Patrick J Ducharme

The Protection Of Communities and Exploited Persons Act came into force on December 6, 2014.
It amends the Criminal Code, among other things, to:

create an offence that prohibits purchasing sexual services or communicating in any place for that purpose;
create an offence that prohibits receiving a material benefit that derived from the commission of an offence referred to in paragraph (a);
create an offence that prohibits the advertisement of sexual services offered for sale and to authorize the courts to order the seizure of materials containing such advertisements and their removal from the internet;
modernize the offence that prohibits the procurement of persons for the purpose of prostitution;
create an offence that prohibits communicating – for the purpose of selling sexual services – in a public place, or in any place open to public view, that is or is next to a school ground, playground or daycare centre;
ensure consistency between prostitution offences and the existing human trafficking offences; and
specify that, for the purposes of certain offences, a weapon includes any thing used, designed to be used or intended for use in binding or tying up a person against their will.

The objective of the legislation is far different than the aim of the Supreme Court of Canada’s decision in Bedford. This legislation unabashedly seeks to eliminate all forms of prostitution, by criminalizing every aspect of the world’s oldest profession. It operates from the naïve and inaccurate premise that the prostitutes are always and everywhere “victims” in an industry that recruits them and uses them against their wishes for financial benefit.

It fails to recognize that many prostitutes are not forced into prostitution. Instead, they enter prostitution intentionally and purposefully. The legislation mocks the Supreme Court of Canada’s decision by its paternalistic and inaccurate description of prostitution as a form of sexual exploitation that “disproportionately and negatively impacts on women and girls.” Its title, “Protection of Communities and Exploited Persons Act” reads like a bad script drafted by old white men pontificating of the smarmy life of others that they have been ordered to protect. The protection is delivered by eliminating them. This legislation will last in its present form only as long as it takes to arrive at the Supreme Court of Canada again.

The prostitutes who led the successful challenge in the Supreme Court of Canada only asked to be allowed to ply their trade in safety. It was a modest request. Their safety concerns were found to be legitimate. They did not claim to be exploited. They did not say they were “recruited” or “forced” into the business. Until this legislation is also found to be unconstitutional, they will be required to work in an environment that is much more dangerous than the one they sought to improve.

Prostitutes will not be allowed to work in a business setting, employ receptionists, advertise their services or have security guards. Every other person except “the prostitute” under this legislation will be committing a criminal offence. The prostitutes, according to this legislation, are “objects” purchased by those with money and power. They, according to this legislation, allow men, the primary purchasers of sexual services, to access their bodies, thereby demeaning and degrading the prostitutes. The government means to stop the degradation. The prostitutes, under this legislation, have failed to recognize that they function without any sense of human dignity, and are considered as blight on society. This legislation will be viewed by most as legislative abuse. It mocks the Supreme Court of Canada’s decision in Bedford.

The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.

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In Canada v. Bedford three current or former prostitutes applied for a declaration that sections 210, 212(1) and 213(1) of the Code infringe the right to life, liberty and security of the person pursuant to section 7 of the Charter. The Supreme Court of Canada agreed. The three impugned sections, concerned with preventing public nuisance and exploitation of prostitutes, were unconstitutional as offending section 7 and failed to pass section 1 scrutiny. The court found that these provisions did not merely impose conditions on how prostitutes operate, they in fact, imposed dangerous conditions on prostitutes thereby preventing people (the prostitutes) working in a risky but legal activity, from taking steps to protect themselves from those risks.

Continue reading “Canada’s Prostitution Laws”

The Supreme Court of Canada has made a strong statement in support of religious freedom, even when it relates to fears that religious freedom may place some students at risk in the educational system. In Multani2 the court was required to deal with the competing interests between security of all students and the religious practice of Orthodox Sikhs requiring them to wear a “kirpan”, a religious object that resembles a dagger and is made of metal, at all times. The student in question accidentally dropped his kirpan that he was wearing under his clothing in the school he was attending.

Continue reading “Religious Freedom Part 2”

Until the recent Supreme Court of Canada decision in Mounted Police Association of Ontario v. Canada1 RCMP members were not permitted to unionize or engage in collective bargaining. They had been excluded from the regime governing labour relations for federal public service members. Consequently, they were non-unionized federal employees. The court held, however, in a 6-1 decision, that section 96 of the RCMP regulations infringed subsection 2(d) of the Charter. The court found that the infringement was not justified under section 1. If section 96 of the RCMP regulations had not been repealed prior to the decision it would have been declared to be of no force or effect. The court found that subsection 2(d) protects three classes of activities:
Continue reading “Freedom of Association”

This section provides that the “Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” This section permits an accused, including a Corporation, to seek an order from the court that legislation is invalid by reason of a violation of the Charter.
Continue reading “Remedies Under the Charter: Section 52”

There are two specific sections that provide for the remedies available when anyone alleges a breach of an accused’s Charter rights. These two important sections are sections 24 and 52.

Section 24

This remedy section provides that anyone whose rights or freedoms have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Continue reading “Remedies Under the Charter: Section 24”

Section 12 of the Charter provides that everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

Section 13 of the Charter provides that a witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.¹ However, in relation to this protection, anyone wishing to avail themselves of it should give serious consideration to the Supreme Court of Canada’s controversial decision in R. v. Nedelcu²
Continue reading “Section 12 of the Charter”

They are as follows:

• Section 8: the right to be secure against unreasonable search and seizure.

• Section 9: the right not to be arbitrarily detained or imprisoned.

• Section 10: the right on arrest or detention to be informed promptly of the reason for the arrest or detention, and, to retain and instruct counsel without delay, and to be informed of that right, and, to have the validity of that detention determined by way of habeas corpus, and to be released if the detention is not lawful.

• Section 11: outlines several different rights for any person charged with an offence; namely:

1. to be informed without unreasonable delay of the specific offence.

2. to be tried within a reasonable time.

3. not to be compelled to be a witness in proceedings against that person in respect of that offence.

4. to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial court.

5. not to be denied reasonable bail without just cause.

6. if finally acquitted of the offence, not to be tried for it again, and, if finally found guilty and punished for the offence, not to be tried or punished for it again.

7. if found guilty of the offence, and if the punishment for the offence has been varied between the time of the commission and the time of sentencing, to the benefit of the lesser punishment.

Continue reading “Other Protected Charter Rights”

The most important right offered to Canadian citizens is found in section 7 of the Charter. It promises every Canadian, “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The reason this is the most important right under the Charter is that all the specific rights outlined in sections 8 to 14 of the Charter, are supported by this overall right to fairness under the Charter.
Continue reading “The Importance of Section 7 of Charter”