canada
!
Valerie Scott. She has worked as a street prostitute, escort and has worked out of
her house. If this challenge is successful, she intends to run an indoor prostitution
business. She feels that working indoors is the best way to prevent violence against
prostitutes.
!
[15] The three applicants applied pursuant to rule 14.05(3)(g.1) of the Rules of Civil
Procedure,
!
Their Claim
They argued that these restrictions on prostitution put the safety and lives of
prostitutes at risk, by preventing them from implementing certain
!
safety measures —such as hiring security guards or “screening” potential clients —
that could protect them from violence. A breach of section 7 of the charter. They
also alleged that s. 213(1)(c) infringes the freedom of expression guarantee under s.
2(b) of the Charter, and that none of the provisions are saved under section 1 of the
Charter.
!
SCC on Communicate FTP of Prostitution
purpose of the communicating prohibition in s. 213(1)(c) is not to eliminate street
prostitution for its own sake, but to take prostitution off the streets. This negatively
impacts the safety of street prostitutes.
!
Supreme Court says this is a grossly disproportionate response to the possibility of
nuisance caused by street prostitution.
!
Supreme Court on Live on the Avails
the purpose of
!
the living on the avails of prostitution prohibition in s. 212(1)(j) is to target pimps
and the parasitic, exploitative conduct in which they engage. The law, however,
punishes everyone who lives on the avails of prostitution without distinguishing
between those who exploit prostitutes and those who could increase the safety and
security of prostitutes, for example, legitimate drivers, managers, or bodyguards. It
also includes anyone involved in business with a prostitute, such as accountants or
receptionists.
!
SCC on Live on the Avails
In these ways,
!
the law includes some conduct that bears no relation to its purpose of preventing the
exploitation of prostitutes. The living on the avails provision is consequently
overbroad.
!
Supreme Court on Bawdy houses
The harms to prostitutes identified by the courts below, such as being prevented
from working in safer fixed indoor locations and from resorting to safe houses, are
grossly disproportionate to the deterrence of community disruption. Parliament has
the power to regulate against nuisances, but not at the cost of the health, safety
and lives of prostitutes
!
Concluding Remarks
Concluding that each of the challenged provisions violates the Charter does not
mean that Parliament is precluded from imposing limits on where and how
prostitution may be conducted, as long as it does so in a way that does not infringe
the constitutional rights of prostitutes. The regulation of prostitution is a complex
and delicate matter. It will be for Parliament, should it choose to do so, to devise a
new approach, reflecting different elements of the existing regime. Considering all
the interests at stake, the declaration of invalidity should be suspended for one
year.
!
New Zealand Model
In 2003, New Zealand passed the Prostitution Reform Act, meant to decriminalize
certain activities related to prostitution. It was also created to:
!
Protect sex workers from exploitation, and safeguard their human rights
!
Promote the safety, health and welfare of sex workers
!
Create a prostitution framework that is conducive to public health
!
Prohibit the use in prostitution of persons under 18
!
Obtaining Sexual Services for Consideration 286.1 CC
286.1 (1) Everyone who, in any place, obtains for consideration, or communicates
with anyone for the purpose of obtaining for consideration, the sexual services of a
person is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more
than five years and a minimum punishment of,
(i) in the case where the offence is committed in a public place, or in any
place open to public view, that is or is next to a park or the grounds of a school or
religious institution or that is or is next to any other place where persons under the
age of 18 can reasonably be expected to be present,
Obtaining Sexual Services
(A) for a first offence, a fine of" $2,000, and
(B) for each subsequent offence, a fine of" $4,000, or
(ii) in any other case,
(A) for a first offence, a fine of" $1,000, and
(B) for each subsequent offence, a fine of" $2,000; or
(b) an offence punishable on summary conviction and liable to
imprisonment for a term of not more than 18 months and a minimum punishment of,
Obtaining Sexual Services
(i) in the case referred to in subparagraph (a)(i),
(A) for a first offence, a fine of" $1,000, and
(B) for each subsequent offence, a fine of" $2,000, or
(ii) in any other case,
(A) for a first offence, a fine of" $500, and
(B) for each subsequent offence, a fine of" $1,000.
Sexual Services Under 18 years
(2) Everyone who, in any place, obtains for consideration, or communicates with
anyone for the purpose of obtaining for consideration, the sexual services of a
person under the age of 18 years is guilty of an indictable offence and liable to
imprisonment for a term of not more than 10 years and to a minimum punishment of
imprisonment for a term of
(a) for a first offence, six months; and
(b) for each subsequent offence, one year.
Material Benefit
286.2 (1) Everyone who receives a financial or other material benefit, knowing that
it is obtained by or derived directly or indirectly from the commission of an offence
under subsection 286.1(1), is guilty of an indictable offence and liable to
imprisonment for a term of not more than 10 years
(2) Everyone who receives a financial or other material benefit, knowing that it is
obtained by or derived directly or indirectly from the commission of an offence
under subsection 286.1(2), is guilty of an indictable offence and liable to
imprisonment for a term of not more than 14 years and to a minimum punishment of
imprisonment for a term of two years.
Presumption
(3) For the purposes of subsections (1) and (2), evidence that a person lives with or is
habitually in the company of a person who offers or provides sexual services for
consideration is, in the absence of evidence to the contrary, proof that the person
received a financial or other material benefit from those services.
Procuring286.3 CC
Everyone who procures a person to offer or provide sexual services for consideration
or, for the purpose of facilitating an offence under subsection 286.1(1), recruits,
holds, conceals or harbours a person who offers or provides sexual services for
consideration, or exercises control, direction or influence over the movements of
that person, is guilty of an indictable offence and liable to imprisonment for a term
of not more than 14 years.
Procuring Under 18 years
Everyone who procures a person under the age of 18 years to offer or provide sexual
services for consideration or, for the purpose of facilitating an offence under
subsection 286.1(2), recruits, holds, conceals or harbours a person under the age of
18 who offers or provides sexual services for consideration, or exercises control,
direction or influence over the movements of that person, is guilty of an indictable
offence and liable to imprisonment for a term of not more than 14 years and to a
minimum punishment of imprisonment for a term of five years.
Advertising Sexual Services 286.4 CC
Everyone who knowingly advertises an offer to provide sexual services for
consideration is guilty of
-
(a) an indictable offence and liable to imprisonment for a term of not
more than five years; or
(b) an offence punishable on summary conviction and liable to
imprisonment for a term of not more than 18 months.
Exceptions
Advertise for own sexual services.
!
Keep Common Bawdy House… s 210 (1) C.C.
210. (1) Every one who keeps a common bawdy-house is guilty of an indictable
offence and liable to imprisonment for a term not exceeding two years.
!
What is a common bawdy house???
a place that is kept or occupied, or resorted to by one or more persons, for the
purpose of prostitution or the practice of acts of indecency.
!
Keep Common Bawdy House… s 210 (1) C.C.
210. (1) Every one who keeps a common bawdy-house is guilty of an indictable
offence and liable to imprisonment for a term not exceeding two years.
!
Convicted of Keeping a Common Bawdy House
When a person is convicted of keeping a common bawdy house, the court serves a
notice to the landlord, property owner or manager saying that the tenant or occupier
has been convicted of this offence.
!
The landlord is then expected to take all reasonable steps to evict the person
charged, and if he or she doesn't and the person gets charged again then the
landlord or property owner will also be charged.
!
Found ins
(2) Every one who
!
(a) is an inmate of a common bawdy-house,
!
(b) is found, without lawful excuse, in a common bawdy-house, or
!
(c) as owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or
control of any place, knowingly permits the place or any part thereof to be let or
used for the purposes of a common bawdy-house,
!
Penalty for Found in
is guilty of an offence punishable on summary conviction.
!
What do you think?
Do you believe these offences will withstand a constitutional challenge?
!
Indecent Act
173. (1) Everyone who wilfully does an indecent act in a public place in the presence
of one or more persons, or in any place with intent to insult or offend any person,
!
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not
more than two years; or
!
(b) is guilty of an offence punishable on summary conviction and is liable to
imprisonment for a term of not more than six months.
!
Extortion 346(1) CC
Every one commits extortion who, without reasonable justification or excuse and
with intent to obtain anything, by threats, accusations, menaces or violence induces
or attempts to induce any person, whether or not he is the person threatened,
accused or menaced or to whom violence is shown, to do anything or cause anything
to be done.
!
Extortion Penalties
Every person who commits extortion is guilty of an indictable offence and liable
!
(a) if a restricted firearm or prohibited firearm is used in the commission of the
offence or if any firearm is used in the commission of the offence and the offence is
committed for the benefit of, at the direction of, or in association with, a criminal
organization, to imprisonment for life and to a minimum punishment of
imprisonment for a term of
!
(i) in the case of a first offence, five years, and
!
(ii) in the case of a second or subsequent offence, seven years;
!
(a.1) in any other case where a firearm is used in the commission of the offence, to
imprisonment for life and to a minimum punishment of imprisonment for a term of
four years; and
!
(b) in any other case, to imprisonment for life.
!
Cause Disturbance 175(1)
Every one who
!
(a) not being in a dwelling-house, causes a disturbance in or near a public place,
!
(i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene
language,
!
(ii) by being drunk, or
!
(iii) by impeding or molesting other persons,
!
(b) openly exposes or exhibits an indecent exhibition in a public place,
!
(c) loiters in a public place and in any way obstructs persons who are in that place,
or
!
(d) disturbs the peace and quiet of the occupants
!
of a dwelling-house by discharging firearms or by other disorderly conduct in a public
place or who, not being an occupant of a dwelling-house comprised in a particular
building or structure, disturbs the peace and quiet of the occupants of a dwelling-
house comprised in the building or structure by discharging firearms or by other
disorderly conduct in any part of a building or structure to which, at the time of such
conduct, the occupants of two or more dwelling-houses comprised in the building or
structure have access as of right or by invitation, express or implied,
!
is guilty of an offence punishable on summary conviction.
!
W5 Ch7 Parties & Accessories
#$%&'()*+, -./&%)&*,0+,1230 32425,67
Party to an Offence
This chapter deals with two major issues:
the various routes by means of which an individual may become a party to a
criminal offence; and
i)
the inchoate (in-co-ate) offences of counselling, attempt and conspiracy. ii)
Modes of Participation in a Criminal Offence
Commit the offence1.
Aided or abetted2.
Counselled3.
Become a party by forming a ‘common intention4.
Accessory after the fact5.
s. 21 (1) CC
Section 21(1) of the Criminal Code,
!
that an accused person may become a party to a criminal offence when he or she
actually commits the offence (thereby becoming the “principal”) or when he or she
aids and/or abets another person in the commission of the offence.
→
Committing the Offence
Berryman (1990)
!
Doctrine of innocent agency
!
Aiding and Abetting
Aiding involves the notion of actively providing assistance to that individual.
!
Abetting involves the notion of encouraging the commission of the offence.
!
In drug cases.
!
Proof
The Crown must prove that the person accused of aiding and/or abetting actively
rendered assistance to, and/or encouraged, the principal in the commission of the
offence (actus reus).
!
And it must be established that the accused person intended to render such
assistance or encouragement (mens rea).
!
Passive Acquiescence
Mere passive acquiescence in the commission of an offence or mere presence at the
scene of the crime does not, per se, constitute aiding or abetting unless the accused
person is under a legal duty to act (e.g., a police officer in charge of a lock up).
!
Dunlop and Sylvester
16 yr old girl gang raped by 18 bikers.
!
S.C.C.
!
“A person is not guilty merely because he is present at the scene of a crime and does
nothing to prevent it” p.147
!
acquitted
!
s. 22 CC
Stipulates that an individual who counsels another person to commit an offence will
become a party to that offence if it is ultimately committed.
!
Counseling
The term “counseling” covers
!
advising or recommending someone else to commit an offence
!
as well as finding someone to commit an offence,
!
persistently requesting someone to commit an offence,
!
provoking or instigating someone to commit an offence.
!
Common Intention
An additional way in which an accused person may become a party to an offence
committed by another individual is by means of the concept of “common
intention.”
!
Kirkneis (1990) Break and Enter, rape suffocation. “Abandoning the common
intent”. Acquitted.
!
Forknall –common intention to rape and murder victim. Forknall said couldn’t hit
her. Copeland hit her twice gave to Forknall. Forknall 12 times.
!
Guilty
!
s. 21(2) CC
Codifies the common law principle that, if two or more persons enter into an
agreement to commit a crime and to assist each other in carrying out that plan, then
each of those individuals is liable for all of the criminal acts that may be committed
in pursuit of that agreement
!
Common Purpose
Once the “common purpose” (the intent to commit a crime) has been established,
the Crown is also required to prove that the accused either knew or ought to have
known that the offence committed by the other party or parties was a “probable
consequence” of carrying out the common purpose.
!
Ie gave gun to friend
!
Withdraw from common intention
An accused person may escape liability by asserting that the party who actually
committed the offence(s) in question went beyond the scope of the “common
intention.”
!
In addition, an accused person may be absolved of criminal responsibility under
section 21(2) by communicating –in a timely and unequivocal fashion –an intention
to withdraw from the “common intent.”
!
The context of the communication must be taken into account when assessing its
sufficiency.
!
Accessory after the fact
Section 23(1) of the Criminal Code
!
The Crown must prove three elements in order to obtain a conviction:
!
knowledge that a crime has been committed;
(i)
the desire to help the offender to escape; and
(ii)
a positive act or omission intended to enable the offender to evade capture.
(iii)
Accessory
An accused is acquitted of murder. Can a person who was charged with Accessory
after the fact in relation to the murder still be convicted?
!
Inchoate offences
Incomplete-conspiracy, counselling and attempts.
!
Conspiracy
s 465 of the Criminal Code.
!
The basic elements of conspiracy have been defined by the courts to include
!
the existence of an agreement for a common purpose;
i)
this agreement existed between two or more persons; and
ii)
the common purpose was to commit a crime.
iii)
Agreement
There must be an actual agreement between the co-conspirators as the courts will
not recognize an “attempted conspiracy.”
!
The Crown must prove that there was an intention on the part of the alleged co-
conspirators to put their common design into effect.
!
Where one of two alleged co-conspirators does not intend to implement their
criminal purpose, then there can be no conspiracy.
!
Must be real
The Crown must establish that the common purpose at the centre of the alleged
conspiracy is the intention to commit a crime (either an indictable or a summary-
conviction offence).
!
However, the common purpose must be to commit a crime known to the law, it can
not be an imaginary offence.
!
Husband and Wife
There is a rule that a husband and wife may not be convicted of conspiring with each
other
!
Although they may both be convicted of conspiring with other individuals to commit
a crime.
!
Types of Conspiracies
Chain
!
Wheel
!
s. 464 Counselling of an offence not committed
Liability for counselling an offence that was not committed is defined by section 464
of the Criminal Code. The Supreme Court of Canada in the Hamilton case (2005)
added extreme recklessness as an alternative form of mens rea sufficient for
conviction.
!
Sent files that contained B@E, credit card, bomb making.
!
Mens Rea s. 24
Section 24 of the Criminal Code notes that, on interpreting this section, Canadian
courts have emphasized that the mens rea requirements for a criminal attempt may
only be fulfilled by an actual intention to commit a crime.
!
Actus Reus s. 24 (2)
With respect to actus reus, pursuant to section 24(2), the trial judge must decide
whether or not the actions of the accused are sufficiently proximate to the
completed offence.
!
If the actions of the accused are considered to be too "remote," then there may be
no conviction.
!
S 24 (1) Attempts
States that the accused person may be convicted of an attempt ''whether or not it
was possible under the circumstances to commit the offence.”
!
Cline (1956)
!
Scott (1964) –attempting the impossible
!
Violence against Women
Criminal Offences that were challenged
Communicate for the Purpose of Prostitution s 213 C.C.
!
Procuring s 212 C.C.
!
Live on the avails of prostitution
!
Exercise Control
!
Keep Common Bawdy House s 210 C.C.
!
The Criminal code controlled prostitution in three ways. It is an offence to…
communicate for the purpose of engaging in prostitution in a public place
!
To engage in “pimping” that is, procuring a person to be a prostitute –is an offence
!
There are several offences related to keeping a common bawdy house
!
A prostitute means…
A person of either sex who engages in prostitution (sex for money)
!
The offence of Communicate for the purpose of engaging in prostitution (soliciting )
in Sec. 213
!
Communicate FTP of Prostitution
213.
!
(1) Every person who in a public place or in any place open to public view
!
(a) Stops or attempts to stop any motor vehicle,
(b) Impedes the free flow of pedestrian or vehicular traffic or ingress to or egress
from premises adjacent to that place, or
(c) stops or attempts to stop any person or in any manner communicates or attempts
to communicate with any person
For the purpose of engaging in prostitution or of obtaining the sexual services of a
prostitute is guilty of an offence punishable on summary conviction
!
What is the purpose of this law?
!
This section makes it an offence for both the prostitute and the person seeking the
services of a prostitute to communicate in public
!
In other words, either the client or the prostitute can be charged.
!
Old Section -Procuring 212 (1) C.C.
212.(1) Every one who
!
(a) procures, attempts to procure or solicits a person to have illicit sexual
intercourse with another person, whether in or out of Canada,
!
(b) inveigles or entices a person who is not a prostitute to a common bawdy-house
for the purpose of illicit sexual intercourse or prostitution,
!
(c) knowingly conceals a person in a common bawdy-house,
!
(d) procures or attempts to procure a person to become, whether in or out of
Canada, a prostitute,
!
(e) procures or attempts to procure a person to leave the usual place of abode of
that person in Canada, if that place is not a common bawdy-house, with intent that
the person may become an inmate or frequenter of a common bawdy-house,
whether in or out of Canada,
!
Exercise Control
(f) on the arrival of a person in Canada, directs or causes that person to be directed
or takes or causes that person to be taken, to a common bawdy-house,
!
(g) procures a person to enter or leave Canada, for the purpose of prostitution,
!
(h) for the purposes of gain, exercises control, direction or influence over the
movements of a person in such manner as to show that he is aiding, abetting or
compelling that person to
!
Live on the Avails
engage in or carry on prostitution with any person or generally,
(i) applies or administers to a person or causes that person to take any drug,
intoxicating liquor, matter or thing with intent to stupefy or overpower that
person in order thereby to enable any person to have illicit sexual intercourse
with that person, or
!
(j) lives wholly or in part on the avails of prostitution of another person,
!
!
Live on the Avails under 18
(2) Despite paragraph (1)(j), every person who lives wholly or in part on the avails of
prostitution of another person who is under the age of eighteen years is guilty of an
indictable offence and liable to imprisonment for a term not exceeding fourteen
years and to a minimum punishment of imprisonment for a term of two years.
!
Presumption
(3) Evidence that a person lives with or is habitually in the company of a prostitute
or lives in a common bawdy-house is, in the absence of evidence to the contrary,
proof that the person lives on the avails of prostitution, for the purposes of
paragraph (1)(j) and subsections (2) and (2.1).
!
Investigation
How did the Police investigate prostitution?
!
Why was the law challenged / ruled unconstitutional?
Challenged by current and former prostitutes.
!
Three sections of code:
!
Communicate FTP of Prostitution.
!
Live on the Avails of Prostitution.
!
Keep Common Bawdy House.
!
The Defendants
Terri Jean Bedford as of 2010 had 14 years of
!
experience working as a prostitute in various Canadian cities. She worked as a street
prostitute, a massage parlour attendant, an escort, an owner and manager of an
escort agency, and a dominatrix.
!
Not working as a prostitute but wants to return to work as a dominatrix.
!
Concerned that she will face criminal liability and those who help her as well.
!
Amy Lebovitch was born in Montréal. She has worked as a street prostitute, escort
and worked in a fetish house.
!
She feels that it is safer to work inside rather than on the street and would like to
work out of her house without the fear of criminality.
!
She is a spokesperson for Sex Professionals of Canada
!
Valerie Scott. She has worked as a street prostitute, escort and has worked out of
her house. If this challenge is successful, she intends to run an indoor prostitution
business. She feels that working indoors is the best way to prevent violence against
prostitutes.
!
[15] The three applicants applied pursuant to rule 14.05(3)(g.1) of the Rules of Civil
Procedure,
!
Their Claim
They argued that these restrictions on prostitution put the safety and lives of
prostitutes at risk, by preventing them from implementing certain
!
safety measures —such as hiring security guards or “screening” potential clients —
that could protect them from violence. A breach of section 7 of the charter. They
also alleged that s. 213(1)(c) infringes the freedom of expression guarantee under s.
2(b) of the Charter, and that none of the provisions are saved under section 1 of the
Charter.
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SCC on Communicate FTP of Prostitution
purpose of the communicating prohibition in s. 213(1)(c) is not to eliminate street
prostitution for its own sake, but to take prostitution off the streets. This negatively
impacts the safety of street prostitutes.
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Supreme Court says this is a grossly disproportionate response to the possibility of
nuisance caused by street prostitution.
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Supreme Court on Live on the Avails
the purpose of
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the living on the avails of prostitution prohibition in s. 212(1)(j) is to target pimps
and the parasitic, exploitative conduct in which they engage. The law, however,
punishes everyone who lives on the avails of prostitution without distinguishing
between those who exploit prostitutes and those who could increase the safety and
security of prostitutes, for example, legitimate drivers, managers, or bodyguards. It
also includes anyone involved in business with a prostitute, such as accountants or
receptionists.
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SCC on Live on the Avails
In these ways,
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the law includes some conduct that bears no relation to its purpose of preventing the
exploitation of prostitutes. The living on the avails provision is consequently
overbroad.
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Supreme Court on Bawdy houses
The harms to prostitutes identified by the courts below, such as being prevented
from working in safer fixed indoor locations and from resorting to safe houses, are
grossly disproportionate to the deterrence of community disruption. Parliament has
the power to regulate against nuisances, but not at the cost of the health, safety
and lives of prostitutes
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Concluding Remarks
Concluding that each of the challenged provisions violates the Charter does not
mean that Parliament is precluded from imposing limits on where and how
prostitution may be conducted, as long as it does so in a way that does not infringe
the constitutional rights of prostitutes. The regulation of prostitution is a complex
and delicate matter. It will be for Parliament, should it choose to do so, to devise a
new approach, reflecting different elements of the existing regime. Considering all
the interests at stake, the declaration of invalidity should be suspended for one
year.
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New Zealand Model
In 2003, New Zealand passed the Prostitution Reform Act, meant to decriminalize
certain activities related to prostitution. It was also created to:
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Protect sex workers from exploitation, and safeguard their human rights
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Promote the safety, health and welfare of sex workers
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Create a prostitution framework that is conducive to public health
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Prohibit the use in prostitution of persons under 18
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Obtaining Sexual Services for Consideration 286.1 CC
286.1 (1) Everyone who, in any place, obtains for consideration, or communicates
with anyone for the purpose of obtaining for consideration, the sexual services of a
person is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more
than five years and a minimum punishment of,
(i) in the case where the offence is committed in a public place, or in any
place open to public view, that is or is next to a park or the grounds of a school or
religious institution or that is or is next to any other place where persons under the
age of 18 can reasonably be expected to be present,
Obtaining Sexual Services
(A) for a first offence, a fine of" $2,000, and
(B) for each subsequent offence, a fine of" $4,000, or
(ii) in any other case,
(A) for a first offence, a fine of" $1,000, and
(B) for each subsequent offence, a fine of" $2,000; or
(b) an offence punishable on summary conviction and liable to
imprisonment for a term of not more than 18 months and a minimum punishment of,
Obtaining Sexual Services
(i) in the case referred to in subparagraph (a)(i),
(A) for a first offence, a fine of" $1,000, and
(B) for each subsequent offence, a fine of" $2,000, or
(ii) in any other case,
(A) for a first offence, a fine of" $500, and
(B) for each subsequent offence, a fine of" $1,000.
Sexual Services Under 18 years
(2) Everyone who, in any place, obtains for consideration, or communicates with
anyone for the purpose of obtaining for consideration, the sexual services of a
person under the age of 18 years is guilty of an indictable offence and liable to
imprisonment for a term of not more than 10 years and to a minimum punishment of
imprisonment for a term of
(a) for a first offence, six months; and
(b) for each subsequent offence, one year.
Material Benefit
286.2 (1) Everyone who receives a financial or other material benefit, knowing that
it is obtained by or derived directly or indirectly from the commission of an offence
under subsection 286.1(1), is guilty of an indictable offence and liable to
imprisonment for a term of not more than 10 years
(2) Everyone who receives a financial or other material benefit, knowing that it is
obtained by or derived directly or indirectly from the commission of an offence
under subsection 286.1(2), is guilty of an indictable offence and liable to
imprisonment for a term of not more than 14 years and to a minimum punishment of
imprisonment for a term of two years.
Presumption
(3) For the purposes of subsections (1) and (2), evidence that a person lives with or is
habitually in the company of a person who offers or provides sexual services for
consideration is, in the absence of evidence to the contrary, proof that the person
received a financial or other material benefit from those services.
Procuring286.3 CC
Everyone who procures a person to offer or provide sexual services for consideration
or, for the purpose of facilitating an offence under subsection 286.1(1), recruits,
holds, conceals or harbours a person who offers or provides sexual services for
consideration, or exercises control, direction or influence over the movements of
that person, is guilty of an indictable offence and liable to imprisonment for a term
of not more than 14 years.
Procuring Under 18 years
Everyone who procures a person under the age of 18 years to offer or provide sexual
services for consideration or, for the purpose of facilitating an offence under
subsection 286.1(2), recruits, holds, conceals or harbours a person under the age of
18 who offers or provides sexual services for consideration, or exercises control,
direction or influence over the movements of that person, is guilty of an indictable
offence and liable to imprisonment for a term of not more than 14 years and to a
minimum punishment of imprisonment for a term of five years.
Advertising Sexual Services 286.4 CC
Everyone who knowingly advertises an offer to provide sexual services for
consideration is guilty of
-
(a) an indictable offence and liable to imprisonment for a term of not
more than five years; or
(b) an offence punishable on summary conviction and liable to
imprisonment for a term of not more than 18 months.
Exceptions
Advertise for own sexual services.
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Keep Common Bawdy House… s 210 (1) C.C.
210. (1) Every one who keeps a common bawdy-house is guilty of an indictable
offence and liable to imprisonment for a term not exceeding two years.
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What is a common bawdy house???
a place that is kept or occupied, or resorted to by one or more persons, for the
purpose of prostitution or the practice of acts of indecency.
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Keep Common Bawdy House… s 210 (1) C.C.
210. (1) Every one who keeps a common bawdy-house is guilty of an indictable
offence and liable to imprisonment for a term not exceeding two years.
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Convicted of Keeping a Common Bawdy House
When a person is convicted of keeping a common bawdy house, the court serves a
notice to the landlord, property owner or manager saying that the tenant or occupier
has been convicted of this offence.
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The landlord is then expected to take all reasonable steps to evict the person
charged, and if he or she doesn't and the person gets charged again then the
landlord or property owner will also be charged.
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Found ins
(2) Every one who
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(a) is an inmate of a common bawdy-house,
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(b) is found, without lawful excuse, in a common bawdy-house, or
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(c) as owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or
control of any place, knowingly permits the place or any part thereof to be let or
used for the purposes of a common bawdy-house,
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Penalty for Found in
is guilty of an offence punishable on summary conviction.
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What do you think?
Do you believe these offences will withstand a constitutional challenge?
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Indecent Act
173. (1) Everyone who wilfully does an indecent act in a public place in the presence
of one or more persons, or in any place with intent to insult or offend any person,
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(a) is guilty of an indictable offence and is liable to imprisonment for a term of not
more than two years; or
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(b) is guilty of an offence punishable on summary conviction and is liable to
imprisonment for a term of not more than six months.
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Extortion 346(1) CC
Every one commits extortion who, without reasonable justification or excuse and
with intent to obtain anything, by threats, accusations, menaces or violence induces
or attempts to induce any person, whether or not he is the person threatened,
accused or menaced or to whom violence is shown, to do anything or cause anything
to be done.
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Extortion Penalties
Every person who commits extortion is guilty of an indictable offence and liable
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(a) if a restricted firearm or prohibited firearm is used in the commission of the
offence or if any firearm is used in the commission of the offence and the offence is
committed for the benefit of, at the direction of, or in association with, a criminal
organization, to imprisonment for life and to a minimum punishment of
imprisonment for a term of
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(i) in the case of a first offence, five years, and
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(ii) in the case of a second or subsequent offence, seven years;
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(a.1) in any other case where a firearm is used in the commission of the offence, to
imprisonment for life and to a minimum punishment of imprisonment for a term of
four years; and
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(b) in any other case, to imprisonment for life.
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Cause Disturbance 175(1)
Every one who
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(a) not being in a dwelling-house, causes a disturbance in or near a public place,
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(i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene
language,
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(ii) by being drunk, or
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(iii) by impeding or molesting other persons,
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(b) openly exposes or exhibits an indecent exhibition in a public place,
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(c) loiters in a public place and in any way obstructs persons who are in that place,
or
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(d) disturbs the peace and quiet of the occupants
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of a dwelling-house by discharging firearms or by other disorderly conduct in a public
place or who, not being an occupant of a dwelling-house comprised in a particular
building or structure, disturbs the peace and quiet of the occupants of a dwelling-
house comprised in the building or structure by discharging firearms or by other
disorderly conduct in any part of a building or structure to which, at the time of such
conduct, the occupants of two or more dwelling-houses comprised in the building or
structure have access as of right or by invitation, express or implied,
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is guilty of an offence punishable on summary conviction.
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W5 Ch7 Parties & Accessories
#$%&'()*+, -./&%)&*,0+,1230 32425,67
Document Summary
This chapter deals with two major issues: i) ii) the various routes by means of which an individual may become a party to a criminal offence; and the inchoate (in-co-ate) offences of counselling, attempt and conspiracy. Become a party by forming a common intention. Accessory after the fact: 21 (1) cc. Aiding involves the notion of actively providing assistance to that individual. Abetting involves the notion of encouraging the commission of the offence. The crown must prove that the person accused of aiding and/or abetting actively rendered assistance to, and/or encouraged, the principal in the commission of the offence (actus reus). And it must be established that the accused person intended to render such assistance or encouragement (mens rea). Mere passive acquiescence in the commission of an offence or mere presence at the. 16 yr old girl gang raped by 18 bikers.
