Trick or Trap? Dickering in public is against the law!

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 are under arrest: co-operate, be polite, DON'T fight or swear, andSAY NOTHING but your name and address until you have spoken to a lawyer!

If you need help getting a lawyer, or are harassed by police, contact your local legal clinic or prostitutes' group.

Communication crimes

In the mid 1980s, police forces and chiefs along with residents' groups pressured the government for a law to replace the old soliciting law. The cops complained that they could no longer control street prostitutes and their clients after the supreme court ruled that a prostitute had to be 'pressing and persistent' with the same person in order to break the law.

'Communicating for the purpose of prostitution in a public place' became illegal in December, 1985. The law (section 213 of the Criminal Code of Canada) forbids anyone who is in a public place, a place open to the public, or a place in public view from 'communicating, or attempting to communicate, to any person in any manner, for the purpose of prostitution.'

Enforcing the law

The police say that they only arrest prostitutes who name the services that they offer and their price to under-cover cops. A cop cannot charge you with communicating just because you've been charged before. He can only lay a charge if you and he have made a deal to trade sex for money. There is nothing to stop an undercover cop from naming a sex act or price first and then busting a pro who goes for the date. Chances are the judge will believe the cop if he denies in court that he communicated first.

There have been some cases where the judge had some doubt about whether the pro or the cop had done the communicating and the charges were dropped. Some pros have even won 'communicating' cases themselves without a lawyer. Anytime the cop communicates first, you have a chance of beating the charge, especially if you didn't actually agree to a date.

Is it entrapment if
police go out of their
way to charge you?

It is only entrapment if a cop behaves in a way that forces you to do something that you would never have done otherwise. The police are allowed to give you the chance to break the law if they suspect that you are already involved in that crime. With prostitution, this might be because they know that you have an ad in the adult classifieds, or that you are standing in an area known to be a stroll, or that you have been charged with prostitution-related offences before.

A cop does not have to tell the truth to a prostitute if she or he asks him if he is a cop. He can show you ID, show you his dick, touch you sexually, or even take full service and then arrest you. He can lie in order to get you to break this law and it will not be held against him in court.

Known prostitutes are sometimes threatened by police with communicating charges, whether they are working or not, when cops want information from them. If this happens you should call the Anonymous Police Complaints Project (Parkdale Community Legal Services) at (416) 531-2411 or Maggie's.

You can't be charged
with communicating if:
  • the price is not mentioned until you get to the hotel room with the cop. A hotel room is not a public place.
  • the customer agrees to the deal without you listing your services or prices yourself.
  • you set up the date by phone when, for example, a regular customer you've met on the street calls you. (The courts don't consider a cellular phone private since it uses public airwaves. It's not clear if the courts would consider a pay phone private since it's open to public view.)

How busts go down

Most cops tell you that you are arrested after the deal's been made and you've gotten into their car and they have driven a short way -- followed by a backup car. Usually the cop will drive out of the area, so as not to alert other pros, to a place where back-up is close by. Sometimes an under-cover cop doesn't identify himself and back-up cops arrest the pro after he drives away. Some cops are on foot. As soon as they can get you to agree to a date, they use a code to tell back-up cops to arrest you before you can get away. Cops have also used cabs to make 'communicating' busts. These are also good charges to fight because it is obvious how far the cops had to go to trick the pro. Also some judges don't like to see that kind of waste of money.

In a sweep, cops often take you to a command post nearby where police staff are waiting to process you. In the past during big sweeps, cops have not even bothered to try to entrap prostitutes before arresting them.

After you get busted

'Communicating' is a summary conviction (minor) offence so you can get up to a $2,000 fine and/or six months in jail. Because it is a summary offence, you should get an appearance notice and be released unless you:
  • have no ID
  • have outstanding charges,
  • have breached bail or other court orders.

Cops sometimes take polaroids or videos of pros on the street 'for identification.' You don't have to go to the station for a mug shot or fingerprints for a summary offence. Police often use prostitution arrests as an excuse to search for drugs. Undercover cops have been known to ask pros to supply drugs.

What are your
chances in court?

Many defence lawyers believe that it is very difficult to win a case where someone is charged with 'communicating.' For this reason most lawyers will advise you to plead guilty.

Most lawyers aren't familiar with the 'communicating' law. A lawyer may give bad advice, or cut a bad deal, because he or she doesn't realize that there are ways to fight many of these charges. A lawyer who knows this area of the law can help you decide if you have a good case to fight. This is especially important if you have prior convictions and might be looking at jail time.

Charges are also rarely thrown out, but it sometimes happens when cops forget to show up in court because so many people are pleading guilty to so many 'communicating' charges.

Legal aid

Legal aid is only available to people who face possible jail sentences. Someone charged with 'communicating' will only qualify for a legal aid certificate if they have several charges or prior convictions, or when they are being held in jail.

Some community legal clinics can take on prostitution-related charges for free. In Toronto, Parkdale Community Legal Services has the most experience in this area.

What's a good defence?

If you are approached by an undercover cop, and he suggests the price and the act but you say that you only charge for your time -- not for a specific service -- you can still be busted.

This defence probably wouldn't work, especially if you were picked up on a known stroll. The judge would likely believe that charging a price for your time when approached on the stroll was still 'communicating for the purpose of prostitution.' The court could decide to admit a taped conversation between you and an undercover cop as evidence that it was the officer who communicated and not you. But it could make the cops mad if they find a tape-recorder on you. You are only allowed to tape conversations that you are a part of. Police, on the other hand, can apply for a warrant that allows them to record any of your conversations anyplace.

Other street busts

Indecent act in a public place
Section 173

You can be charged for committing an indecent act -- exposing your genitals or, if you're a woman, your breasts -- in any place where you can be seen by the public.

'Indecent act in a public place' is a summary offence that can get you up to a $2,000 fine and/or six months in jail; the maximum penalty is rarely given.

What is a 'public place'?

A public place is any place in which someone might see you. You are in public if you are in a private place but can be seen through an open door or an uncovered window. You are even considered to be in public when you can be seen on private property that you own. A car is a public place. But an April 1994 decision by the Ontario Court of Appeal found a pro not guilty of committing an 'indecent act in a public place' for having sex with a client in a secluded, parked car. The judge said that it was obvious from what police said in court that the pro and the date really tried to make sure that they were in private. The judge ruled that they were in private even though the police had spied on them.

Counselling to commit a criminal offence
Section 22

'Counselling to commit a criminal offence' means that you are a partner in any crime you give advice about. Because you are a partner in the crime, the penalty for 'counselling' is the same as if it was you who actually broke the law. If you ask an undercover cop posing as a customer to touch his dick or to touch you in order to prove that he is not a cop, but no service or price is mentioned, you can still be busted for 'counselling to commit an indecent act.' ('Indecent act' can get you a fine of up to $2,000 and/or up to six months in jail.) These cases are often viewed by judges as petty and are good charges to fight.

Bawdy-House
Section 210

Bawdy-house laws are used against people who work in brothels or for escort agencies or who see clients in their homes. (See: No Bawdy's Business.) If you bring an undercover cop from the street back to your place, he can't charge you with bawdy-house offences right away. A place has to be used regularly to be a bawdy-house so at least one other cop would have to come undercover on a different day. If you didn't discuss having sex until you were at your place you could fight a 'communicating' charge.

Procuring
Section 212

'Procuring' makes it illegal to help anyone buy or sell sexual services. Police usually need the cooperation of a complainant in order to press procuring charges.

Procuring is an indictable offence; you can get sentences from five years (for trying to hire someone under the age of 18 years), to fourteen years (for 'living on the avails' (pimping) of someone under 18). Referring clients to your friends or other pros; giving advice on how to work, especially to someone new or to someone from another country, or on how to work in another country; or taking fees for referring calls or for protection ('living on the avails') can all get you up to ten years in jail.

Carrying weapons
Sections 89 & 90

'Carrying a concealed weapon' includes carrying things like mace, pepper spray, stun guns or kitchen knives for protection. If you carry a weapon in public which isn't hidden -- even wearing a studded wrist band -- you can be charged with 'possession of a prohibited weapon' (section 90). Both are hybrid offences so the crown can decide that the charge is indictable (up to five and ten years respectively). (For more about weapons see Holding Court.)

Using other names
Obstructing justice (Section 139)
Obstructing a peace officer (Section 129)

It is legal to use any name unless it's for fraud. But you can be charged with 'willfully obstructing a peace officer' or with 'obstructing justice' for using anything but your legal name in order to avoid arrest or conviction. Both offences are hybrid and can get you up to two years in jail. A charge under another name can catch up to you and get you into a lot of trouble and being charged under the same name more than once is even riskier. Some people have gotten off of charges under false names but they had to lie to their lawyers about who they were in order to do this. A lawyer is not allowed to take your case if she or he knows that you aren't telling the truth. But if a lawyer doesn't know that you are using a false name and it comes out in court she or he might still be able to help. You can also be charged with 'obstruct' for trying to foil an arrest in any way, like identifying undercover cops or refusing to give your name when you are arrested.

For more information about Canadian laws related to prostitution and sex work, look for the other sections of Trials of the Sex Trade: A survival guide to Canada's legal jungle. Information about court, drugs, family law and pressing charges can be found in Holding Court. Information about age of consent and the law against anal sex can be found in Who's jail Bait? Other sections include: No Bawdy's Business, and The Bare Facts. Legal terms set out in bold are defined in Legal Ease. Freedom Through Information encourages people to reproduce and distribute this information; we would like to be credited.

Special thanks to:
Chris Bearchell (copy), Atlas Studios (paper production), Andrew Sorfleet (design), Sylvia Davis (original research), Pauline Marianchuk, Kara Gillies, Julien Francisco, Matthew McGowan, Kenn Quayle, Zoe Lambert, Paul Aboud, Anastasia Kuzyk, Laura Jacobs, Will Pritchard, Irit Shimrat, Ray Kuszelewski and Parkdale Community Legal Clinic.

Some legal services (416 area code)

Legal Aid
  *  Old City Hall. . . . . . . . . . . . . . . . . . 598-0200
  *  College Park. . . . . . . . . . . . . . . . . . .598-1260
  *  Duty Counsel (24 hours). . . . . . . . . . . . . 868-0720

Parkdale Community Legal Services. . . . . . . . . . .531-2411

Community & Legal Aid Services (CLASP). . . . . . . . 736-5029
Aboriginal Legal Services. . . . . . . . . . . . . . .408-3967
Justice for Children and Youth (under 18). . . . . . .920-1633
Dial-a-law. . . . . . . . . . . . . . . . . . . . . . 947-3333
Lawyer Referral Service
(includes free half-hour consultation). . . . . . . . 947-3330

Outside Metro Toronto
Lawyer Referral Service. . . . . . . . . . . . .1-800-268-8326

Student legal aid services
Kingston. . . . . . . . . . . . . . . . . . . . 1-613-545-2102
London. . . . . . . . . . . . . . . . . . . . . 1-519-661-3352
Ottawa. . . . . . . . . . . . . . . . . . . . . 1-613-564-5855
Windsor. . . . . . . . . . . . . . . . . . . . .1-519-253-7150
Trials of the Sex Trade… [Legal tips]
Created: January 15, 1996
Last modified: October 11, 2008
 CSIS Commercial Sex Information Service
Box 3075, Vancouver, BC V6B 3X6
Tel: +1 (604) 488-0710
Email: csis@walnet.org