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

[tegR]

... modify their advertisements to be C-36 compliant.

To me its questionable if this is even possible.

The law is not a language of advertising regulation. It is law against commission of an act, regardless of the language technically used. If some investigation or common sense can sell to a jury that the advertiser was in fact advertising for sex then it doesn't matter that the service offered in writing is "1 hour of time and companionship" any more than it would matter if I put up an ad selling methamphetamine as "decorative synthetic chemical crystals."

Granted, there will be a burden of proof requiring investigation and evidence at least to a circumstantial degree but if police seriously wanted to make an advertising charge stick they can do it.

ALL THAT SAID HOWEVER: The only person who can be charged with advertising is a THIRD PARTY advertising the services of someone other than themselves. As long as the SP is posting her own ads for her own services she is not liable to any charges whatsoever regardless of language used. I think a billboard over the Gardiner for $100 Blowjob with phone number and address is technically legal if it is advertisement by and for the posting SP herself (per C36... probably falls afowl of various public decency laws )

Basically whole concept of "compliant" advertising is a moot point for the individual SP. Advertising your own services is not unlawful and no charges can result. (Third party is another thing though.)

 

[tegR]

Like MPAsquared said, your after-the-fact scenarios might be highly unlikely and simply alarmist.

I'm going to post some very useful information about the security of text messages and perhaps emails, including an article which might allay your fears here.

Furthermore, if somebody called me and said, "We are the police. We found your cell # and email in an escorts contact list.", my answer will be, "Is that all officer? I've been acquainted with the lady for years and have kept in touch to meet for a coffee or lunch, and see how she's doing after our government ruined her livelihood with Bill C-36. If there's nothing else gentlemen, I must be on my way. Good day to you officers.".

What about date/timestamped text messages though?

Yes I know, approaching tin-foil-hatter territory lol.

The articles on communications security I look forward to, please do post these. I suppose anonymous burner phone or even alternate-number app pretty much precludes any easy possibility of being charged this way though.

 

[Toronto`s Finest]

No one will be charged? Do you have a crystal ball? Do you know if everyone is educated on this bill as you and others on this board? (I don't think you can make blanket or general statements like that).

The only ones who won't be charged are those who are smart enough to modify their advertisements to be C-36 compliant.

The medias have gotten Legal Consultation & made the appropriate rules for advertising to be compliant with c-36. I believe The review Boards have followed in this direction as well with regards to advertisers

 

[tegR]

Comforting to know professionals have sought professional legal advice.

 

[colt]

You watch too much TV. Lol

Your dreaming if you think what tegR said is not, at the very least, a possibility. And to add to what tegR said, it doesn't matter if the phone logs, appointment books etc. are not enough evidence to secure a conviction - if they are enough to substantiate an arrest than that itself is enough to really screw alot of people over.

 

[GPIDEAL]

To me its questionable if this is even possible.

The law is not a language of advertising regulation. It is law against commission of an act, regardless of the language technically used. If some investigation or common sense can sell to a jury that the advertiser was in fact advertising for sex then it doesn't matter that the service offered in writing is "1 hour of time and companionship" any more than it would matter if I put up an ad selling methamphetamine as "decorative synthetic chemical crystals."

Granted, there will be a burden of proof requiring investigation and evidence at least to a circumstantial degree but if police seriously wanted to make an advertising charge stick they can do it.

ALL THAT SAID HOWEVER: The only person who can be charged with advertising is a THIRD PARTY advertising the services of someone other than themselves. As long as the SP is posting her own ads for her own services she is not liable to any charges whatsoever regardless of language used. I think a billboard over the Gardiner for $100 Blowjob with phone number and address is technically legal if it is advertisement by and for the posting SP herself (per C36... probably falls afowl of various public decency laws )

Basically whole concept of "compliant" advertising is a moot point for the individual SP. Advertising your own services is not unlawful and no charges can result. (Third party is another thing though.)

Before I respond to your compliant advertising comments, please allow me to digress about a subtle issue with respect to the commission of an offence, and immunity for it.

While it is true that only third parties can be prosecuted for an advertising offence under Section 286.4 and that SPs selling their own sexual services are immune from prosecution of that offence, this doesn't mean that prostitutes are not committing that offence.

There's no exception in the statute for prostitutes UNDER THE OFFENCE PROVISIONS for benefiting and advertising (sections 286.4 and 286.2, respectively). Go see for yourself. Tell me where in either of these sections, you see an exemption for prostitutes.

http://www.parl.gc.ca/HousePublications/Publication.aspx?Pub=Bill&Doc=C-36&File=4

There's only a specific immunity provision for advertising and benefiting (as well as aiding & abetting) by escorts who sell their own services. It is a SEPARATE provision. It is not an exception for the offence. If there was an exception to the offence, worded like this "Everyone, except for individuals who sell their own sexual services, who commits an offence ...", then you would technically be correct in what you're saying.

Therefore, prostitutes are committing an offence if they advertise (or materially benefit) BUT FOR WHICH THEY CAN'T BE PROSECUTED according to the specific immunity provision that follows.

If I were an escort, I would be concerned about this distinction, since I'd be worried if the police can harass me with a charge that might stay on my record, regardless of the certainty of no conviction.

=============================================================================================================================

Now getting back to your point about whether an advertisement is compliant, that remains a question of fact I suppose, but it wouldn't hurt to apply some due diligence and prevent being low-hanging fruit to the LE. Why make it easy for them?

You say it would be moot, but that's with respect to any conviction.

However, IF the possibility exists for being arrested and charged with the offence, albeit immunity, I'd rather not advertise a BJ and risk getting a charge on my record that doesn't stick. Unless there's a legal precedent that would strike out such charges and purge the record due to immunity or some other reason (i.e., selling is still legal so per MPA2's understanding of the government's hearings on this bill, immunity may be implied, etc. etc.), I would not be specific about services if they are sexual to avoid any LE heat.

The other reason why an SP may want to modify her advertising, is to protect YOU, the client. Since johns have legal exposure merely for communicating for the purposes of obtaining sexual services for consideration, why would a smart SP increase that risk for her customers (Jessica aptly pointed this out to me. She and MFF have taken measures to reduce that risk for their customers.) You can't argue that you were paying for companionship if she expressly advertises a sexual menu.

 

[GPIDEAL]

The medias have gotten Legal Consultation & made the appropriate rules for advertising to be compliant with c-36. I believe The review Boards have followed in this direction as well with regards to advertisers

This might not prevent indies who don't update their websites (again, they can't be prosecuted, but if the custodian of the server is in Canada, LE can seize or have the offending web page deleted).

 

[GPIDEAL]

Your dreaming if you think what tegR said is not, at the very least, a possibility. And to add to what tegR said, it doesn't matter if the phone logs, appointment books etc. are not enough evidence to secure a conviction - if they are enough to substantiate an arrest than that itself is enough to really screw alot of people over.

Unlikely but possible, of course. And correct with respect to an arrest. Having an arrest record could prevent me from travelling to the USA.

 

[GPIDEAL]

What about date/timestamped text messages though?

Yes I know, approaching tin-foil-hatter territory lol.

The articles on communications security I look forward to, please do post these. I suppose anonymous burner phone or even alternate-number app pretty much precludes any easy possibility of being charged this way though.

I will return to this post with the information. A Terbite PM'd me months ago and it is very important to know and understand. (I kept those posts and he gave me permission to post his comments, as well as post an article on the subject).

 

[tegR]

Before I respond to your compliant advertising comments, please allow me to digress about a subtle issue with respect to the commission of an offence, and immunity for it.

While it is true that only third parties can be prosecuted for an advertising offence under Section 286.4 and that SPs selling their own sexual services are immune from prosecution of that offence, this doesn't mean that prostitutes are not committing that offence.

There's no exception in the statute for prostitutes UNDER THE OFFENCE PROVISIONS for communicating and advertising (sections 286.4 and 286.2, respectively). Go see for yourself. Tell me where in either of these sections, you see an exemption for prostitutes.

http://www.parl.gc.ca/HousePublications/Publication.aspx?Pub=Bill&Doc=C-36&File=4

There's only a specific immunity provision for advertising and communication (as well as aiding & abetting) by escorts who sell their own services. It is a SEPARATE provision. It is not an exception for the offence. If there was an exception to the offence, worded like this "Everyone, except for individuals who sell their own sexual services, who commits an offence ...", then you would technically be correct in what you're saying.

Therefore, prostitutes are committing an offence if they advertise (or materially benefit) BUT FOR WHICH THEY CAN'T BE PROSECUTED according to the specific immunity provision that follows.

If I were an escort, I would be concerned about this distinction, since I'd be worried if the police can harass me with a charge that might stay on my record, regardless of the certainty of no conviction.

=============================================================================================================================

Now getting back to your point about whether an advertisement is compliant, that remains a question of fact I suppose, but it wouldn't hurt to apply some due diligence and prevent being low-hanging fruit to the LE. Why make it easy for them?

You say it would be moot, but that's with respect to any conviction.

However, IF the possibility exists for being arrested and charged with the offence, albeit immunity, I'd rather not advertise a BJ and risk getting a charge on my record that doesn't stick. Unless there's a legal precedent that would strike out such charges and purge the record due to immunity or some other reason (i.e., selling is still legal so per MPA2's understanding of the government's hearings on this bill, immunity may be implied, etc. etc.), I would not be specific about services if they are sexual to avoid any LE heat.

The other reason why an SP may want to modify her advertising, is to protect YOU, the client. Since johns have legal exposure merely for communicating for the purposes of obtaining sexual services for consideration, why would a smart SP increase that risk for her customers (Jessica aptly pointed this out to me. She and MFF have taken measures to reduce that risk for their customers.) You can't argue that you were paying for companionship if she expressly advertises a sexual menu.

Yes, you're right in that charges might still be laid. I can understand taking defensive compliance measures in advertising to prevent such nuisance/harassment charges being laid, makes sense. It will actually be interesting to see how one of these cases plays out in court. Technically it is been stated that the government has no power to legislate immunity, rendering the immunity provisions actually worthless. But would the Crown actually press charges against an SP despite the obvious intent of the immunity clauses?

I can see and admit my bias towards measures to defend against CONVICTIONS as you noted. I'll just say that from my perspective only the actual criminal record has meaningful implications. Good of you to highlight the secondary risks that do arise simply from an arrest regardless of conviction, there are many for which these would certainly be quite ruinous.

 

[tegR]

I will return to this post with the information. A Terbite PM'd me months ago and it is very important to know and understand. (I kept those posts and he gave me permission to post his comments, as well as post an article on the subject).

Excellent. More info on the legal status of communications security/privacy in a Canadian context would be very welcome, it is hard to find Canada specific info under the mountain of USA discussions.

 

[GPIDEAL]

Yes, you're right in that charges might still be laid. I can understand taking defensive compliance measures in advertising to prevent such nuisance/harassment charges being laid, makes sense. It will actually be interesting to see how one of these cases plays out in court. Technically it is been stated that the government has no power to legislate immunity, rendering the immunity provisions actually worthless. But would the Crown actually press charges against an SP despite the obvious intent of the immunity clauses?

I can see and admit my bias towards measures to defend against CONVICTIONS as you noted. I'll just say that from my perspective only the actual criminal record has meaningful implications. Good of you to highlight the secondary risks that do arise simply from an arrest regardless of conviction, there are many for which these would certainly be quite ruinous.

Thanks. I'm not a lawyer but have studied law and read legalese daily in my work for contract risk management. Plus I've learned a thing or two from the real legal eagles on Terb.

It would be nice to know if the cops can still press charges just to harass or intimidate SPs to talk, although it would be against the spirit of C-36 which regards sex workers as victims who need protection from exploitation. If the cops charge escorts let alone subpoena them to testify against johns, that in a way is exploitative, when all the sex worker wants is to make a living. A charge on anyone's record can have ramifications for out-of-country travel or employment prospects.

As to whether the legislated immunity is valid or not, it remains to be seen, but more importantly, what will be the result if those provisions have no effect?

 

[bubble pop]

There's only a specific immunity provision for advertising and benefiting (as well as aiding & abetting) by escorts who sell their own services. It is a SEPARATE provision. It is not an exception for the offence. If there was an exception to the offence, worded like this "Everyone, except for individuals who sell their own sexual services, who commits an offence ...", then you would technically be correct in what you're saying.

Therefore, prostitutes are committing an offence if they advertise (or materially benefit) BUT FOR WHICH THEY CAN'T BE PROSECUTED according to the specific immunity provision that follows.

If I were an escort, I would be concerned about this distinction, since I'd be worried if the police can harass me with a charge that might stay on my record, regardless of the certainty of no conviction.

My conspiracy theory is that C36 was drafted in this way to facilitate civil forfeiture. There is always some pretext to arrest streetwalkers, but now there is an avenue to decimate the $300/hr indies too.

 

[tegR]

Thanks. I'm not a lawyer but have studied law and read legalese daily in my work for contract risk management. Plus I've learned a thing or two from the real legal eagles on Terb.

It would be nice to know if the cops can still press charges just to harass or intimidate SPs to talk, although it would be against the spirit of C-36 which regards sex workers as victims who need protection from exploitation. If the cops charge escorts let alone subpoena them to testify against johns, that in a way is exploitative, when all the sex worker wants is to make a living. A charge on anyone's record can have ramifications for out-of-country travel or employment prospects.

As to whether the legislated immunity is valid or not, it remains to be seen, but more importantly, what will be the result if those provisions have no effect?

I would theorize that the failure of immunity provisions is a Charter challenge weak-point, since the Bedford decision struck down charging SPs for communication for the purposes of legally selling sex. Selling has not been made illegal, so Bedford applies. I think a charge brought against an SP for this that the crown actually pressed could be defended using Bedford and the communication law would probably be again struck down.

I am unsure if the judiciary has any more power to create immunity than the government. If not, then a read-down/modification would not be possible, and the entire communication charge would be stricken.

To take the theory to its full conclusion, the government would be faced with two choices then. Criminalize sale (unlikely) or let the communication provision drop. I believe if the purchasing and procuring provisions were untouched then even the Cons would let it lie at that point.

Crowns will probably be instructed to not prosecute charges of this nature to avoid this outcome.

 

[bobcat40]

Thanks. I'm not a lawyer but have studied law and read legalese daily in my work for contract risk management. Plus I've learned a thing or two from the real legal eagles on Terb.

It would be nice to know if the cops can still press charges just to harass or intimidate SPs to talk, although it would be against the spirit of C-36 which regards sex workers as victims who need protection from exploitation. If the cops charge escorts let alone subpoena them to testify against johns, that in a way is exploitative, when all the sex worker wants is to make a living. A charge on anyone's record can have ramifications for out-of-country travel or employment prospects.

As to whether the legislated immunity is valid or not, it remains to be seen, but more importantly, what will be the result if those provisions have no effect?

To be honest, many of the provisions of bill C-36 are in place so that cops can in fact arrest sex workers if they need to. I do believe the ultimate objective of bill C-36 is the same as the old laws - to remove the nuisance of prostitution in communities.

1. For "outdoor sex work": Police can arrest Prostitutes for communicating for the purposes of prostitution in a public place. I realize they have refined the definition of such spaces to places "near" schools, daycare's, and playgrounds. How many public places do you know that are not remotely near one of those places? This provision can catch a lot of sex workers wishing to work in safer, well lit areas
2. For "indoor sex work": Police can shut down the operation as a commercial enterprise

So yes, the police could use those provisions to get sex workers to talk.

 

[Titalian]

To be honest, many of the provisions of bill C-36 are in place so that cops can in fact arrest sex workers if they need to. I do believe the ultimate objective of bill C-36 is the same as the old laws - to remove the nuisance of prostitution in communities.

1. For "outdoor sex work": Police can arrest Prostitutes for communicating for the purposes of prostitution in a public place. I realize they have refined the definition of such spaces to places "near" schools, daycare's, and playgrounds. How many public places do you know that are not remotely near one of those places? This provision can catch a lot of sex workers wishing to work in safer, well lit areas
2. For "indoor sex work": Police can shut down the operation as a commercial enterprise

So yes, the police could use those provisions to get sex workers to talk.

This would include agencies and indys right ??

And when you say, get sex workers to talk, I gather you mean, giving up their Johns ?

 

[bobcat40]

This would include agencies and indys right ??

And when you say, get sex workers to talk, I gather you mean, giving up their Johns ?

Well yes, legally agencies/massage parlours are in a grey zone. They can claim they are selling a legitimate service (companionship/massage) and anything else that happens isn't explicitly paid for but an act between two consenting adults with affinity for each other. In court, this is kind of a 50/50 argument which has succeeded before at a low level court. Ultimately, I don't think the crown is going to go crazy on the commercial enterprise provisions as they are very vulnerable to a challenge. The Bedford decision put very strongly that individuals that contribute to sex worker safety cannot be criminalized as it would be sex workers in danger. Agencies and Massage Parlours that allow sex workers the safety of an indoor environment and may hire security/surveillance shouldn't be criminalized where there is a mutual benefit between parties. Furthermore, many sex workers may not have the resources to start their own incall operation - banning agencies and massage parlours would essentially force these people onto the streets.

 

[TeasePlease]

Well yes, legally agencies/massage parlours are in a grey zone. They can claim they are selling a legitimate service (companionship/massage) and anything else that happens isn't explicitly paid for but an act between two consenting adults with affinity for each other. In court, this is kind of a 50/50 argument which has succeeded before at a low level court. Ultimately, I don't think the crown is going to go crazy on the commercial enterprise provisions as they are very vulnerable to a challenge. The Bedford decision put very strongly that individuals that contribute to sex worker safety cannot be criminalized as it would be sex workers in danger. Agencies and Massage Parlours that allow sex workers the safety of an indoor environment and may hire security/surveillance shouldn't be criminalized where there is a mutual benefit between parties. Furthermore, many sex workers may not have the resources to start their own incall operation - banning agencies and massage parlours would essentially force these people onto the streets.

That's a policy decision that essentially allowed the proliferation of rub n tugs in the first place. We (as a community) wanted to get sex off the streets).

As for MPs and clubs selling legitimate services, that's precisely it. The services for which they are authorized are kosher. But when was the last time you went to a MP and only paid $40? That just gets you in the door (literally!). Then we pay for the fun stuff. Neither the spa nor the MPA runs afoul of the law up to this point. The risk lies entirely with the client, who is purchasing a hand job, blow job, FS, etc.

 

[GPIDEAL]

My conspiracy theory is that C36 was drafted in this way to facilitate civil forfeiture. There is always some pretext to arrest streetwalkers, but now there is an avenue to decimate the $300/hr indies too.

There is no offence for selling sexual services in the Criminal Code under Bill C-36 if by a sex worker herself.

They are immune for those other offences (material benefits, advertising, aiding & abetting/entrapping).

So how can the above facilitate civil forfeiture?

 

[MPAsquared]

Your dreaming if you think what tegR said is not, at the very least, a possibility. And to add to what tegR said, it doesn't matter if the phone logs, appointment books etc. are not enough evidence to secure a conviction - if they are enough to substantiate an arrest than that itself is enough to really screw alot of people over.

I didn't say impossible. But highly unlikely without a Hollywood budget.

Before I respond to your compliant advertising comments, please allow me to digress about a subtle issue with respect to the commission of an offence, and immunity for it.

While it is true that only third parties can be prosecuted for an advertising offence under Section 286.4 and that SPs selling their own sexual services are immune from prosecution of that offence, this doesn't mean that prostitutes are not committing that offence.

There's no exception in the statute for prostitutes UNDER THE OFFENCE PROVISIONS for benefiting and advertising (sections 286.4 and 286.2, respectively). Go see for yourself. Tell me where in either of these sections, you see an exemption for prostitutes.

http://www.parl.gc.ca/HousePublications/Publication.aspx?Pub=Bill&Doc=C-36&File=4

There's only a specific immunity provision for advertising and benefiting (as well as aiding & abetting) by escorts who sell their own services. It is a SEPARATE provision. It is not an exception for the offence. If there was an exception to the offence, worded like this "Everyone, except for individuals who sell their own sexual services, who commits an offence ...", then you would technically be correct in what you're saying.

Therefore, prostitutes are committing an offence if they advertise (or materially benefit) BUT FOR WHICH THEY CAN'T BE PROSECUTED according to the specific immunity provision that follows.

If I were an escort, I would be concerned about this distinction, since I'd be worried if the police can harass me with a charge that might stay on my record, regardless of the certainty of no conviction.

=============================================================================================================================

Now getting back to your point about whether an advertisement is compliant, that remains a question of fact I suppose, but it wouldn't hurt to apply some due diligence and prevent being low-hanging fruit to the LE. Why make it easy for them?

You say it would be moot, but that's with respect to any conviction.

However, IF the possibility exists for being arrested and charged with the offence, albeit immunity, I'd rather not advertise a BJ and risk getting a charge on my record that doesn't stick. Unless there's a legal precedent that would strike out such charges and purge the record due to immunity or some other reason (i.e., selling is still legal so per MPA2's understanding of the government's hearings on this bill, immunity may be implied, etc. etc.), I would not be specific about services if they are sexual to avoid any LE heat.

The other reason why an SP may want to modify her advertising, is to protect YOU, the client. Since johns have legal exposure merely for communicating for the purposes of obtaining sexual services for consideration, why would a smart SP increase that risk for her customers (Jessica aptly pointed this out to me. She and MFF have taken measures to reduce that risk for their customers.) You can't argue that you were paying for companionship if she expressly advertises a sexual menu.

Yes. Hence even pro-c36-ers arguing in the hearings about all the clauses that criminalize sex workers. That goes directly against the Bedford decision.

As I said in the other thread, sex workers have as much to loose.

Thanks. I'm not a lawyer but have studied law and read legalese daily in my work for contract risk management. Plus I've learned a thing or two from the real legal eagles on Terb.

It would be nice to know if the cops can still press charges just to harass or intimidate SPs to talk, although it would be against the spirit of C-36 which regards sex workers as victims who need protection from exploitation. If the cops charge escorts let alone subpoena them to testify against johns, that in a way is exploitative, when all the sex worker wants is to make a living. A charge on anyone's record can have ramifications for out-of-country travel or employment prospects.

As to whether the legislated immunity is valid or not, it remains to be seen, but more importantly, what will be the result if those provisions have no effect?

Yes.

This would include agencies and indys right ??

And when you say, get sex workers to talk, I gather you mean, giving up their Johns ?

Perhaps. But more likely to further investigation into pimps, trafficking, & underage sex work. Ie: to get a girl under duress to talk.

That's a policy decision that essentially allowed the proliferation of rub n tugs in the first place. We (as a community) wanted to get sex off the streets).

As for MPs and clubs selling legitimate services, that's precisely it. The services for which they are authorized are kosher. But when was the last time you went to a MP and only paid $40? That just gets you in the door (literally!). Then we pay for the fun stuff. Neither the spa nor the MPA runs afoul of the law up to this point. The risk lies entirely with the client, who is purchasing a hand job, blow job, FS, etc.

Not all spas operate that way.