Possible for C-36 to be immediatley S.C.C. CHALLENGED once Law.

[tegR]

Well it begs the question. Is a cop posing as a sex worker, immune from entrapping a john under the C-36 regime, if she merely offers either by solicitation or an ad, sexual services for a fee? Or is immunity only granted to a real sex worker?

This raises a common misconception I've been noticing here. Namely, that an "immunity" (from prosecution, for a crime) exists for sex workers. There is no immunity - it is unnecessary, as there is no CRIME for which an immunity would be required.

It is 100% LAWFUL for all any and all persons to sell sex for consideration. Not "illegal... but you are immune from prosecution" - simply not illegal at all in the first place. Same applies for advertising (one's OWN self, for the sale of one's own services) and communication for same (with the singular exception of not near places likely to be frequented by children/minors.)

An Officer, or SP, or You, or Pete Mackay's Mother, who offer to sell sex commit no crime of any kind, and hence have no need for immunity under any context.

That is to say, Officer in an entrapment situation is not concerned with whether she is breaking any laws by offering to sell sex (isn't) but is concerned with whether the INTENT of her offer was to induce a crime. If that was her intent, then her action was unlawful entrapment and a charge laid on the basis of evidence so obtained would be dismissed.

 

[colt]

I agree that it might come down to a liberty argument (if not security argument for other particular provisions of C-36).

However, I didn't quite get your very last sentence. Was there a negative missed there, or did you mean exactly what you wrote?

It was poorly worded, I meant that I don't think the SCC is going to say purchasing sexual services is a fundamental human right or rule that the government cannot make prostitution illegal.

 

[GPIDEAL]

This too is incorrect. There is way too much false legal information going on in these C-36 threads which is kind of sad. There is absolutely no need for the accused to " demonstrable intent beyond a reasonable doubt to induce criminality being the motive for so doing". This inducement can be done intentionally or unintentionally, the police motive doesn't matter at all.

From the SCC:



For a police officer to dress provocatively and proposition random people violates both parts of the test. An example of a legal method for police would be to set up a fake BP ad, wait for the guy to come into a hotel room and request sexual services from an undercover cop who can lie and say they are a sex worker. In such an instance, they merely have just provided an opportunity to commit an offense and the criminal would have just stepped into it. The police cannot do much more than that. If the undercover cop was naked and started kissing the man of her own accord for instance, they would be going ""beyond providing an opportunity and induce the commission of an offence".

Good to know.

I guess, she won't have to do much if one has already communicated the intent to purchase a session.

So if we should speak in innocuous terms "I would like to see you for a session or companionship".

I suppose by the time after you shower at the incall, and remove your towel, she can arrest you?

 

[MPAsquared]

Highly unlikely that they would set up an undercover massage parlour, but they could have two gals working in a phony agency. The undercover cops do not have to lift a finger let alone their skirt. All they have to do is get the john to communicate for the purposes of obtaining sexual services. Then the handcuffs come on (there are some female cops and prosecutors that can handcuff me any time *wink*)

They may not stop after one client if nobody knows about the sting. (I'm talking purely hypothetical here; not scare mongering).

My 1 time comment was in reference to inside an agency, sc, or mp.

What you are describing is john stings American-style via street work or backpages type ads. That's a risky market to shop in post-c36.

Well it begs the question. Is a cop posing as a sex worker, immune from entrapping a john under the C-36 regime, if she merely offers either by solicitation or an ad, sexual services for a fee? Or is immunity only granted to a real sex worker?

She isn't breaking a law selling sex. Immunity is irrelevant. The entrapment concerns raised in the senate hearings was regarding a sex worker entraping a customer by threatening to turn him in to authorities & holding ransom. It was not about police entrapment.

This raises a common misconception I've been noticing here. Namely, that an "immunity" (from prosecution, for a crime) exists for sex workers. There is no immunity - it is unnecessary, as there is no CRIME for which an immunity would be required.

It is 100% LAWFUL for all any and all persons to sell sex for consideration. Not "illegal... but you are immune from prosecution" - simply not illegal at all in the first place. Same applies for advertising (one's OWN self, for the sale of one's own services) and communication for same (with the singular exception of not near places likely to be frequented by children/minors.)

An Officer, or SP, or You, or Pete Mackay's Mother, who offer to sell sex commit no crime of any kind, and hence have no need for immunity under any context.

That is to say, Officer in an entrapment situation is not concerned with whether she is breaking any laws by offering to sell sex (isn't) but is concerned with whether the INTENT of her offer was to induce a crime. If that was her intent, then her action was unlawful entrapment and a charge laid on the basis of evidence so obtained would be dismissed.

This! ^

 

[Siocnarf]

For a police officer to dress provocatively and proposition random people violates both parts of the test. An example of a legal method for police would be to set up a fake BP ad, wait for the guy to come into a hotel room and request sexual services from an undercover cop who can lie and say they are a sex worker....

I'm not sure I understand how dressing provocatively is more an inducement than putting an ad? It seems to me that the ad is a much more direct way of getting someone to break the law. Just walking on the street and waiting for a man to accost you seems to me less like entrapment (provided the cop doesn't do proposition the client herself)

Since it is illegal for a newspaper to advertise sexual services, could this complicate the legitimity of such stings? The police would also be inducing the paper to commit a crime in a sense.

 

[tegR]

This too is incorrect. There is way too much false legal information going on in these C-36 threads which is kind of sad. There is absolutely no need for the accused to " demonstrable intent beyond a reasonable doubt to induce criminality being the motive for so doing". This inducement can be done intentionally or unintentionally, the police motive doesn't matter at all.

From the SCC:



For a police officer to dress provocatively and proposition random people violates both parts of the test. An example of a legal method for police would be to set up a fake BP ad, wait for the guy to come into a hotel room and request sexual services from an undercover cop who can lie and say they are a sex worker. In such an instance, they merely have just provided an opportunity to commit an offense and the criminal would have just stepped into it. The police cannot do much more than that. If the undercover cop was naked and started kissing the man of her own accord for instance, they would be going ""beyond providing an opportunity and induce the commission of an offence".

Fascinating. I stand corrected on the burden of proof applicable to entrapment, little more nuanced then I understood it to be.

That said, how does a BP or other police posted false advertisement pass this test? (advertisement of any kind being, by definition, designed to induce purchase.) Do you know of any case law that could be used to reasonably predict the outcome of that argument, for example in the context of a charge for communication laid against a person who answers a bait advertisement?

 

[GPIDEAL]

This raises a common misconception I've been noticing here. Namely, that an "immunity" (from prosecution, for a crime) exists for sex workers. There is no immunity - it is unnecessary, as there is no CRIME for which an immunity would be required.

It is 100% LAWFUL for all any and all persons to sell sex for consideration. Not "illegal... but you are immune from prosecution" - simply not illegal at all in the first place. Same applies for advertising (one's OWN self, for the sale of one's own services) and communication for same (with the singular exception of not near places likely to be frequented by children/minors.)

An Officer, or SP, or You, or Pete Mackay's Mother, who offer to sell sex commit no crime of any kind, and hence have no need for immunity under any context.

That is to say, Officer in an entrapment situation is not concerned with whether she is breaking any laws by offering to sell sex (isn't) but is concerned with whether the INTENT of her offer was to induce a crime. If that was her intent, then her action was unlawful entrapment and a charge laid on the basis of evidence so obtained would be dismissed.

Pardon me. I was mixing things up.

You're right in that there's no crime against selling, therefore, no immunity is necessary.

HOWEVER, there is a crime communicating and receiving a material benefit BUT the sex worker is specifically immune from prosecution therefor, since it involves the sale of her own services. If there was no crime for communicating for the purpose of selling sex or receiving a material benefit (consideration), the immunity provisions wouldn't exist in the first place.

So in the case of a sting, she's immune from communicating (because that's all that is necessary to entrap the unsuspecting john).

However, does it make a difference if that undercover female cop will never sell her body (IOW, immunity is inapplicable because she's not really an SP - no real intent to sell sex)?

 

[Siocnarf]

It is 100% LAWFUL for all any and all persons to sell sex for consideration.

Only if it is your own. Unless the fake escort cop is working completely alone, the other cops are in a sense breaking the law. For example if some other cop posted the ad. If you post an ad that is not for your own services you are committing a crime. I don't know how that works out when the person advertised doesn't really exist.

 

[tegR]

Since it is illegal for a newspaper to advertise sexual services, could this complicate the legitimity of such stings? The police would also be inducing the paper to commit a crime in a sense.

All this would do is create a quasi-immunity for the Paper from charges being laid for publishing advertisement, which could potentially arise from the publication of the Police-posted advertisement. (As the Police posted the advertisement, they induced the paper to commit the offence of publishing, hence any charge arising from same could be defended on the basis of entrapment.

I do not believe it would be relevant to charges against a third party (person answering.)

 

[GPIDEAL]

My 1 time comment was in reference to inside an agency, sc, or mp.

What you are describing is john stings American-style via street work or backpages type ads. That's a risky market to shop in post-c36.





She isn't breaking a law selling sex. Immunity is irrelevant. The entrapment concerns raised in the senate hearings was regarding a sex worker entraping a customer by threatening to turn him in to authorities & holding ransom. It was not about police entrapment.




This! ^

Okay on the selling Emily, and an agency can nab a few johns, but yes, you're right, it would be a short-lived sting, although it wouldn't take long to create another agency.

Now it really seems that these stings, if any, will catch unsuspecting and unsophisticated johns (low-hanging fruit), since we know the agencies.

It isn't the same though with communication because that is still an offence for the SP ("everyone") BUT it is invalidated or nullified by the immunity from prosecution.

 

[GPIDEAL]

Only if it is your own. Unless the fake escort cop is working completely alone, the other cops are in a sense breaking the law. For example if some other cop posted the ad. If you post an ad that is not for your own services you are committing a crime. I don't know how that works out when the person advertised doesn't really exist.

Yes, interesting distinction. Very good.

 

[GPIDEAL]

All this would do is create a quasi-immunity for the Paper from charges being laid for publishing advertisement, which could potentially arise from the publication of the Police-posted advertisement. (As the Police posted the advertisement, they induced the paper to commit the offence of publishing, hence any charge arising from same could be defended on the basis of entrapment.

I do not believe it would be relevant to charges against a third party (person answering.)

Siocnarf raises an interesting point.

Could the buyer get the police to press charges against the newpaper that ran the phony ad for the cops?

 

[Siocnarf]

...I do not believe it would be relevant to charges against a third party (person answering.)

If the advertisement is itself illegal in some way, maybe that could make any evidence deriving from it inadmissible in court. I can't say but that was my hypothesis.

This is tricky because most probably the ad would not be explicitely sexual, so the paper would not be ''knowingly'' advertising sex. Although the ad would still be easily interpreted by anyone as an offer for some sexual service.

 

[tegR]

Only if it is your own. Unless the fake escort cop is working completely alone, the other cops are in a sense breaking the law. For example if some other cop posted the ad. If you post an ad that is not for your own services you are committing a crime. I don't know how that works out when the person advertised doesn't really exist.

If the Police Officer making the post were Charged (lets say by SIU) for the crime of advertising the sexual services of another person they would easily be able to defend themselves in court by demonstrating that they were not in fact actually committing the legitimate act of advertising actual sexual services. There was never any intent or possibility of providing the services, so the advertising was false. No guilty intent present.

The advertisement law is not an "obscenity" type law as far as I can tell. So just posting an Ad is not a crime; posting an ad that actually advertises a legitimate service which you are willing, able and intend to provide is what makes it illegal IMO.

That said all of the above is 100% theoretical guesswork. Pigs will fly over the satanic ice sheet before SIU or fellow LEOs will actually law "advertising prostitution" charges against a police officer conducing a sting op. Such arguments will never see the inside of a real courtroom.

 

[DigitallyYours]

Using BP to lure a client has been done before in Canada:

http://thechronicleherald.ca/novascotia/1136979-man-gets-6-months-in-internet-luring-sting

Police entrapment and the digital age - r v chiang - bc court of appeal
http://www.thecourt.ca/2012/03/13/police-entrapment-and-the-digital-age-r-v-chiang/

 

[tegR]

Pardon me. I was mixing things up.

You're right in that there's no crime against selling, therefore, no immunity is necessary.

HOWEVER, there is a crime communicating and receiving a material benefit BUT the sex worker is specifically immune from prosecution therefor, since it involves the sale of her own services. If there was no crime for communicating for the purpose of selling sex or receiving a material benefit (consideration), the immunity provisions wouldn't exist in the first place.

So in the case of a sting, she's immune from communicating (because that's all that is necessary to entrap the unsuspecting john).

However, does it make a difference if that undercover female cop will never sell her body (IOW, immunity is inapplicable because she's not really an SP - no real intent to sell sex)?

No crime committed by an SP for receiving material benefit. That provision only applies to third parties such as a pimp.
Also, no crime committed by an SP for communicating for the purpose of selling sex, as long as not in vicinity of places frequented by minors.

As far as I know, there is not in fact any actual written "immunity provisions" - the situation is more that the law is written in such a way as to make almost no action by an SP actually unlawful, so its not that they are immune from charges but that no possible charges exist.

 

[Siocnarf]

If the Police Officer making the post were Charged (lets say by SIU) for the crime of advertising the sexual services of another person they would easily be able to defend themselves in court by demonstrating that they were not in fact actually committing the legitimate act of advertising actual sexual services. There was never any intent or possibility of providing the services, so the advertising was false. No guilty intent present.

I'm not so sure. The intent of the law is to deter the promotion of prostitution in general. Ads, even if fake, contribute to the creation of a demand. In the case of a police I suppose a judge would rule as you say, however.

 

[tegR]

Police entrapment and the digital age - r v chiang - bc court of appeal
http://www.thecourt.ca/2012/03/13/police-entrapment-and-the-digital-age-r-v-chiang/

Excellent read. Thank you.

 

[GPIDEAL]

No crime committed by an SP for receiving material benefit. That provision only applies to third parties such as a pimp.
Also, no crime committed by an SP for communicating for the purpose of selling sex, as long as not in vicinity of places frequented by minors.

As far as I know, there is not in fact any actual written "immunity provisions" - the situation is more that the law is written in such a way as to make almost no action by an SP actually unlawful, so its not that they are immune from charges but that no possible charges exist.

I respectfully think you're wrong.

The communication of a sexual service by 'Everyone' as well as the material benefit received by 'everyone' are offences. SPs selling their own sexual services are immune from prosecution for those offences under section 286.5.

Immunity — material benefit and advertising

286.5 (1) No person shall be prosecuted for

(a) an offence under section 286.2 if the benefit is derived from the provision of their own sexual services; or

(b) an offence under section 286.4 in relation to the advertisement of their own sexual services.

Immunity — aiding, abetting, etc.

(2) No person shall be prosecuted for aiding, abetting, conspiring or attempting to commit an offence under any of sections 286.1 to 286.4 or being an accessory after the fact or counselling a person to be a party to such an offence, if the offence relates to the offering or provision of their own sexual services.



The opening words of sections 286.2 and 286.4 concerning applicability to 'everyone', conceivably includes prostitutes (however, they are later immunized by the section 286.5 provision above):

286.2 (1) Everyone who receives a financial or other material benefit, ... is guilty of an indictable offence...

286.4 Everyone who knowingly advertises an offer to provide sexual services for consideration is guilty of ...


In effect (or at the end of the day, like they say), the operation of section 286.5 renders communication (except near kids) and benefiting by an SP for her own sexual services LEGAL.

 

[MPAsquared]

I'm not sure I understand how dressing provocatively is more an inducement than putting an ad? It seems to me that the ad is a much more direct way of getting someone to break the law. Just walking on the street and waiting for a man to accost you seems to me less like entrapment (provided the cop doesn't do proposition the client herself)

Since it is illegal for a newspaper to advertise sexual services, could this complicate the legitimity of such stings? The police would also be inducing the paper to commit a crime in a sense.

Knowingly. Interesting angle. Hadn't thought of that. Excellent insight!

Pardon me. I was mixing things up.

You're right in that there's no crime against selling, therefore, no immunity is necessary.

HOWEVER, there is a crime communicating and receiving a material benefit BUT the sex worker is specifically immune from prosecution therefor, since it involves the sale of her own services. If there was no crime for communicating for the purpose of selling sex or receiving a material benefit (consideration), the immunity provisions wouldn't exist in the first place.

So in the case of a sting, she's immune from communicating (because that's all that is necessary to entrap the unsuspecting john).

However, does it make a difference if that undercover female cop will never sell her body (IOW, immunity is inapplicable because she's not really an SP - no real intent to sell sex)?

No no. Communicating is only chargeable for the sp if it's near a school or playground. And consideration isn't illegal for her. She can sell. Selling implies consideration. Its buying sex for consideration that is illegal.

Only if it is your own. Unless the fake escort cop is working completely alone, the other cops are in a sense breaking the law. For example if some other cop posted the ad. If you post an ad that is not for your own services you are committing a crime. I don't know how that works out when the person advertised doesn't really exist.

Again, fascinating angle. Cops would have to break a few c36 laws just to sting. Hmm!

Okay on the selling Emily, and an agency can nab a few johns, but yes, you're right, it would be a short-lived sting, although it wouldn't take long to create another agency.

Now it really seems that these stings, if any, will catch unsuspecting and unsophisticated johns (low-hanging fruit), since we know the agencies.

It isn't the same though with communication because that is still an offence for the SP ("everyone") BUT it is invalidated or nullified by the immunity from prosecution.

Nope, see above answer re:consideration & selling

No crime committed by an SP for receiving material benefit. That provision only applies to third parties such as a pimp.
Also, no crime committed by an SP for communicating for the purpose of selling sex, as long as not in vicinity of places frequented by minors.

As far as I know, there is not in fact any actual written "immunity provisions" - the situation is more that the law is written in such a way as to make almost no action by an SP actually unlawful, so its not that they are immune from charges but that no possible charges exist.

This! ^. Immunity cannot be written into a law. Its assumed based on the exclusions.