prostitution

Ontario Court Finds Prostitution Laws Unconstitutional

Written on Behalf of Affleck & Barrison LLP

An Ontario court judge in London has recently ruled that parts of Canada’s prostitution laws are unconstitutional.  Justice Thomas McKay ruled that the charges of procuring, receiving a material benefit and advertising sexual services laid against a couple who ran an escort business should be stayed or set aside as they violate the Charter of Rights and Freedoms.

Although the judgement is significant, it does not nullify the law as the decision was made in provincial court and is not binding.  Therefore, the law remains in effect unless an appellate court agrees with Justice McKay’s lower court decision.

WHAT HAPPENED?

Hamad Anwar (“Anwar”) and Tiffany Harvey (“Harvey”) are common law spouses.  They ran an escort business called Fantasy World Escorts from December 2014 to November 2015.  Anwar owned the business and Harvey performed the management duties for the business.  Sexual services were provided in exchange for cash at two apartments in London, Ontario or other prearranged locations in London, Calgary and Edmonton. 

Both Anwar and Harvey were responsible for the company’s advertising, which included a website used to promote sexual services and to recruit new employees.  They also advertised on bus stop locations throughout the City of London.  They promised an average salary of $2,500 to $5,000 a week, paid annual vacation, benefits and help with tuition and book payments for students. 

In October 2015, an undercover police officer booked an encounter at a hotel in London.  The officer met the escort in the hotel room and gave her $220.  He then explained that he became nervous and was having second thoughts.  The escort texted Harvey to ask if she could return the money, but did not receive a response, so she left the hotel. 

The couple were charged with receiving a material benefit from sexual services (section 286.2(1)), procuring (section 286.3(1)) and advertising an offer to provide sexual services for consideration (section 286.4) in contravention of the Criminal Code.

CONSTITUTIONAL CHALLENGE

In 2014, Bill C-36, the Protection of Communities and Exploited Persons Act, received Royal Assent and altered Canada’s prostitution laws.  This bill criminalized the purchase of sex and communication, the actions of third parties who economically benefit from the sale of sex and any advertising of the sale of sexual services.  However, it did grant immunity to those individuals who advertise or sell their own sexual services.

The couple brought an Application before the court to challenge the constitutionality of the Criminal Code provisions that they were charged under.  They argued that these sections violate their Charter rights.

Anwar and Harvey argued before Justice McKay that the law did not provide sex worker protections to other sectors of society, including third-party managers, and did not allow sex workers the ability to form their own associations to protect themselves.  They also argued that the law violated their freedom of expression and the freedom from unreasonable government interference.

In short, the couple maintained that these laws endanger sex workers by forcing them to work alone, without any protection or ability to outline terms or conditions or to screen clients. 

Following eight days of evidence, Justice McKay found that the three provisions of the Criminal Code violated the rights set out in the Charter, and these violations could not be justified. 

McKay ruled that the criminalization of third-parties makes it almost impossible for most sex workers to work together, for health and safety reasons or to share staff.  He wrote that the effect of the current law is, “at a basic level to deprive sex workers of those things that are natural, expected and encouraged in all other sectors of the economy.  As a result, sex workers, who are more likely in need of protection than most workers, are denied the benefits accorded to mainstream labour.

McKay also ruled that the criminalization of procuring has the effect of isolating marginalized or inexperienced sex workers and prevents them from seeking advice and support from more experienced peers.

Although this is a lower level decision, it is an important decision for judges who consider similar cases. Defence lawyer, James Lockyer, stated:

In order for the sections to be considered null and void, it would have to go up to the next level of court to the Ontario Court of Appeal.  And that’s up to the Crown whether or not they appeal it.   That’s in their hands, not ours.  And if the Ontario Court of appeal gives a decision, if there was an appeal, then ultimately one or the other parties could take it on to the Supreme Court of Canada.

We will continue to provide updates on this blog regarding any developments with respect to prostitution law in Canada and specifically with respect to this case if Justice McKay’s decision is appealed.

In the meantime, if you have been charged with a sexual offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  For your convenience, we offer 24-hour phone services.  We are available when you need us most.

Police Warn that Airbnb Rentals are Being Used for Human Trafficking

Written on Behalf of Affleck & Barrison LLP

Airbnb has become an immensely popular avenue used by individuals to list their homes and apartments for others to use when vacationing. Nevertheless, Toronto police have found an increase in pimps using Airbnb rentals in recent years. Human traffickers may choose to use Airbnb rentals instead of motels due to the greater likelihood for anonymity. Detective Sergeant Nunzio Tramontozzi has stated:

There has to be more due diligence on the part of the … people that are renting out their properties. We have a good relationship with Airbnb. We have brought our concerns to them, and they’re working with us to try and rid pimps of using their properties in Toronto.

RECENT CASE OF ALLEGED HUMAN TRAFFICKING

In mid-February, Toronto police arrested two men who are alleged to have forced a 19-year-old woman into the sex trade for more than a month, running most of their business at various Airbnb properties in the Greater Toronto Area. The men are facing 58 charges, including human trafficking charges. Police allege that the men took the woman’s identification and forced her to turn over all the money she earned to them. When the woman got into an argument with the two men and told them she no longer wanted to work as an escort, one of the men pointed a firearm at her face. A shot was fired and the woman was shot in the buttocks area. The men then transported her to several addresses in the GTA. The woman finally escaped and sought medical attention at a hospital in Brampton.

WHAT IS HUMAN TRAFFICKING?

Human trafficking involves the exploitation for profit of a person through force, fraud, or coercion. Victims are mostly women and children who are forced to provide their labour or sexual services. Exploitation often occurs through intimidation, force, psychological manipulation, emotional abuse, lies, addiction, sexual assault, isolation, taking control of their ID and money, and threats of violence to themselves or their families.

Ontario is a major centre for human trafficking in Canada, with approximately two-thirds of reported cases arising in Ontario. Girls as young as 13 are being recruited by pimps into a world of unpaid sex work, often recruited on social media or at public places like shopping malls and playgrounds. The relationship usually begins as a romantic one and then the pimps ask the girls to perform sexual services on clients as a favour and with the promise of financial reward. Over time, the pimps threaten violence, take away their phones and ID and offer the girls hard drugs.

Human trafficking is an offence found in the Criminal Code of Canada (“CC”) and the Immigration and Refugee Protection Act.

The CC includes four indictable offences to address human trafficking, including:

  • Trafficking in persons (section 279.01);
  • Trafficking of a person under the age of eighteen years (section 279.011);
  • Receiving financial or material benefit knowing it results from the commission of an offence under sections 279.01 and 279.011 (section 279.02); and
  • Withholding or destroying documents (section 279.03).

There are many other offences contained in the CC that also apply to human trafficking cases including kidnapping, forcible confinement, uttering threats, extortion, assault, sexual assault, prostitution related offences and criminal organization offences.

The Immigration and Refugee Protection Act contains a provision that prohibits the bringing into Canada of persons by means of abduction, fraud, deception or use of threat of force or coercion. Section 118 of this Act includes this provision with the accused facing a maximum penalty of a fine up to $1 million and/or up to life imprisonment.

If you have been charged with human trafficking or a related charge or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone service for your convenience. We are available when you need us most.

Canada’s Prostitution Laws are Under Review in London, Ontario

Written on Behalf of Affleck & Barrison LLP

A court hearing is underway in London, Ontario regarding the constitutionality of Canada’s prostitution laws.

Hamad Anwar and Tiffany Harvey face more than two dozen sex-related charges each, including profiting from the sex trade, advertising sexual services and forcing someone into the sex trade. In November 2015, the two accused were charged after London police raided the escort agency where they worked, Fantasy World Escorts, following a seven month investigation.

THE PROSECUTION & DEFENCE POSITIONS

The Crown prosecution takes the position that the new prostitution laws protect women by decriminalizing the sale of sex, but penalize the purchase of it and consequently reduce the demand.

The accuseds’ lawyers are arguing that some of the charges against their clients violate sex workers’ constitutional right to security of the person. They take the position that the specific charges of procuring, advertising and materially benefiting from the sexual services of someone else should be struck down.

The defence called academic, Chris Atchison, as their first expert witness. He gave evidence that the new prostitution laws make it less safe for people in the sex trade to do their jobs. Atchison stated in court, “I believe the application of these laws makes things worse for the most vulnerable people on the street but also for others in the sex industry.”

BILL C-36, THE PROTECTION OF COMMUNITIES AND EXPLOITED PERSONS ACT

Bill C-36 was the Conservative government’s response to the prostitution laws that were struck down in December 2013 by the Supreme Court of Canada in the decision of Canada (Attorney General) v. Bedford.

The Supreme Court, in a unanimous decision, held that the laws prohibiting bawdy houses, living off the benefits of prostitution and communicating in public with clients infringed the rights of prostitutes by depriving them of security of the person. The Supreme Court gave the government one year to draft new laws that would not infringe on the constitutional rights of prostitutes.

Prostitution is legal in Canada, however, under Bill C-36 several activities surrounding it are criminalized. Bill C-36 came into force on December 6, 2014, encompassing prostitution and human trafficking-related amendments. The new law criminalizes the advertising and buying of sex, but decriminalizes the sale of sex.

The Bill specifically targets the buyers of sex, with penalties including jail time (up to five years in some cases) and minimum cash fines that increase after a first offence.

Authorities anticipated that Bill C-36 would be challenged in court at some point. Advocates who support the new laws appreciate that it punishes those individuals who buy sex, not those who sell it. On the other hand, opponents of the new law feel that the legislation forces sex workers underground due to fear of arrest and criminalizes advertising sex. The concern is that sex workers and their clients seek out more isolated and dangerous locations. This legislation also decreases the ability for those in the sex trade to screen their clients prior to meeting, which increases the risk of violence.

We will continue to provide updates on this blog regarding any developments of this case as it continues to be heard before the court.

In the meantime, if you have been charged with a sexual offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. For your convenience, we offer 24-hour phone services. We are available when you need us most.

The Current State of Canada’s Prostitution Laws

Written on Behalf of Affleck & Barrison LLP

In December 2013, in the infamous Bedford case, the Supreme Court of Canada struck down some of Canada’s prostitution laws. The court suspended its ruling for 12 months, allowing the federal government time to draft new legislation. Bill C-36: the Protection of Communities and Exploited Persons Act, was born and came into effect late last year.

With the introduction of Bill C-36, the buying, but not the selling of sex was explicitly outlawed for the first time in Canada. The legislation also gave the police the power to prosecute people who advertise sex work and people who exploit or otherwise make money off sex workers.  Sex workers can still advertise their own sexual services, as the bill contains an exemption for sex workers themselves.

The government’s stated goal of the legislation was to reduce the demand for prostitution by “discouraging entry into it, deterring participation in it and ultimately abolishing it to the greatest extent possible”. The intent of the legislation is to make it more difficult for johns and pimps while protecting sex workers. Since the legislation has been enacted, the Toronto Police Service has begun a large-scale crackdown on human trafficking.

The legislation is not without controversy. Amnesty International has long been calling for the decriminalization of sex work involving consenting adults. The human rights group argues that criminalization of any sort makes it more likely that the rights of sex workers will be violated because the practices are pushed underground.

But other groups say that abolishing laws against prostitution lead to more violations of the rights of women and girls, and lead to human trafficking and child rape. Proponents of decriminalization argue that sex workers can be distinguished between women and children who are sold into sexual slavery and that there is a significant difference between coercive and consensual prostitution.

It is believed that Mali Jean, a Quebec man charged in Saskatchewan, was the first person to be charged under the new law on charges dated July 27, 2015.

 For more information and to speak to an experienced criminal defence lawyer, please contact Affleck & Barrison online or at 905-404-1947.

Sources:

http://news.nationalpost.com/news/barely-illegal-new-prostitution-laws-may-drive-sex-work-underground-but-can-it-stop-it

Man charged in Saskatoon under new federal prostitution laws