Canadian Criminal Law/Offences/Procuring and Living on the Avails of Prostitution

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Procuring and Living on Avails
s. 212 of the Crim. Code
Election / Plea
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
References
Offence Elements
Sentence Principles
Sentence Digests

Overview[edit]

Section 212 creates 13 separate indictable offences related to facilitating prostitution and similar offences.

Legislation[edit]

Procuring
212. (1) Every one who

(a) procures, attempts to procure or solicits a person to have illicit sexual intercourse with another person, whether in or out of Canada,
(b) inveigles or entices a person who is not a prostitute to a common bawdy-house for the purpose of illicit sexual intercourse or prostitution,
(c) knowingly conceals a person in a common bawdy-house,
(d) procures or attempts to procure a person to become, whether in or out of Canada, a prostitute,
(e) procures or attempts to procure a person to leave the usual place of abode of that person in Canada, if that place is not a common bawdy-house, with intent that the person may become an inmate or frequenter of a common bawdy-house, whether in or out of Canada,
(f) on the arrival of a person in Canada, directs or causes that person to be directed or takes or causes that person to be taken, to a common bawdy-house,
(g) procures a person to enter or leave Canada, for the purpose of prostitution,
(h) for the purposes of gain, exercises control, direction or influence over the movements of a person in such manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution with any person or generally,
(i) applies or administers to a person or causes that person to take any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower that person in order thereby to enable any person to have illicit sexual intercourse with that person, or
(j) lives wholly or in part on the avails of prostitution of another person,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
Living on the avails of prostitution of person under eighteen
(2) Despite paragraph (1)(j), every person who lives wholly or in part on the avails of prostitution of another person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of two years.
Aggravated offence in relation to living on the avails of prostitution of a person under the age of eighteen years
(2.1) Notwithstanding paragraph (1)(j) and subsection (2), every person who lives wholly or in part on the avails of prostitution of another person under the age of eighteen years, and who

(a) for the purposes of profit, aids, abets, counsels or compels the person under that age to engage in or carry on prostitution with any person or generally, and
(b) uses, threatens to use or attempts to use violence, intimidation or coercion in relation to the person under that age,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years but not less than five years.
Presumption
(3) Evidence that a person lives with or is habitually in the company of a prostitute or lives in a common bawdy-house is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution, for the purposes of paragraph (1)(j) and subsections (2) and (2.1).
Offence — prostitution of person under eighteen
(4) Every person who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years and to a minimum punishment of imprisonment for a term of six months.
(5) [Repealed, 1999, c. 5, s. 8]
R.S., 1985, c. C-46, s. 212; R.S., 1985, c. 19 (3rd Supp.), s. 9; 1997, c. 16, s. 2; 1999, c. 5, s. 8; 2005, c. 32, s. 10.1.


CCC

Proof of the Offence[edit]

Procuring Sex for Another (212(1)(a))

Inveigle or Entice (212(1)(b))

Conceal in Bawdy-house (212(1)(c))

Procuring a Prostitute (212(1)(d))

Procuring another to a bawdy-house (212(1)(e))

Procuring person arriving in Canada (212(1)(f))

Procuring another to enter or leave Canada (212(1)(g))

Control or Influence in Prostitution (212(1)(h))

Overpowering or Stupefying Another to Enable Sex (212(1)(i))

Living on Avails of Prostitution (212(1)(j))

Living on Avails of Under-age Prostitute (212(2))

Living on Avails of Under-age Prostitute with Violence (212(2.1))

Obtains Sex of Under-age Prostitute 212(4)

Interpretation[edit]

"Living-on-the-avails" does not require the Crown to prove there was coercion.[1]

Under s. 197, a "prostitute" "means a person of either sex who engages in prostitution"

Under s. 197, a "place" "includes any place, whether or not (a) it is covered or enclosed, (b) it is used permanently or temporarily, or (c) any person has an exclusive right of user with respect to it;"

  1. R. v. Barrow, 2001 CanLII 8550 (ON CA) at 31

Living on Avails[edit]

Section 212(1)(j) was found to be arbitrary, overbroad, and disproportionate to the provisions objectives and so violates s. 7 of the Charter.[1]

Section 212(3) creates a presumption for those who are found to live in a common bawdy-house or lives with or is habitually in the company of a prostitute is living on the avails of prostitution. This section violates the presumption of innocence but is within a reasonable limit and is constitutionally valid.[2]

  1. Canada (Attorney General) v. Bedford, 2012 ONCA 186 appeal to SCC pending
  2. R v Downey, [1992] 2 SCR 10

Under-age Prostitutes[edit]

Soliciting under s.213 is not a lesser included offence to the offence under s. 212(4).[1]

It is not necessary that the prostitute solicited by the accused be a real person.[2]


  1. R v Amabile (2000), 143 CCC (3d) 270 (BCCA)
  2. R. v. Kerster, 2001 BCSC 230 at para 41 (NB: concerned an earlier version of s. 212(4))