Her Majesty the Queen v. Barrow [Indexed as: R. v. Barrow]
54 O.R. (3d) 417
[2001] O.J. No. 2219
Docket No. C30789
Court of Appeal for Ontario
Abella, Rosenberg and Goudge JJ.A.
June 8, 2001
- Application for leave to appeal to the Supreme Court of Canada was dismissed January 31, 2002. (Gonthier, Major and Binnie JJ.). S.C.C. File No. 28772. S.C.C. Bulletin, 2002, p. 147.
Criminal law--Prostitution--Living on avails--Accused ran escort agency--Accused arranged "dates" between male clients and female escorts and kept one-third of fee--Accused properly convicted of living on avails of prostitution despite fact that her relationship with escorts was supportive rather than exploitive--Accused's relationship with escorts was parasitic in that she was in business of rendering services to them because they were prostitutes--Offence of living on avails of prostitution does not require proof of coercion.
Criminal law--Prostitution--Procuring--Accused ran escort agency--Accused arranged "dates" between male clients and female escorts and kept one-third of fee--Two female undercover police officers approached accused about working as escort --Accused told both officers that they did not have to engage in sexual acts--Accused set up "date" for one officer and tried to persuade her to show up--Attempt by accused to have persuasive effect upon officer constituted attempt to procure illicit sexual intercourse--Accused merely explained how business operated to second officer and did not hire her or arrange date--Accused acquitted of charges in relation to second officer.
Criminal law--Sentence--Prostitution offences--Accused ran escort agency--Prior unrelated criminal record--Accused sentenced to ten months' imprisonment for living on avails of prostitution and procuring--Trial judge erred in taking gross revenue generated by accused's escort agency over 17 months into account where accused was charged and convicted in relation to three-month period--Accused believed that her activities were legal--Sentence varied to $10,000 fine.
The accused ran an escort agency, arranging "dates" between male clients and female escorts who were employed by the agency. The provision of sexual services for money was the dominant purpose of meetings between the escorts and the clients. For her services, the accused kept one-third of the fee. Based upon the evidence of two female undercover officers who posed as potential employees and four of the accused's escorts, the accused was charged with a number of prostitution- related offences. She was convicted on two counts of attempting to procure women to become prostitutes; two counts of attempting to procure illicit sexual intercourse; three counts of living on the avails of prostitution; and one count of breach of probation. The accused was sentenced to ten months' imprisonment, concurrent, on the prostitution charges and two months consecutive for breach of probation. She appealed against conviction and sentence.
Held, the conviction appeal should be allowed in part; the sentence appeal should be allowed.
The accused was properly convicted of living on the avails of prostitution even if, as she claimed, her relationship with her escorts was supportive and friendly rather than exploitive. However, her occupation was parasitic in that it would not exist if the escorts were not prostitutes. The element of parasitism was found in the fact that she was in the business of rendering services to the escorts because they were prostitutes. The offence of living on the avails of prostitution does not require proof of coercion.
The charges of attempting to procure illicit sexual intercourse and attempting to procure a person to become a prostitute were in relation to the undercover police officers, who approached the accused about working as escorts. The accused told the undercover officers that they did not have to engage in sex, that the fee was the same whether or not sexual acts were performed, but that "realistically", the client would not call back if they refused. She arranged a "date" for one of the officers. The question was whether the accused attempted to induce or attempted to have a persuasive effect upon the undercover officers to have illicit sexual intercourse. It was open to the trial judge to find that the element of procuring was made out in relation to the officer for whom the accused arranged a date. There was some evidence of an attempt by the accused to have a persuasive effect upon the officer. She advised the officer to obtain condoms before going to the motel room and told her that she had to go through with the appointment because the accused did not have another escort who could attend. The conviction for attempting to procure illicit sexual intercourse in relation to that officer should be affirmed, but the charge of attempting to procure the officer for the purpose of prostitution should be stayed by reason of the Kienapple rule [R. v. Kienapple (1974), 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, 44 D.L.R. (3d) 351] against multiple convictions. The accused's encounter with the other officer, however, never went beyond the first interview. The officer was not "hired", and no "date" was arranged. The accused did little more than acquaint the officer with the business. The Crown failed to establish that the accused attempted to procure that officer within the meaning of s. 212 of the Criminal Code, R.S.C. 1985, c. C-46. The convictions in relation to that officer should be set aside.
The conviction for breach of probation could not stand as the Crown failed to prove that the probation order was in effect at the time of any alleged criminal activity by the accused.
At the time of sentencing, the accused was 42 years old. Her prior criminal record consisted of convictions in 1993 for fraud, forgery and personation, theft under $5,000 and failing to appeal. The trial judge rejected a conditional sentence because she did not think that the accused would be deterred from future criminal activity by such a sentence, especially in view of her record, and because of the fact that she was on probation at the time of the offences and the substantial financial gain. She found that the accused's business generated over $167,000 in gross revenue during the 17 months of its operation. The trial judge erred in taking the gross revenue into account. The accused was charged in the indictment in relation to offences over a three-month period. During that period, the Crown proved that she obtained about $2,500 from the three women named in the living on the avails count. In effect, the trial judge punished the accused for offences for which she had never been charged or convicted. It was a mitigating factor that the accused mistakenly believed that she was acting legally. A conditional sentence would have been an appropriate disposition. The accused had spent five days in jail. Two of the convictions had been set aside. In the circumstances, the sentence should be varied to a fine of $10,000.
APPEAL from a conviction for attempting to procure women to become prostitutes, attempting to procure illicit sexual intercourse, living on the avails of prostitution and breach of probation, and from a sentence.
Deutsch v. R., 1986 CanLII 21 (SCC), [1986] 2 S.C.R. 2, 18 O.A.C. 1, 30 D.L.R. (4th) 435, 68 N.R. 321, 27 C.C.C. (3d) 385, 52 C.R. (3d) 305, affg (1983), 1983 CanLII 3484 (ON CA), 5 C.C.C. (3d) 41 (Ont. C.A.); Shaw v. Director of Public Prosecutions, [1961] 2 All E.R. 446, [1962] A.C. 237, [1961] 2 W.L.R. 911, 125 J.P. 437, 105 Sol. Jo. 421, 45 Cr. App. Rep. 113 (H.L.), apld R. v. Bowlby, [1987] O.J. No. 1191 (C.A.); R. v. Celebrity Enterprises Ltd. (1977), 1977 CanLII 2109 (BC CA), 41 C.C.C. (2d) 540 (B.C.C.A.); R. v. Foster (1984), 1984 ABCA 204, 13 C.C.C. (3d) 435 (Alta. C.A.); R. v. Grilo (1991), 1991 CanLII 7241 (ON CA), 2 O.R. (3d) 514, 44 O.A.C. 284, 64 C.C.C. (3d) 53, 5 C.R. (4th) 113 (C.A.), consd Other cases referred to R. v. Downey, 1992 CanLII 109 (SCC), [1992] 2 S.C.R. 10, 90 D.L.R. (4th) 449, 136 N.R. 266, 9 C.R.R. (2d) 1, 72 C.C.C. (3d) 1, 13 C.R. (4th) 129; R. v. Fogarty, [1974] O.J. No. 785 (C.A.); R. v. Friesen (1995), 1995 CanLII 5998 (SK QB), 129 Sask. R. 223, 39 C.R. (4th) 46 (Q.B.); R. v. Kienapple (1974), 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, 44 D.L.R. (3d) 351, 15 C.C.C. (2d) 524, 1 N.R. 322, 26 C.R.N.S. 1 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 212 Sexual Offences Act (4 & 5 Eliz. 2), c. 69 Authorities referred to Thomas, D.A., Principles of Sentencing, 2nd ed. (London: Heinemann, 1979)
Frank Addario and Vanora Simpson, for appellant. Christine Bartlett-Hughes, for respondent.
The judgment of the court was delivered by:
[1] ROSENBERG J.A.: -- The appellant ran an escort agency in the City of Sault Ste. Marie. In 1996, the police began an investigation into her business practices. That investigation showed that the appellant arranged "dates" between male clients who called the agency and female escorts who were employed by the agency. For her services, the appellant kept one-third of a fee that ranged between $150 and $180. The escorts would on occasion engage in sexual activity with the clients. The appellant was aware of this and counselled the escorts as to how to deal with such requests and precautions to take. The evidence tended to show that the appellant did not coerce the escorts and that she was supportive of them.
[2] As a result of the police investigation, the appellant was charged with a number of prostitution-related offences. These charges were based upon the evidence of two female undercover officers, who posed as potential employees, and the evidence of four of the appellant's escorts. Following a trial before Pardu J., the appellant was convicted of attempting to procure women to become prostitutes (two counts); attempting to procure illicit sexual intercourse (two counts); living on the avails of prostitution (three counts); and breach of probation (one count). Pardu J. sentenced the appellant to a total sentence of 12 months' imprisonment. The appellant appeals against the convictions and the sentence.
[3] While the appellant raises a number of issues in her conviction appeal, the principal legal issue concerns the elements of the offence of living on the avails of prostitution. The appellant submits that this offence requires proof of a parasitic relationship between the appellant and the escorts and that there was no evidence of this element of the offence. I have concluded that the appellant's conduct falls within the scope of the living-on-the-avails offence as it applies to persons supplying services to a prostitute. The required element of parasitism was present in this case because she was in the business of rendering services to prostitutes because they are prostitutes. With respect to the charges of attempting to procure, which were based upon the conversations between the undercover officers and the appellant, I have concluded that they were made out in Constable Urajnik's case but they were not made out in Sergeant Rollin's case. I have also concluded that the breach of probation conviction must be set aside because the Crown failed to prove that the probation order was in effect at the time of any alleged criminal activity by the appellant. Finally, I would allow the sentence appeal and substitute a fine.
The Facts
[4] The trial judge gave extensive reasons for judgment and made numerous findings of fact. I did not understand the appellant or the respondent to seriously quarrel with those factual findings. Accordingly, I have drawn this summary of the facts largely from the trial judge's reasons for judgment.
The background
[5] The appellant operated an escort agency called "Elite Escort Service". The appellant advertised the services of the agency in a local newspaper and on her web site. The trial judge found that it was clear from the sexually suggestive nature of the web site, her business cards and the advertisements that provision of sexual services for money was the dominant purpose of meetings between the appellant's escorts and the clients. The appellant received all calls soliciting the services of an escort. She would describe the various escorts so that the potential client could express a preference. The appellant had acted as an escort for some of the callers and thus was aware of their preferences. When a request for service was received, the appellant would page or telephone the escort. The appellant rarely called an escort to work unless that escort had notified the appellant that she would be available to work at that time or that she could be called if one of her regular customers wished for her companions hip.
[6] The appellant made all of the financial arrangements with the client. He was directed to leave the fee, usually $150, by the telephone. On arrival at the residence or motel room, the escort would telephone the appellant and confirm that all was well and that the money was there. After the "date", the escort would arrange to meet with the appellant. The escort would hand over the appellant's fee at that time. The appellant received one-third of the money received from the client. The size of the fee or the appellant's share did not depend upon the services provided by the escort.
Living on the avails of prostitution
[7] These charges were based upon the evidence of four women who worked for the appellant. [See Note 1 at end of document] Their evidence was generally consistent. They contacted the appellant after seeing newspaper advertisements. The witnesses testified that they were not pressured by the appellant to be available for engagements nor to provide sexual services. However, they all understood that certain clients would expect sexual "favours". Whether or not to provide such services was in the discretion of the escort. The trial judge found that while the appellant took pains to tell the escorts that they were not obliged to participate in any sexual activity that made them uncomfortable, "oral sex or conventional sexual intercourse was the service most frequently delivered". The escorts were responsible for arranging contraception, supplying condoms, and looking after their own health care needs. The appellant provided advice to escorts about various matters such as anal sex, bondage, how to handle the dirty or smelly client, the cloth es to wear, the number of services to be offered and the expected duration of the encounter. Technically, the escorts were free to spend the hour chatting with the client. It was, however, most unlikely that a client would request that woman's company a second time.
[8] S. had worked as an escort on prior occasions and was aware that sex for money was involved. She preferred to work for an agency because the agency took care of the headaches of negotiating fees and arranging meetings. The appellant provided S. with business cards and advised her to bring a condom and to invent a false name. Over a period of about six months, S. went on five or six dates. She provided sexual services on three occasions. On the other occasions, she had dinner with the client, talked to him and on one occasion simply watched television with him. S. was 20 years old when she began to work for the appellant. She stopped working when her student loan arrived.
[9] W. had also worked for another escort agency. She asked the appellant if she had to "sleep" with any of the clients and the appellant said no, that it was her choice, "but that's what they expected". She had three dates over a two-month period and all three involved sexual contact.
[10] L. contacted the appellant because she was in financial difficulty. She understood that some sexual contact would be involved but that she was free to reject any sexual activity. She asked if she should bring condoms and the appellant told her that she should. Over a two-month period, she went on 15 dates and one-third involved sexual activity. She came to view the appellant as a friend.
[11] B. testified that "we were an escort to whoever and we did what we wanted. We held the cards." She had 30 encounters and about three-quarters involved sexual activity. B.'s testimony was adduced as similar fact evidence. No count specifically referred to the appellant's relationship with her.
Attempt to procure illicit sexual intercourse and attempt to procure to become a prostitute
[12] Two undercover police officers testified. Charges of attempting to procure the officers to have illicit sexual intercourse and attempting to procure them to become prostitutes were laid in relation to each officer.
[13] Constable Urajnik responded to the appellant's advertisement. She pretended to be a student in need of extra funds. She told the appellant that she had never worked as an escort or a prostitute. At the first meeting, the appellant explained the fee and her share. The appellant also explained the system for calling in when she was available and for arranging meetings. The officer raised issues of contraception and sexually transmitted disease and the appellant said that these were the officer's responsibility. The appellant provided advice on how to approach distasteful clients and secure her safety. The appellant mentioned several times that the escort was free to decide whether sexual activity would occur on a "date", and that it was possible that she would not have sex at all. At the end of the meeting, the appellant asked the officer to call her if she was interested in working.
[14] Ten days later, the officer called the appellant. The officer recorded this conversation. The appellant repeated that she does not like calling the escorts if they have not called her, unless the escort has indicated to call her when a regular client calls. Even then, the escort can say that she does not want to go. The appellant and the officer discussed a first date and sex with clients. The appellant said that she would set the officer up with one of her regulars who would understand if she didn't want to stay.
[15] The appellant set up an appointment for the officer with one of her regular customers. The officer pretended to balk because of nervousness and said she might not want to go. The appellant urged the officer to attend and to bring condoms, but repeated that she only had to talk to the client. The appellant became upset with her and said that, "you have to show up . . . even if it doesn't work out. Just sit and talk." The appellant repeated that and added that she would start to lose clients. She told the officer to have an open mind and "you're gonna stay and if you find that it's not what you want then leave. But if you sit and talk, like, take the money." The officer finally arrived but by then the client had left the motel. This upset the appellant. However, later that day the officer and the appellant had a final conversation. The appellant spoke at length about the need to be comfortable and certain about working as an escort. She was no longer angry with the officer and there was no suggestion that the officer had to compensate the appellant for the lost client. The appellant urged the officer to take time to consider her choices because she did not want her to feel pressured. The appellant said that she did not want it on her conscience that she pressured her into anything. She said, "all you're doing is agreeing to spend an hour of your time with them. You don't have to do anything."
[16] Sergeant Monique Rollin made a similar approach to the appellant. She told the appellant that she had never worked as an escort or a prostitute. Her conversations with the appellant were similar to those with Constable Urajnik. The appellant told the officer that she could earn a lot of money. The appellant also told her that having sex with the clients was part of the job but that providing sex would be the officer's choice. The appellant said that "technically" the clients were not expecting anything but that "realistically" they won't call back. The appellant told the officer that she was never obliged to work or engage in any activity not acceptable to her. The officer said she would think it over and might call back.
Breach of probation
[17] The appellant was convicted of various fraud-related offences on March 12, 1993. As part of her sentence, she was placed on probation. On January 19, 1994, the appellant was "re-sentenced" to a custodial term of three months, a term of probation and a compensation order. It was unclear whether the re-sentencing involved the probation order. The order itself stated that it shall run "for a period of three years from August 4, 1993". The allegation of breach of probation was based on a breach of the condition to keep the peace and be of good behaviour by committing criminal offences. On the appeal, Crown counsel conceded that the three-year probation order ran from August 4, 1993 and that therefore the Crown had to prove that the appellant committed a criminal offence prior to August 4, 1996. The only witness to testify about alleged illegal activity during this period was S. She testified that the appellant outlined the structure of her business, including that she bring condoms to her "dates" during this period. There was no evidence that the appellant received any money from S. prior to August 4, 1996.
Analysis
Living on the avails of prostitution
[18] Section 212(1)(j) of the Criminal Code, R.S.C. 1985, c. C-46 provides that everyone commits an offence who "lives wholly or in part on the avails of prostitution of another person". The appellant concedes that each of the escorts named in the counts of the indictment were prostitutes making money from prostitution and that they gave money from their prostitution to the appellant. Looking only at the words of s. 212(1)(j), it would seem that the offence was made out in relation to the three escorts named in the indictment. The appellant submits, however, based principally on the decision of this court in R. v. Grilo (1991), 1991 CanLII 7241 (ON CA), 2 O.R. (3d) 514, 64 C.C.C. (3d) 53 (C.A.), that the offence requires proof that the appellant received the earnings because she had a parasitic relationship with the prostitute. The appellant submits that the Crown failed to prove this element. The trial judge reviewed Grilo and many of the other leading cases but concluded that the charge of living on the avails was made out. She adopted the reasoning of Gerein J. in R. v. Friesen (1995), 1995 CanLII 5998 (SK QB), 129 Sask. R. 223, 39 C.R. (4th) 46 at p. 57 (Q.B.):
On the other hand, if two or more people embark upon a joint venture which has as its goal the earning of money through the prostitution of one of them, it follows that all who share in the earnings are living off the prostitution. The fact that each makes a contribution to the success of the venture does not change its essential nature which is to enrich oneself through the prostitution of a person. Whether one cloaks the endeavour in terminology of contract or business does not change the underlying reality.
[19] The trial judge summarized her findings as follows:
The evidence clearly established that Donna Barrow entered into a cooperative arrangement with each of S., L., and W. with a view to producing income from prostitution, and that Donna Barrow took one-third of the revenue generated from prostitution. This is sufficient to establish the offence.
[20] In Grilo, this court adopted the interpretation by Lord Reid in Shaw v. Director of Public Prosecutions, [1961] 2 All E.R. 446, [1962] A.C. 237 (H.L.) of the comparable provision in the Sexual Offences Act, 1956, 4 & 5 Eliz. 2, c. 69. Lord Reid introduced the concept of a requirement of a parasitic relationship as the way to keep the reach of the offence within reasonable limits. He described the cases to which the section was clearly directed at p. 453 All E.R.:
It is well known that there were, and are, men who live parasitically on prostitutes and their earnings. They may be welcome and merely cohabit, or they may bully women into earning money in this way. They prey or batten on the women. Such men are clearly living on the earnings of prostitution; if they have or earn some other income, then they are living in part on such earnings.
(Emphasis added)
[21] Shaw was charged because he published the "Ladies Directory" containing the names, addresses and telephone numbers of prostitutes with nude photographs and other information about the services the prostitutes were willing to perform. Shaw had conceived of this service when the Sexual Offences Act, 1956 came into effect so that it was no longer possible for prostitutes to solicit in the streets and the prostitutes needed an alternative way to advertise. Lord Reid had no doubt that this conduct also fell well within the terms of the offence, as he said at pp. 453-54 All E.R.:
Such men may render services as protectors or as touts, but that cannot make any difference, even if their relationship were dressed up as a contract of service; and a man could not escape because he acted in some such capacity for a number of women. His occupation would still be parasitic; it would not exist if the women were not prostitutes. It appears to me that the accused in this case comes well within this class. His occupation of gathering and publishing these advertisements would not exist if his customers were not prostitutes. He was really no more than a tout using this means of bringing men to the prostitutes from whom he received money.
(Emphasis added)
[22] Lord Reid then considered a third case, people who provide services to prostitutes as they would to anyone else. As in the other two cases, they would be found to have committed the offence only if they lived parasitically. He described the nature of the relationship that the prosecution would have to prove in such cases at p. 454 All E.R.:
"[L]iving on" normally, I think, connotes living parasitically. It could have a wider meaning but, if it is to be applied at all to those who are in no sense parasites, then I think its meaning must be the same, whether we are considering the earnings of prostitution or of any other occupation or trade. If a merchant sells goods to tradesmen, is he living on the earnings of their trades? or if a landlord lets premises for business purposes, is he living on the earnings of those businesses? or if he lets to a man of leisure, is he living on that man's dividends? Those are the sources of the rent which he receives, but I do not think that one would normally say that he is living on those sources. It is not an impossible use of the words -- only unusual. And a penal statute ought not to be widened by reading its words in an unusual sense unless there is very good reason for doing so.
(Emphasis added)
And at p. 455 All E.R.:
I suppose there might be a tradesman who was as purely parasitical as the accused, and there might be a tradesman who used his trade as a means to become a joint adventurer with prostitutes. But, leaving such possible cases aside, I could not hold that a tradesman who supplies goods or services to a prostitute in the ordinary course of his business is living on her immoral earnings. I cannot find or think of any case which cannot be adequately dealt with on what I think to be the ordinary and natural meaning of the words of the Act.
(Emphasis added)
[23] The acts of the appellant fall within the scope of the living-on-the-avails offence as interpreted in Shaw. Her occupation is parasitic in that it would not exist if the escorts were not prostitutes. The fact that on some occasions the escorts did not provide sexual services simply means that the appellant did not live wholly on the avails of prostitution. Put another way, she had become a joint adventurer with the prostitutes named in the indictment. I wish to refer to one other case, before considering whether there is anything in Grilo that leads to a different conclusion.
[24] R. v. Celebrity Enterprises Ltd. (1977), 1977 CanLII 2109 (BC CA), 41 C.C.C. (2d) 540 (B.C.C.A.) concerned the liability of the owners of a nightclub frequented by prostitutes. The court referred with approval to Shaw and in particular to the test set out by Viscount Simonds at p. 450 All E.R.: "a person may fairly be said to be living in whole or in part on the earnings of prostitution if he is paid by prostitutes for goods or services supplied by him to them for the purpose of their prostitution which he would not supply but for the fact that they were prostitutes." Speaking for the court in Celebrity Enterprises at p. 557 C.C.C., Robertson J.A. pointed out that there was nothing that the nightclub supplied to the prostitutes, such as seats at tables or food and drinks, that it would not have supplied to any other patron. He went on to point out that "the management took no cut whatever from the earnings of any woman from prostituting herself with a man she met on the premises." The court in Celebrity Enterprises allowed the conviction appeals and entered acquittals.
[25] Grilo did not directly concern either a pimp or a person supplying services to prostitutes like Shaw, Celebrity Enterprises or this case. Grilo was living with a prostitute, Tracy Pinette. The trial judge described Grilo's role in these terms, as quoted by Arbour J.A. at pp. 515-16 O.R., p. 55 C.C.C.:
There is no persuasive evidence to suggest that, throughout this period, Pinette worked as a prostitute under the control, direction or influence of the accused. Rather, on the evidence presented to me, it is more likely that the function of the accused was solely to act as Pinette's protector and to hold her earnings safely for her until they next returned home, at which time he would give the money back to Pinette.
Apart from their working relationship which I have described above, the accused and Pinette were likely romantically involved with each other. At the time of the accused's arrest, he and Pinette lived together in an apartment rented by him.
Following his arrest, the accused made the following admissions in a statement given by him to the police:
He occasionally buys a submarine sandwich or a cup of coffee for his own use out of Pinette's prostitution- related earnings;
Pinette helps him to pay the rent for their apartment;
Pinette buys food for herself and for the accused.
. . . it is a likely inference to be drawn from all of the evidence that the accused benefited from the proceeds of Pinette's prostitution solely by virtue of his status as her live-in mate and that there was no element of exploitation or parasitism on his part.
(Emphasis added)
[26] In considering this fact situation, Arbour J.A. made it clear, in my view, that she was concerned only with the situation of a person living with a prostitute as opposed to someone supplying services to a prostitute. Thus she introduced her discussion of the question as follows at p. 520 O.R., p. 60 C.C.C.:
Neither Shaw nor Celebrity Enterprises considered directly the situation at bar. Both were concerned with the criminal responsibility, if any, of persons who supply services to prostitutes. Neither of these cases addressed directly the separate issue of the extent to which a person may derive benefits from living with a prostitute before that person can be said to be living on the avails of prostitution.
(Emphasis added)
[27] Arbour J.A. therefore must have concluded that the accused did not receive any of Pinette's earnings for the "protector" services he provided. Arbour J.A. held, at p. 521 O.R., p. 60 C.C.C., that in the case of a person living with a prostitute, the Shaw test, whether as enunciated by Viscount Simonds or Lord Reid, had to be modified:
To pursue the rhetorical questions raised by Lord Reid in Shaw one would ask here: if a man shares expenses with his spouse or roommate, is he living on the avails of her income? As well, to the list of persons contemplated by Viscount Simonds who may engage in legitimate activities with prostitutes even though money may change hands, such as the grocer, doctor or lawyer, one must add the spouse or roommate.
Of course, neither the grocer, the doctor nor the spouse is exempt from conviction merely because his or her activity or status is otherwise legitimate. In the case of a person living with a prostitute, one must turn to indicia which will serve to distinguish between legitimate living arrangements between roommates or spouses, and living on the avails of prostitution. When a person receives money directly or indirectly from a prostitute in exchange for services rendered, the test, according to Shaw, is whether the service is rendered to the prostitute because she is a prostitute or, alternatively, whether the same service would be rendered to anybody else. In the case of living arrangements the test obviously must be modified. In my view, the proper question is whether the accused and the prostitute had entered into a normal and legitimate living arrangement which included a sharing of expenses for their mutual benefit or whether, instead, the accused was living parasitically on the earnings of the pro stitute for his own advantage. The occasional buying of a doughnut or a cup of coffee would hardly amount to feeding a parasite in the ordinary acceptance of that word.
(Emphasis added)
[28] Arbour J.A. went on to explain at p. 521 O.R., p. 61 C.C.C. that where the accused is living with a prostitute, the parasitic aspect of the relationship contains "an element of exploitation which is essential to the concept of living on the avails of prostitution". She distinguished the parasitic relationship from the case where the prostitute supports a child or a disabled parent, someone whom she is legally or morally obliged to support. Arbour J.A. concluded her analysis at p. 522 O.R., p. 61 C.C.C. with this statement:
Living on the avails is directed at the idle parasite who reaps the benefits of prostitution without any legal or moral claim to support from the person who happens to be a prostitute.
[29] The appellant submits that she should not be convicted of the living-on-the-avails offence because her relationship with the escorts was supportive rather than exploitive. She provided services that allowed the women to remain off the streets in relative safety. No escort was forced to take a particular job, nor perform any particular act, including sexual acts. She provided advice and, in some cases, friendship. Be that as it may, it is my view that the appellant was properly convicted. Her conduct falls squarely within the Shaw test that was approved in Celebrity Enterprises and Grilo as applied to a person supplying services to a prostitute. The test as modified by Arbour J.A. in Grilo has no application to this case since the appellant was supplying services to the escorts. She was not merely living with them, nor were the escorts in a relationship in which they were legally or morally obliged to support the appellant. The element of parasitism is found in the fact that she is in the business of rendering services to the escorts because they are prostitutes. To repeat an excerpt from the speech of Lord Reid in Shaw [at pp. 453-54 All E.R.]:
Such men may render services as protectors or as touts, but that cannot make any difference, even if their relationship were dressed up as a contract of service; and a man could not escape because he acted in some such capacity for a number of women. His occupation would still be parasitic; it would not exist if the women were not prostitutes.
(Emphasis added)
[30] The appellant was aware that the escorts provided sexual services for money. She solicited clients for the escorts and took one-third of their earnings as her share for arranging the "dates".
[31] At the hearing, counsel for the appellant presented an interesting policy argument. He pointed out that while many aspects of prostitution have been rendered illegal, the act of prostitution by an individual has not been criminalized. He argued that Parliament has implicitly recognized that there will always be prostitution. He argued that the appellant, and people like her, supply a valuable service to prostitutes. If women could not form these kinds of business relationships they would be driven into the streets where they would be much more vulnerable, isolated and subject to violence. He suggested that the escort agency relationship should not fall within the living on the avails offence unless there was some element of coercion or control. [See Note 2 at end of document] Both counsel referred us to a number of articles concerning the policy underlying Canada's treatment of prostitution. In my view, this kind of policy discussion is beyond the scope of this appeal. The appellant did not challenge the constitutionality of the living-on-the-avails offence on the basis that it was overly broad and interfered with the rights of prostitutes to associate and safely earn a living from an occupation that Parliament has not directly criminalized. Moreover, parts of s. 212 of the Criminal Code deal expressly with coercion offences such as the following:
212(1) Every one who
(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,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
In my view, the living-on-the-avails offence does not require proof of coercion.
[32] Accordingly, I would not give effect to the appeal from conviction for living on the avails.
Attempting to procure
[33] The appellant was convicted of attempting to procure illicit sexual intercourse and attempting to procure a person to become a prostitute in relation to each of the undercover police officers. The Crown concedes that if the appeal in relation to these counts is otherwise dismissed, one count in relation to each officer must be stayed by reason of the rule against multiple convictions: R. v. Kienapple (1974), 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, 15 C.C.C. (2d) 524.
[34] The trial judge gave the following reasons for finding that these offences were made out:
I am satisfied that Donna Barrow attempted to induce Karen Urajnik both to have illicit sexual intercourse as alleged and to become a prostitute.
The placing of the advertisement, the interview, the holding out of the expectation of substantial earnings, the advice given and the arrangement of the appointment at the Bel Air Motel and the advice to buy condoms at a convenience store were all undertaken with a view to inducing Urajnik to have illicit sexual intercourse and to become a prostitute.
Similarly, the interview with Rollin, the advice given, the holding out of the possibility of substantial earnings and the attempt to set up an appointment with one of her regular patrons were all acts undertaken with a view to inducing Rollin to have sexual intercourse and to become a prostitute, as alleged.
[35] The offences of attempting to procure are set out in s. 212 as follows:
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,
(d) procures or attempts to procure a person to become, whether in or out of Canada, a prostitute,
is guilty of an indictable offence . . . .
[36] The appellant submits that the trial judge erred in finding that these offences were made out, because it was made clear to the officers that they were not required to engage in acts of prostitution or illicit sexual intercourse. The appellant told the officers that it was their choice whether to become escorts and whether to engage in sexual intercourse, and that the fee was the same whether or not sexual acts were performed. The appellant therefore submits that she did not attempt to "procure" the officers to have illicit sexual intercourse or to become prostitutes.
[37] "Procure" for the purposes of s. 212 has been interpreted by this court and the Supreme Court of Canada in R. v. Deutsch (1983), 1983 CanLII 3484 (ON CA), 5 C.C.C. (3d) 41 (Ont. C.A.), affirmed 1986 CanLII 21 (SCC), [1986] 2 S.C.R. 2, 27 C.C.C. (3d) 385. Le Dain J. held as follows at pp. 26-27 S.C.R., p. 403 C.C.C.:
In the case at bar the Court of Appeal agreed with the trial judge on the applicable meaning of "procure". The meaning selected by the trial judge and approved by the Court of Appeal was "to cause, or to induce, or to have a persuasive effect upon the conduct that is alleged." Martin J.A. expressed his agreement at p. 49 with the following statement of the issue by the trial judge: "The question for decision is did Mr. Deutsch attempt to cause or attempt to induce or attempt to have a persuasive effect upon the woman in question to have illicit sexual intercourse with another person . . .". I agree that the sources referred to by the trial judge and Martin J.A. support the meaning given by them to the word "procure".
[38] The charge of attempting to procure Constable Urajnik to have illicit sexual intercourse related to the date at the motel, which was arranged for her by the appellant. Despite the care with which the appellant conducted the interviews with the officers and her obvious intention not to pressure them into having either illicit sexual intercourse or to become prostitutes, I am satisfied that it was open to the trial judge to find that the element of procuring was made out in relation to Constable Urajnik. This was essentially a question of fact. There was some evidence of an attempt by the appellant to have a persuasive effect upon the officer. The appellant advised the officer, whom the appellant had hired after the initial interview, to obtain condoms before going to the motel room and told her that she had to go through with the appointment because the appellant did not have another escort who could attend. This was all in the context of the earlier conversations where it was made clear that some of the clients were expecting the escort to perform sexual acts for the $150 fee. It was open to the trial judge, who had the advantage of hearing the officer and listening to the tape recordings, to find that the conversations leading up to the motel date were intended by the appellant to have the required persuasive effect. I would uphold the conviction for attempting to procure illicit sexual intercourse in relation to Constable Urajnik. I would conditionally stay the charge of attempting to procure Constable Urajnik for the purpose of prostitution.
[39] I take a different view, however, of the encounter between the appellant and Sergeant Rollin. This never went beyond the first interview and Rollin was not "hired" and no "date" was arranged. Even taking into account the trial judge's advantage, my reading of the transcript of evidence and the transcript of the tape recordings shows little more than the appellant acquainting the officer with the business. The officer presented herself as experienced with men and of knowing what an escort agency involved. The only element of persuasion was the appellant's references to the possibility of earning a lot of money. These statements were not tied to a requirement of illicit sexual intercourse or prostitution. The appellant simply told the officer that if she worked a lot she could make a lot of money, but it was entirely up to the officer. The appellant stressed that the officer should think about it and make sure it was what she wanted to do. There is one part of the taped transcript that is of some concern where the appellant described for the officer what a date might be like:
Appellant: Like tonight I can tell you exactly what's going to happen, you're going to get there and you're not going to have any problem . . . (unintelligible).
Rollin: (unintelligible)
Appellant: (unintelligible) . . . oh God, you're going to make a fortune. Like I always tell the girls . . . (unintelligible).
Rollin: Oh, that's too funny.
Appellant: He's gonna tell you, oh, I don't do this that often, he does it three times a week. Oh, you're really pretty, you're so beautiful, like why are you doing this, give me your telephone number I want to call you at home on your own.
Rollin: Yeah right.
(Emphasis added)
[40] As in Deutsch, the holding out of large financial rewards in the course of the interview dependent upon the necessity of having sexual intercourse is capable of constituting the actus reus of the offence. However, so much of this part of the conversation is unintelligible that it is impossible to determine whether this is what the appellant is referring to. In her testimony, Sergeant Rollin was not asked about this part of the conversation. In the end, I cannot be satisfied that the appellant attempted to procure Sergeant Rollin within the meaning of s. 212 and I would set aside the convictions on those counts.
Breach of probation
[41] In my view, the conviction for breach of probation cannot stand. As indicated, the probation order expired on August 4, 1996. All of the offences were alleged to have occurred after that date except for one count of living on the avails in relation to S. The only evidence is that S. had a date with one client in July 1996. At that time, she ate dinner with him and there was no sexual activity. The prosecution failed to prove that the appellant committed any act that would constitute a breach of her probation order.
The sentence appeal
[42] The trial judge imposed a sentence of ten months' imprisonment concurrent on all of the charges except for the breach of probation. On that charge, she imposed a sentence of two months consecutive. At the time of sentencing, the appellant was 42 years of age. Her prior criminal record consisted of convictions in 1993 for fraud, forgery and personation, theft under $5,000 and failing to appear. In imposing a custodial sentence, the trial judge particularly relied upon this court's decision in R. v. Bowlby, [1987] O.J. No. 1191 and the decision of the Alberta Court of Appeal in R. v. Foster (1984), 1984 ABCA 204, 13 C.C.C. (3d) 435. In Bowlby, this court held that "save in exceptional cases" a custodial sentence is necessary for the offence of living on the avails of prostitution and particularly where "the sexual services have been rendered as part of a commercial enterprise well organized and publicly advertised". The court therefore allowed a Crown appeal and imposed a custodial sente nce, but of only six months bearing in mind that the accused was a first offender, that no threats or coercion were used and that the women were of a mature age.
[43] In Foster, the Alberta Court of Appeal adopted the range of sentence for the living on the earnings of prostitution offence in England as described by D.A. Thomas in Principles of Sentencing, 2nd ed. (London: Heinemann, 1979). Thomas describes three categories of cases, the third being as follows, as quoted at p. 441 C.C.C. of Foster:
Sentences in the lowest bracket, between twelve and eighteen months' imprisonment, are likely to be found where the offender receives money from the woman concerned but the relationship cannot be characterized as one of exploitation.
[44] The trial judge in the case at bar rejected a conditional sentence because she did not think that the appellant would be deterred from future criminal activity by such a sentence especially in view of her record, that she was on probation at the time of the offences and the substantial financial gain. The trial judge found that the appellant's business generated over $167,000 in gross revenue during the 17 months of its operation.
[45] There are a number of reasons why, in my view, the sentence imposed by the trial judge must be reviewed. First, I have set aside two of the convictions, including the conviction for breach of probation. Thus, an important aggravating factor no longer exists.
[46] Second, I agree with counsel for the appellant that the trial judge erred in taking into account the gross revenue generated by the appellant's operation. The appellant was charged in the indictment in relation to offences over a three- month period. During that period, the Crown proved that the appellant obtained about $2,500 from the three women named in the living-on-the-avails counts. In effect, the trial judge punished the appellant for offences for which she had never been charged, or convicted. See R. v. Fogarty, [1974] O.J. No. 785 (C.A.).
[47] Third, the trial judge placed undue emphasis on the decision of this court in Bowlby and the decision of the Alberta Court of Appeal in Foster, in view of the circumstances of this case. First, it is apparent from the tape-recorded conversations with the undercover officers that the appellant believed that she was acting legally. This explains why she was operating openly and advertising in local newspapers. Her mistake of law is a relevant mitigating factor. Second, not only was there no coercion by the appellant but, in fact, she offered support and advice to the escorts. She placed no pressure on the escorts and left it entirely to them whether and when they wished to take on jobs. Finally, Bowlby and Foster were decided before the conditional sentence regime came into force. This court's statement that save in exceptional circumstances a custodial sentence must be imposed for this offence must be read in that light. In my view, a conditional sentence can be a n appropriate disposition in cases such as this.
[48] The appellant has now been on bail pending appeal for approximately two and one-half years, apparently without incident. She served about five days in jail before being given bail. At trial, Crown counsel's primary submission was that the accused be sentenced to a term of imprisonment or a substantial fine. I do not think that any purpose would now be served by a custodial sentence, either as immediate imprisonment or as a conditional sentence. In my view, a substantial fine would be an appropriate disposition at this point.
Disposition
[49] Accordingly, I would allow the appeal from conviction in part as follows. I would set aside the convictions on counts 2 and 4, relating to Sergeant Rollin, and enter acquittals. I would set aside the conviction on count 3, relating to Constable Urajnik, and enter a conditional stay of that count. I would set aside the conviction on count 9, breach of probation, and enter an acquittal on that count. I would otherwise dismiss the appeal from conviction. I would grant leave to appeal sentence, set aside the sentence of imprisonment and substitute a fine of $2,000 on each of counts 1, 5, 6, 7 and 8 for a total fine of $10,000. There will also be a victim fine surcharge of $1,500. The appellant will have 60 days to pay the fine and the victim fine surcharge.
Conviction appeal allowed in part; sentence appeal allowed.
Notes
Note 1: The trial judge made an order prohibiting publication of the identity of the escort witnesses. That order is still in effect. Accordingly, where necessary to refer to the evidence of any of these witnesses, I will use initials.
Note 2: Counsel referred the court to the facts in R. v. Downey, 1992 CanLII 109 (SCC), [1992] 2 S.C.R. 10, 72 C.C.C. (3d) 1 where the accused ran an escort agency but subjected the prostitutes to certain forms of coercion. For example, one of the escorts was "suspended" for not performing certain services that the client had demanded.