This booklet is not meant to replace legal advice. If you might be in trouble with the law, YOU NEED A LAWYER!|
SAY NOTHING TO THE POLICE!
If you need help getting a lawyer, or are harassed by police, contact your local legal clinic or prostitutes' group.
When you're busted
You will be arrested, without a warrant, if you are caught breaking a law or if a cop believes that you have just broken a law or are about to do so.
You can be searched only after being arrested, unless cops think you have drugs or weapons. Strip or cavity searches (vagina, ass, mouth) should be done in private by someone of your sex, but you can be searched anywhere, by any cop who thinks you might destroy evidence.
Types of charges
Summary conviction offencesMany prostitution charges like communicating, being a found-in or an inmate of a bawdy-house, or committing an indecent act are summary offences. They are less serious. When you are arrested for a summary offence you should get an appearance notice and be released unless you:
The police do not have the right to photograph or fingerprint you for a summary offence. Summary offences are tried by a judge. If you are found guilty you could get fined up to $2,000 or spend up to six months in jail, or both. Courts rarely come down that hard on prostitution charges alone.
Show cause hearingsIf you're busted and the police believe that you won't show up for court (if you are not a Canadian citizen, or if you have 'failure to appear' on your record) or that you're likely to break the law again (you have a long criminal record), they can hold you for a 'show cause' hearing.
At the show cause hearing, the cops try to convince a Justice of the Peace (JP) that you should not be released without bail and conditions. The JP will set your first court appearance. If you are released, you will have to sign a promise to appear form. It's also possible for you to plead guilty at a show cause hearing. If you decide to plead guilty, you can be sentenced right there, by the JP, and avoid having to go to court again. This is the quickest way to get it over with. But it's also a fast way to get a registered conviction on your criminal record. YOU SHOULD TALK TO A LAWYER FIRST!
Indictable offencesOther prostitution charges, like 'procuring' and 'keeping a common bawdy-house,' are more serious indictable offences. If you are arrested on an indictable offence, the police will take your fingerprints and a mug shot. If the offence is serious enough, or if you have a record of serious offences, the cops will hold you and you will have to apply for bail. At the bail hearing your lawyer will try to convince a judge that there are good reasons (like having a job or having children to care for) why you should be released on bail until your trial. (See Bail (judicial interim release).)
When you are charged with an indictable offence you and your lawyer have more choices about how to have your trial. You can have a preliminary hearing, you could have a trial by judge or by jury, you could have the trial in a higher or lower court. Because you have more choices, you have a better chance at fighting the law. Being found guilty of an indictable offence can get you a higher fine and/or a longer jail term.
Hybrid offencesMore and more laws are becoming hybrid offences, where the crown attorney (the lawyer who works with the police) decides whether the charge will be for an indictable or a summary offence. In many cases the crown will choose to go with a summary charge because it is quicker and easier. The crown is more likely to choose to go with indictable charges when the case is more complicated, if there are several people charged, or if there is a lot of evidence. In big cases, the longer it takes to get to trial, the more time the police and the crown have to look for evidence to build their case against you.
If you don't have a lawyerDuty Counsel
24-Hour Phone: (416) 868-0720
Duty counsel are lawyers paid by the Legal Aid Program to help people who don't have a lawyer. You can talk to them in court or over the phone from the police station. But you have to ask.
If you get to court without a lawyer, you should ask to speak with duty counsel immediately. Then she or he can advise you of your rights and about court procedures and can help you apply for legal aid.
The duty counsel will ask if you want to get your own lawyer. If you do, the judge will often put off your case to give you time to find one. IT'S A GOOD IDEA TO GET YOUR OWN LAWYER. You need a lawyer to represent you if you want to try to win your case or try to get a lighter sentence.
Sometimes, if you want to plead guilty the duty counsel can talk to the judge for you to explain your situation and to try to get you a fair sentence. Duty counsel can help you get through court procedures but they cannot represent you or give you legal advice.
Bail (judicial interim release)To decide how much to set your bail at, the judge looks at the seriousness of the charge and your criminal record. The judge can decide that you be released on your own recognizance (OR ' your own signature with a promise to pay money if you don't appear), or to the bail program; or to someone who will stand as your surety.
In order to stand as your surety someone who knows you well must sign a form saying she or he will pay a certain amount of money if you don't show up for court. The more serious the charge, the higher the amount will be. Your surety will have to prove that they have the money to pay or own property. Sometimes they will be asked for a cash deposit.
ConditionsWhen a judge sets bail, he or she can also set bail conditions. These conditions can include things like: having to report regularly to a bail officer; not talking to certain people (because they are involved in your case); boundaries (areas you must stay out of); and curfews (certain hours you must be at home).
IF YOU ARE CAUGHT BREAKING BAIL CONDITIONS YOU COULD BE ARRESTED AND HELD IN JAIL UNTIL YOUR TRIAL.
The Toronto Bail Program
The bail program can post bail for you if you don't have surety and can't get out on your own recognizance. Within 24 hours of being arrested you should be contacted by a bail worker to see if you need the help of the program. You may not get accepted if you have more than one 'failure to appear' on your record or you may be accepted by the program but still be denied bail by the judge. They can give you conditions (like looking for a job, reporting to a probation officer [PO], living at a certain place) on top of the ones the judge gave you. They can help you hook up with services that you might need (like welfare). They can give you a place to live if you need one. There are bail program offices in six courthouses in the Toronto area and bail programs in other cities in Ontario.
Getting a lawyer
Most prostitution charges are hard to beat, but you should always talk to a lawyer to see what your chances are. Even if a lawyer cannot keep you from being convicted, she or he might be able to get you a lighter sentence.
If you have trouble with a lawyer
Some lawyers do family law, others do business or civil law. People facing sex-work-related charges need lawyers who specialize in criminal law.
If you have problems with a lawyer's ethics (things like conflict of interest, revealing private information, swindling you out of money), you can report her or him to your local law association, which will talk with the lawyer. If that doesn't help, you can call the Law Society of Upper Canada, (416) 947-3310 with a formal complaint.
If you can't afford a lawyer
If you need a lawyer but cannot pay for one, you can call the Ontario Legal Aid Program (Legal Aid). They may give you a certificate which your lawyer uses to get paid in full or in part by Legal Aid. If you don't have a lawyer, Legal Aid can refer you to one.
You always get legal aid if you're under 18. If you're over 18, you are most likely to get legal aid:
They look at things like how much you have in the bank and how much rent you pay. If you've been charged with prostitution-related offences, you can say that you've lost your way of making money. Losing your job is a good reason for getting legal aid.
How to get Legal Aid assistanceCall and they will tell you where to go to apply. When you see them you should take:
You will be asked questions about your legal problem and your financial situation. If you don't tell the truth you could get into more trouble. Legal Aid can decide to pay for all of your legal fees or just part of them. They can also decide not to help you at all. If you get legal aid, the certificate will be mailed to you or your lawyer. If neither of you have it in two weeks, you should phone Legal Aid to find out why.
If you are refused legal aid you can appeal within ten days. Take the letter you get from Legal Aid to a Community Legal Clinic right away! The staff at the clinic may be able to help you, and the advice is free.
How to find a lawyer
You can find a lawyer at a legal clinic. They're open to the public and you can get free help without legal aid. Most cities in Ontario have at least one legal clinic, but many can't help with prostitution charges because they don't deal with criminal law. (They help people with landlord problems, small claims, divorce, and child custody.) Universities with law schools usually run community legal clinics. They hire law students and a staff lawyer but can usually only help with summary (minor) offences like 'communicating.' There are student legal aid services in Toronto, Kingston, Ottawa, London, and Windsor. (See back cover.)
Parkdale Community Legal Services
Monday & Friday
Parkdale Community Legal Services gives free legal help to all first-time offenders living or working in the Parkdale area. If you do not work or live in the Parkdale area they will still give you free advice and refer you to someone who can help.
Community and Legal Aid Services Program (CLASP)
CLASP gives free help for summary offences if you cannot pay for a lawyer; they will ask questions about how much money you make. You will be helped by a student who works under a lawyer. They hold clinics at Osgoode Hall as well as a regular one at the AIDS Committee (399 Church St.); phone (416) 340-2437 for details.
Lawyers' Referral Service
This service will give you the name of a lawyer who will give you a half hour of free legal advice. You can use this service no matter how much money you have or where you live. Call and tell them what you have been charged with and what part of town you live in. If you have legal aid, tell them this too. You will be given the name and phone number of a lawyer who takes legal aid and works near you.
The first half hour that you spend with this lawyer is free. After that, the lawyer will charge you for any time spent doing work for you, unless you have legal aid and don't have to pay. During your free half hour you should find out if the lawyer knows much about prostitution charges. Not all criminal lawyers do.
You can use the Lawyers' Referral Service for other legal problems too, like divorce, child custody and problems with your landlord.
Maggie's knows some lawyers who will accept legal aid and have helped prostitutes before. Maggie's staff are up-to-date about legal procedures and laws around prostitution. For more information contact Maggie's.
Going to court
Where will your court appearance be?
Which court you go to depends on which police division you were arrested in. In the City of Toronto, if you are a woman and are being held for bail they can only take you to College Park (444 Yonge St. at College subway station). Other courthouses in Metro Toronto are Old City Hall (Queen & Bay), Metro West (80 East Mall) and Metro North (1000 Finch West).
What happens at court?
Your appearance notice (the form that you get from the cops) will tell you which courthouse you need to go to and when. Your first time in court is usually to set a date for trial.
The time on the notice doesn't mean that the judge will look at your case then. A number of cases are set for the same time (9 or 10 a.m. in most courts). A court clerk will do a roll call to make sure everyone is there.
If you have not shown up by then, YOU WILL BE CHARGED WITH 'FAILURE TO APPEAR' AND THE JUDGE WILL ISSUE A BENCH WARRANT FOR YOUR ARREST.
If you show up later in the day, the judge might dismiss the charge of 'failure to appear'; often she or he will not.
When your case comes up you will be asked how you wish to plead. If you plead not guilty, a date will be set for your trial. It is usually set within two or three months. If you decide to plead not guilty, it is a good idea to have a lawyer. You will have a better chance of winning, since lawyers know the system.
If you plead guilty, the judge will decide your sentence. The crown attorney (the lawyer who works with the police) may then say what she or he feels your sentence should be. This submission is often based on your record (past convictions and/or if you obeyed bail or parole orders). At this point, your lawyer gives the judge reasons why you should get the lightest possible sentence. For example, having no prior arrests, having children to care for, going to school or having a legal job, all help.
Whether or not to pleadYou can plead guilty at any stage of your court proceedings, such as at a court appearance to set a trial date or show cause hearing. But the judge or JP can refuse to accept your plea. Since it's difficult to beat a prostitution charge, pleading guilty is the fastest way to get it over with. You often get a lighter sentence for saving the court's time. The judge usually sentences you right away. But it will be registered on your record that you admitted guilt. This will be used against you if you are ever charged again.
The crown attorney and the police often offer plea bargains. They offer to drop some charges, or ask for a lighter sentence, if you'll plead guilty. Sometimes they get you to plead guilty because they know they don't have enough evidence to convict you at trial.
BE SURE TO TALK TO A LAWYER BEFORE AGREEING TO A PLEA!
If you plead 'not guilty'Your case will go to trial. The story of your arrest will be told by the crown attorney with evidence given by the police. You and your lawyer will have already decided if you should testify to tell your side. When the judge has heard the case, she or he will decide whether you are guilty or not. If you are found guilty, the judge will usually sentence you right then. Sometimes you will be told to come back another day for sentencing.
How to behave in court
Anyone, even spectators, can be charged with 'contempt of court' if they disrupt the court in any way.
Charges like 'communicating,' being 'a found-in or an inmate of a bawdy-house,' or 'committing an indecent act,' are summary convictions. Because they are less serious, if you are found guilty the most you can get is a fine (up to $2,000), or up to six months in jail, or both. Courts rarely come down that hard on prostitution charges alone.
Other prostitution charges, like procuring and 'keeping a common bawdy-house,' are indictable offences. Because they are more serious, you can get higher fines and longer jail terms.
Lying about who you are, not showing up for court, or being uncooperative with police or the courts increases your chance of a heavier sentence and of the police and the courts being harder on you the next time you are arrested. The fewer convictions registered on your criminal record, the lighter your sentence is likely to be.
Absolute dischargeYou go free! with no registered conviction on your record.
Conditional dischargeYou go free, with no criminal record, but you have conditions that you must follow. A 10 p.m. curfew and staying out of your old work area are the most common. You may also have to report to a probation officer regularly, or get drug treatment or other counselling. The conditions last for as long as the judge orders, usually six to 18 months.
If you violate any of these and are caught, your discharge can be changed to a conviction you will have a registered conviction on your record. With both absolute and conditional discharges, you don't have a registered conviction on your criminal record, but the police keep a record of your arrest on computer and the courts have a record of your conviction.
Suspended sentence with probationYou receive a sentence (fine, jail, or both), but it is suspended so you don't actually serve time or pay a fine. You do have a conviction on your record. You are also on probation and must obey the judge's orders. If you are caught disobeying a probation order breaking curfew, working in your old area, not seeing your probation officer you could end up serving your sentence!
Payment of a fineIf you're sentenced to pay a fine, you will have a conviction registered on your criminal record and the judge may set an amount of jail time that you will have to serve if you don't pay.
If you can't pay the fine because you have no money, you can go back to court and ask to have the fine reduced.
If you only pay part of the fine and can't pay the rest, you could end up in jail for a part of the jail sentence they think is equal to the amount you haven't paid.
JailA jail sentence means you will have a conviction on your criminal record. Jail time for prostitution offences like 'communicating' is usually given only to people with previous convictions or outstanding warrants, or to those who fail to pay fines.
If you're convicted of a less serious charge, you may be ordered to do community service instead of jail time. The Community Service Order Program, (416) 947-1080, can let you do AIDS education for other sex workers with Maggie's.
You could get out of jail very soon on the Temporary Absence Program (TAP) if you are eligible. Temporary absence is a kind of parole where you live in a half-way house and obey certain rules (like curfews and reporting). If you get into any trouble you go back to jail.
If you stay in jail, you can still get up to a third off your time for good behaviour. You can apply for parole any time but a judge can order that you serve at least half of your sentence. After serving half of your sentence or ten years you are automatically eligible for full parole but you must apply. The parole board can deny your request.
AppealsA court decision can be appealed when a mistake has been made in a trial or sentencing hearing, either because the rules were not followed properly or because new information has come up. Either the convicted person's lawyer or the crown attorney can apply to appeal a decision to a higher-level court. The higher court can decide to stick with the first decision, change the decision, or order a new trial. Sentencing decisions (your penalty), as well as 'guilty' or 'not guilty' decisions can be appealed. You cannot appeal a judge's decision just because you don't like it; a lawyer can tell you if you have grounds for an appeal.
What about your kids?Children's Aid Phone: (416) 924-4646
The Child and Family Services Act of Ontario gives children's aid workers the power to take children from their parents if the kids are in need of protection. They look into reports (including any accusation) of neglect or abuse.
If police arrest and hold you and discover that there's no one with your kids (younger than 12 years) they will likely think that this is neglect and will probably tell the Children's Aid.
Someone who wants to hurt a mother who works in the sex trade can go to the Children's Aid with a false report of neglect or abuse. (Many working mothers don't collect child support for fear that an ex-partner will do this for revenge.) Sex-work-related charges often make these situations more likely to happen or harder to deal with.
If Children's Aid gets a reportA case worker (and sometimes a cop) will visit your house. The worker will talk to the family and look at your home to see if there is evidence of drugs, alcohol, or a lot of fighting. They will check to see if the child (children) is dirty, hungry or hurt. Then the worker will submit a report. It will say:
Many 'squares' think that sex work means drugs and violence. If a case worker comes to see you who already knows that you strip or turn dates, she or he may think that you have a habit and that you or your friends are violent. Be polite and co-operate. Case workers can take your child away, so getting them mad is not going to help your case.
Make sure that no one who is living with you is drunk or high and that there's no yelling or fighting while the case worker is there. Be able to show that someone watches the kids when you are at work.
If your child is removed from the home, you can go to court to get her or him back. If you qualify, you can get legal aid for this kind of problem; a woman who can get mother's allowance will likely get legal aid.
Child abuse crimesAny adult who endangers a child or who police or child welfare workers believe has done so can also be charged under the Criminal Code. The following three laws are hybrid offences that could get you up to two years in jail if you are found guilty. You will most likely also lose the kid(s) to Children's Aid.
It is illegal to take part in 'adultery, sexual immorality and habitual drunkenness or any other form of vice' in your home if you live with your own or someone else's child who is under the age of 18. You could be charged with this if you have dates in your home.
For more information about Canadian laws related to prostitution and sex work, look for the other sections of Maggie's legal primer, Trials of the Sex Trade: A survival guide to Canada's legal jungle. Information about age of consent and the law against anal sex can be found in Who's Jail Bait? Legal information about stripping is in The Bare Facts. Other sections include: No Bawdy's Business, and Trick or Trap? Legal terms in bold are defined in Legal Ease. Maggie's encourages people to reproduce and distribute this information; we would like to be credited.
Special thanks to:
|Trials of the Sex Trade|
Created: August 6, 1999
Last modified: October 11, 2008
Commercial Sex Information Service
Box 3075, Vancouver, BC V6B 3X6
Tel: +1 (604) 488-0710