[Recorded by Electronic Apparatus]
Thursday, November 28, 1996
.1153 
[English]
The Chair: We are back and we're on Bill C-27.
Did you have a procedural matter you wanted to deal with first?
Mr. Ramsay (Crowfoot): I just wanted to table a motion on 48-hour notice.
The Chair: That doesn't have to be done in committee as long as it goes to the clerk and then we count the 48 hours. I don't know how we count the 48 hours but in any event....
Mr. Ramsay: Then it's just a matter of registering it with the clerk.
The Chair: Thanks.
On Bill C-27, we have from the Vancouver Police Department, the provincial prostitution unit, Dan Moon, who is senior crown counsel, and Detective Philip Little, who is with the Vancouver vice unit. Welcome.
Detective Philip Little (Vice Unit, Vancouver City Police Department): Thank you and good morning.
I'm in my 23rd year as a police officer. I've been attached to the vice squad in Vancouver for the last three, with a focus on prosecuting pimps and dealing with young children on the street.
This morning I'll take the first portion of the presentation, and then Dan will take over to complete it.
Thank you for the opportunity to address the Standing Committee on Justice and Legal Affairs on the issue of child prostitution in Bill C-27.
The provincial prostitution unit was launched in September 1996 to target pimps and johns, particularly those who sexually exploit youth. The unit has visited communities across B.C. to work with local police and crown and social agencies, to assist in the development of effective enforcement strategies. The communities we have visited are frustrated that the men who buy sex from youth are not being held accountable.
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As a result of policing experience over many years, it is apparent that it is very difficult to get young people to cooperate with the police and give statements regarding johns who purchase or attempt to purchase their sexual services. The reasons for this problem are complex, but include fear of reprisal from the pimp or the john and a general concern because of their involvement in the sex trade and often the abuse of drugs.
The present subsection 212(4) requires that the young person testify against the john. As a result, it is very difficult, to the point of being almost impossible, to get a conviction against johns because of the above-noted problem.
It is believed that if we are to be able to obtain evidence against johns wishing to purchase the sexual services of those under eighteen years of age, the Criminal Code needs to be amended to allow the use of undercover operators to pose as prostitutes under the age of eighteen. These undercover operators could then provide the evidence against the johns as they presently do under section 213. The proposed amendments to subsection 212(4) and the addition of proposed section 212(5) under Bill C-27 are an improvement in that they allow the use of an undercover operator who can represent himself or herself to the accused as being under the age of eighteen.
Mr. Dan Moon (Crown Counsel, Provincial Prostitution Unit, British Columbia): First of all, that is the problem. Bill C-27 does address the ability or the opportunity at least to use an undercover officer, as Phil has already pointed out and as you are well aware.
What we, as the prostitution unit, have looked at are some potential difficulties with Bill C-27 as it is presently proposed. The first one is that the accused is required to believe that this person is under eighteen years of age - that is, the prostitute, typically a young woman although sometimes a young boy.
In B.C. we expect it's going to be difficult to get a conviction when it's required that the Crown prove beyond a reasonable doubt that the person actually believed this young person was under eighteen. It's anticipated that in almost every case the accused john is going to take the stand and raise a reasonable doubt as to whether or not he really did believe. This would especially be the case if we're talking about situations where we're using an undercover officer.
That problem goes into the next problem I've outlined. With proposed subsection 212(5), as it's presently proposed, there is a deeming provision. We in B.C. are concerned about whether or not that's going to be able to withstand a constitutional challenge. The main reason is that in order for that provision to withstand legal argument, we're going to have to convince a court that a provision that deems belief in the mind of the accused in a set of circumstances that isn't really true, isn't really the case, is going to be okay.
What I'm talking about is if you have an undercover woman police officer who's twenty years old. Throughout the course of conversation with the john, she says to him something to the effect, you realize I'm only sixteen. According to proposed subsection 212(5) the way it's presently worded, that deems his knowledge and belief that she's actually under eighteen. We're concerned that this isn't going to fly. How can we deem that he believes something when it isn't even really the case?
To be quite frank, with the third problem I've outlined, I've had a chance to think about it since we did it. I'm not quite as concerned about it, but I'll point it out for those who are thinking about whether there needs to be any change to Bill C-27, just as something to consider.
Presently under subsection 212(4), the charge is obtaining or attempting to obtain the services of somebody under eighteen. Typically what will happen is that the john will get up and say, I didn't know she was under eighteen. However, with the wording the way it is right now, all the Crown has to prove beyond a reasonable doubt is that he knew or ought to have known.
You can prove the ``ought to have known'' by various other factors: how she looked, the stroll or the area in which she was working, whether that's typically frequented by young people - and expert witnesses can testify as to whether or not that's typically where young people work - and other factors that are obvious to you. So we can try to prove that he knew or ought to have known.
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With the addition of the word ``believes'' in there, I'm not too concerned because it says ``under the age of eighteen years or who that person believes is under the age of eighteen years.'' So the way proposed subsection 212(5) is written is not too much of a problem, from this point of view. With the addition of ``believes'', it is cause for some concern, but the main two concerns we have are the first two I outlined.
As a result of that, we're concerned from a practical point of view about whether we're going to be able to get convictions based on the wording of Bill C-27. We are therefore proposing new wording for subsection 212(4). Firstly, ``obtaining''. We propose a paragraph 212(4)(a), to be worded:
- (4) Every person commits an offence, who, in any place,
That's very clear. It's the actual obtaining of the services, and it's definitely of somebody under eighteen.
We propose that paragraph 212(4)(b) would state:
(b) in any manner communicates or attempts to communicate with any person for the purposes of obtaining for consideration the sexual services of a person under the ageof 18 years.
Thirdly, (c) is essentially the same as (b), with the addition of the words at the end ``sexual services of a person who holds himself or herself out to be under 18 years of age.''
Our proposed paragraph 212(4)(c) allows for the use of an undercover operator, which we think is essential because of all the problems Detective Little has spoken about. It's very difficult because of threats and intimidation to get the actual under-eighteen-year-olds to testify.
We're proposing that anyone who is found guilty of actually obtaining the services of someone under eighteen - that's when a real prostitute, a victim, an under-eighteen-year-old off the street comes in and testifies to the police that someone has actually obtained the services - that this be a strictly indictable offence. We're proposing also that the other two paragraphs, (b) and (c), be either summary or indictable, at the discretion of the police or the Crown.
Some advantages to this proposal are that, firstly, it creates a separate and more onerous penalty for those convicted of actually obtaining the services. We regard that as very serious, actually having had some sort of sexual contact with an under-eighteen-year-old.
Secondly, it creates the offence of communicating for the purpose of obtaining these services. We say that because if you'll remember, the present wording is ``obtains or attempts to obtain''. ``Communicating'' is contained in section 213, which is just, if I can call it that, the ``soliciting'' charges under the code - the typical one, the one that has withstood court challenges, given the problems of street traffic, neighbourhood problems, that kind of thing. It's been upheld.
What we're suggesting - and this is the third advantage.... The existing wording in the code is ``obtains or attempts to obtain''. The wording in Bill C-27 is ``obtains or attempts to obtain''. We're concerned that if this passes and ``communicating'' isn't there, there will be a successful argument that the mere conversation between the john and the girl or the undercover officer will be found to be mere preparation to commit an offence, as opposed to an attempt to obtain the services.
There is in law, under the law of ``attempt'', that if someone is doing something that is deemed to be mere preparation, it doesn't amount to ``attempt'' yet. When we look at what ``attempting to obtain'' the services of someone really amounts to, in our respectful view it is usually just communicating in one fashion or another, either verbally, in writing, by signalling, or what have you, out on the street. We are of the view that we have a much better opportunity of obtaining a conviction if the code says ``communicating'' rather than ``attempting to obtain'', to get around the argument of the communication being mere preparation.
The fourth advantage is that it allows the use of an undercover operator, we don't have to prove actual belief, and it allows the use of a third-party witness.
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A few moments ago, Detective Little advised you that we've had older prostitutes say they've had johns ask them where they can get a twelve- or thirteen-year-old. If we look at the new proposed paragraph 212(4)(b) in our submission here, it would allow the use of that older prostitute in court. They've told the detectives that they're prepared to come and testify in court that this john tried to get the services of a young person. This would allow the use of that third person, because it says ``communicates...with any person'' to try to get the services of an under-eighteen-year-old.
Finally, although we appreciate that the proposals in Bill C-27 recognize the need for the use of an undercover operator, we are concerned that if it is passed as presently worded, from a very practical point of view it's going to be difficult to get convictions on it.
The last thing we want to comment on is proposed subsection 486(2.1). These are very good amendments. These amendments in Bill C-27 allow a witness, as opposed to only a complainant, as well as witnesses and complainants in other charges that are prostitution-related, if a court sees fit, to testify from behind a screen or through the use of a TV monitor or some other method. We applaud those. They're really good amendments.
The only thing we're pointing out is that we consider adding in there that a reason for allowing them to do that.... Right now it says they're under eighteen or else have mental or physical disability. Those are the only three criteria a court looks at. Because of the incredible amount of threatening intimidation that goes on in these kinds of offences, we're asking that it be considered to include a reason in there for allowing this type of testimony to be accepted if the court concludes that the complainant or witness may have difficulty communicating the evidence due to fear or fright.
If you look under subsection 486(2), for the administration of justice, there has been acase - R. v. Quesnel, 1979 - where they say that could be a reason for the administration of justice. But here, allowing the use of screens or out-of-court testimony, I think we need something more than just under eighteen or physical or mental disability.
Thank you.
The Chair: Mr. Langlois, do you want to go first?
[Translation]
Mr. Langlois (Bellechasse): I am not the real expert on this committee. I have other concerns due to my interest in the Elections Act.
At first sight, it seems to me that the sexual tourism offences are more declaratory than anything else; I don't think they can really help to enforce criminal law since it will certainly be very difficult - if not impossible - to make a case, if only because of the costs.
We're cutting everywhere in the administration of justice. Are we going to bring in witnesses from outside the country? How can we administer justice when youth prostitution is tolerated in many countries? I wonder what resources we would have. Even if our police forces and our Crown attorneys had access to that tool, how could they use it?
I understand it is a logical consequence, among other things, of some of the elements included in the preamble. When you have such a long preamble, you have more harness than horse, as we say in my riding. I'm afraid the enforcement clauses themselves are only wishful thinking. It's sometimes important to wish when there's nothing else you can do. But I don't want you to think that I don't find that situation very disturbing.
My other comments are along the same line as what you have said about evidence taking. Some clauses would have been challenged constitutionally, whichever way they were written. When you have no other argument in Canada, you challenge the constitutional validity of clauses under the Charter.
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Whether we like it or not, those clauses will eventually be submitted again to the Charter test. It might be interesting to rewrite the act in the sense you are suggesting. In some cases, it is difficult - to say the least - to know if our premises will be accepted or not by the Supreme Court which, in the Oakes case, ruled that what is acceptable in a democratic society is an evolutionary criterion; it is not written in stone.
I think that Canadian society is certainly not very tolerant about child prostitution, and it shouldn't be.
I also think that the Parliament of Canada, maybe before the end of this Parliament, should proceed to an in-depth study of prostitution in general. Prostitution is not illegal per se for people over eighteen; it's not illegal to sell your body. But everything surrounding the prostitution phenomenon is illegal, for instance keeping a common bawdy-house, procuring and living on the avails of prostitution.
It might be better if we had regulation instead of prohibition more attuned to the Jansenist way of thinking that to our modern moral standards. It might be preferable if we used other methods to control that trade, which is said to be the oldest in the world, instead of completely prohibiting it. In any case, prohibition is absolutely inefficient since, when we close brothels somewhere, two or three more open elsewhere. There will always be people who want to live off prostitution.
It is those sex traders I object to. I don't really mind if a woman wants to sell her body to live, but I find it very difficult to accept when a pimp controls other people and lives off their sexual activities. The Parliament of Canada should reexamine that issue in light of what is going on now and ask Canadians what they would like in that regard.
Those are my comments. I want to thank you very much for the clarifications you made about the degree of evidence and the way to obtain it. Your comments can only help the drafting officers and the minister in case the bill has to be modified.
[English]
The Vice-Chair (Ms Torsney): Mr. Moon or Mr. Little, would you like to comment?
Mr. Moon: First, with respect to your questions about the resources that are going to be required to prosecute out-of-country incidents, let's be frank: yes, it's going to cost money if we're going to do it. As a crown prosecutor I obviously don't know whether or not resources are readily available.
Having said that, right now there is not a method of prosecuting serious incidents contemplated by this legislation. At least if this legislation is passed, there will be an ability to do that. If it's a serious case - and I'm not saying even minor ones are not serious; I'm talking about an obviously significant, serious case - it may well be that the resources are going to be made available because it has to be dealt with. I can't imagine the evidence being brought into court in any other way than having witnesses come to Canada and testify.
Having said that, the police may well have abilities if, for instance, they have some knowledge that there may be a ring of people from Canada involved out of the country, and an individual or a group of individuals who might be going to certain places. It may well be that an officer leaving this country would be a significant witness and would be able to be in that other country, and we might be able to get a significant amount of evidence just from that police witness. Of course, we'd have to bring back some other witnesses. I don't see any way around it. Again, for serious cases it's probably worth it.
Det Little: In terms of international cases, if you want to put it that way, we currently have a pimp in jail in Hawaii serving thirteen and a half years. It was an investigation conducted by the FBI, the Vancouver Police Department and U.S. immigration authorities. In conjunction with the U.S. attorneys, we were able to have him charged in that country. That was under their existing statutes.
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We've been able to do that in Seattle also. I'm going down to Seattle on December 6; there's another pimp being sentenced down there. That case involved a young girl being brought from the Vancouver area down to Seattle, back to Toronto and down to Las Vegas.
Whether or not the resources are there is something I can't answer, but if the cooperation is there I can see how this will work. I think there is the political will, especially when it comes to youth and how youth are being exploited across this country.
We have a lot of interest right now, for example, in the various strolls in.... I don't know if you've been to Waikiki recently. I was over there with my family this summer and I recognized many individuals in certain areas of town. Some of those young girls are from Vancouver. So I don't think it's beyond the realm of possibility that you will see a U.S.-Canadian case in the foreseeable future.
In terms of some of your other comments, generally my focus has been on the exploitation of youth, and that's where our real concern is. In our travels around the province, what we hear from six different regions of B.C. is that there are young children out there in the twelve- to fifteen-year age range who are being purchased for the purposes of sex.
Up to this point subsection 212(4) hasn't.... It's not that we haven't tried to work around it. Perhaps we haven't been creative enough in terms of law enforcement officers, but we need the capacity to at least place an undercover officer out there so that we can target those who target young kids. On any stroll in Vancouver I can point out between six and twelve young girls between twelve and fifteen years on most nights of the week, and there are males who are cruising those areas looking for children of that age. That's the target range I would like to see us work on.
[Translation]
The Vice-Chair (Ms Torsney): Mr. Langlois, you have 40 seconds.
Mr. Langlois: You talked about using human police sources to get evidence. Would you go as far as entrapment? Could police officers use illegal means if they were assured that they wouldn't be prosecuted? I find it hard to imagine that police forces would ask volunteers to get buggered just for the sake of getting evidence.
[English]
Det Little: I'm referring to subsection 212(4) as it exists now. We cannot use an undercover operator because we have very few police officers in Vancouver under the age of 25.
Second, as far as I know, we've never done any pimp operations in western Canada where a police officer takes on the role of a pimp.
Mr. Moon: From my point of view, it is not anticipated that the police or anyone else will be undertaking anything illegal, nor would there be any entrapment.
[Translation]
The Vice-Chair (Ms Torsney): Thank you. Mr. Ramsay, you have 10 minutes.
[English]
Mr. Ramsay: I'm glad to hear from you folks this morning. We understand from some of the reports we've read in papers - or at least from what I have in front of me - that you're having difficulty successfully charging the johns. In eight years apparently eight men have been charged for soliciting or attempting to solicit the services of teenagers under eighteen. That's not a very good record.
This author, Kimberly Daum, did a paper on children and the sex trade for the Downtown Eastside Youth Activities Society. Are you familiar with that? Do you know this Kimberly Daum?
Det Little: I met her on one occasion.
Mr. Ramsay: She says we should be targeting our resources at the johns to dry the market up, and if that happens then of course you'll see fewer teenagers on the street.
I also have problems with this bill. I think it's going in the right direction, and of course the Reform caucus will support this bill when it gets back to the House, but I have concerns about the enforceability of it, not only in what my colleague from the Bloc referred to, but also in this area of belief, which Mr. Moon touched on.
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If the Crown has to prove the state of mind of the john at the time he makes his approach to a teenage prostitute, I don't know how that can be successfully established. If the john says he thought this person was well over the age of eighteen, particularly if it's a police decoy who is over eighteen, I don't know how there can be a successful prosecution.
Mr. Moon, you offered some amendments that you thought might strengthen the hand of the police in this area encompassed in Bill C-27. Is there anything you would recommend that might be outside the scope of Bill C-27 that would arm the authorities with something more significant for dealing with the johns?
Mr. Moon: One of the things we've recommended before is that the wire tap provision could be broadened to include these types of offences as ones in which the interception of communications could be made. The reason for using the wire tap provisions are obvious. If there is a pimping operation that is organized, obviously that would help. The other thing is that it would potentially allow such things as parabolic microphones to be used by police officers to catch these conversations on the street, and other methods of intercepting communications between the johns and people on the street.
Mr. Ramsay: From a prosecutor's point of view, if you were to intercept a john soliciting someone obviously under the age through a parabolic microphone, do you think you could obtain a successful prosecution with nothing more than the age of the prostitute?
Mr. Moon: No, we'd still need the prostitute. The difficulty is that credibility is the key to these things. The john, assuming he takes the stand, in order to defend a charge under these sections is going to say something like he didn't know she was under eighteen, or he was only curious. That's the typical defence right now under section 213, on communicating: I was just asking because I wanted know how much it was going to be; I wasn't really serious.
If we only have the prostitute's word for what went on, it can be difficult sometimes. As Detective Little said, often they're under the influence of drugs at the time, etc. If we have the evidence of the police officer who's intercepted that communication to say what the accused said and the manner in which it was said, that could go a long way toward corroborating the prostitute's evidence and showing the seriousness with which that person was asking, and therefore wasn't just curious. Any words he uttered indicating his belief or desire for someone under eighteen would rebut his defence in court of not knowing. What I'm saying is that the police officer's evidence would be corroborative and very helpful.
Mr. Ramsay: If you had that conversation recorded by a police officer, perhaps with a video, and you had the age, even if the child prostitute were to say she didn't remember what was said, if you could put the date, the time and the request before the court together with the age of the prostitute, would that be enough?
Mr. Moon: I think so. I don't know for sure, but I think it would.
Mr. Ramsay: Detective Little, do you have the resources to do that?
Det Little: You're hitting on some things we have talked about, obviously. Part of this unit we're in now is strategizing around subsection 212(4), and we have some ideas that are consistent with what you're suggesting here. I think we're going to have to make more use of videotaping at the scene.
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Doing a pimp investigation is not easy, and to get the young ladies from the point of disclosure through the Supreme Court, which is anywhere up to two years, is very difficult. But I think if we commit the resources and the creativity to our subsection 212(4) investigations that we do to pimping investigations, we can do it.
I'm talking about Vancouver now, but it's not hard to target a young kid who's probably ready to get out of the trade. We can identify those who are in the trade within a week or a few days.
One thing we're considering is sort of a combined resources team. If we have a psychiatric social worker or a counsellor with us who can help us identify the children, once we detain the accused, we'll have the officers deal with him, and we'll have immediate follow-up with the girl and all the services she needs. We're talking about a safe house, accommodation - all her physical needs have to be taken care of. If we can guarantee that we don't drop the victims after our initial contact, I think we're going to have more success.
That's with the legislation the way it stands now. I think the province's position is that Bill C-27 is going in the right direction. We can work with it, but we would like to see a few changes to make it a little easier.
Mr. Ramsay: Do you agree with Kimberly Daum that perhaps the most successful approach to child prostitution is going after those who pay them, who create the motivation for them to be on the street? I'm sure that all areas of the child prostitution scene must be attacked, but do you think it would be a discouragement if you were successful in this area?
Det Little: Yes. I'm speaking on behalf of the chief now in terms of charging the women who, in my mind and most people's minds, are victims. Our focus since 1989 in the vice squad, as far as the detectives go, has been charging pimps. It's a resource thing and a time thing; I don't want to give you 100 excuses, but that's the way it is. On a busy night now we have stabbings, shootings and armed robberies, but we have to get the message across that it's not acceptable to drive by a thirteen-year-old girl selling herself on the corner on the way to a break-and-entry call down the street.
So you're absolutely right. I think there has to be consistent enforcement of the johns, and apprehension and taking charge of the young girls. I would say that pimps and johns have to be the focus. If we can work on that, we're not going to dry up the sex trade, but I think it will make the difference in the young kids out on the street.
Mr. Ramsay: We had two former prostitutes here before the committee, and they were child prostitutes. They indicated that some of the johns are the pillars of society. Given these powers and the resources.... First of all, do you agree with that? Second, if that's true, can you handle it?
Det Little: There's not too much I haven't seen in 23 years.
It's interesting because we're getting some really creative ideas in our consultations around the province. One of them is charging the johns, but what are we going to do in terms of educating them? In some areas of Vancouver - I have to be careful saying this - there are cultural reasons for certain things. There are expectations in some communities that aren't the case in Canada. It's not good enough just to charge them; we have to deal with the educational component too. So how do we deal with that?
From my three years in vice it's obvious that it is males predominantly. They're not all in powerful positions, but they cover the whole spectrum of the community. So I wouldn't necessarily agree that the focus should just be on certain males in certain professions. In certain areas of Vancouver, for example, on a hockey or football night, if you go down some of those streets it's just your average blue-collar worker who on the way home decides to take a tour down a different street for a specific purpose.
So in my experience it covers the whole spectrum. From a law enforcement, Crown and moral responsibility point of view, I don't see any difficulty with that.
The Chair: Mr. Telegdi.
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Mr. Telegdi (Waterloo): The suggestions you made in your proposed paragraphs 212(4)(a), (b) and (c) seem to be more practical than the ones we got from the Justice lawyers who were before us. I guess they are more practical because you are practising in the field of prosecuting and catching. That's certainly refreshing.
Detective, you mentioned that in Vancouver you have twelve- to fifteen-year-olds who are prostitutes and you are targeting that group. What numbers are we talking about?
Det Little: I could get myself in trouble here. It's very difficult because a lot of them are transients. If I get tied up in an investigation...there are six of us who do investigations all over the province of British Columbia. I haven't been down to the stroll in Vancouver for three weeks now, but when I am there, I can say definitively that in the last three years there has been an increase of at least 100% of young kids in the street.
It's not unusual to have anywhere from a dozen to two dozen. That's not necessarily on the street, because if they're not on the street corner they could still be involved in the sex trade out of a bawdy house, which in Vancouver we now call health enhancement centres. You can go get yourself a massage - it's basically a massage parlour - but now they're health enhancement centres, so they have to pay $77 a year instead of $5,898.
So there are different venues, but in my experience the younger kids are generally out on the street. I would say there's at least a dozen or two dozen in the city of Vancouver, out of a population of some 525,000 people, who would be out there on any given night.
Mr. Telegdi: I imagine that many of those on the street would come from outside Vancouver, from the reserves.
Det Little: That's right, and that's the intent of this unit. They come from everywhere - Prince George, Kamloops, Kelowna, Calgary, Edmonton, Toronto.
Mr. Telegdi: I'm asking you to give us a guess as to what numbers we might be talking about here. You say a dozen to two dozen.
Det Little: It's difficult because there are a lot of missing kids or kids who are listed on our police system as runaways. There are at least 200 of those around in Vancouver at any given time. You can go to certain areas like Granville Mall, for example, and you probably have a similar area here in Ottawa that's the first area you would go if you wanted to find a missing child.
They aren't necessarily involved in the sex trade, but they may on occasion exchange sex for food and shelter. Does that make them a sex trade worker? I think the best person to ask that question to would be somebody from the ministry, but I'd be quite comfortable in saying there's 150 to 200.
Mr. Telegdi: How many convictions have we had in the last number of years, and what was the youngest one you had a conviction on?
Det Little: Are you talking about pimping investigations?
Mr. Telegdi: Or johns.
Det Little: Dan and I were down with the prosecutor on one case, and she was twelve and a half. We got a call to the Richmond RCMP. She was impregnated by...we don't who, one of her johns. The accused was in his thirties, wasn't he?
Mr. Moon: He was in his thirties. He found her originally through babysitting. She wasn't on the street as a prostitute.
Mr. Telegdi: So you got one who was twelve years old.
Det Little: The vice squad in Vancouver charged 55 pimps in 1995. Of the victims, 70% were under the age of sixteen. That doesn't mean....
Your question is sort of double-edged. That's our focus. There are a lot of other women over eighteen who are on the street being pimped, but because of time constraints or resources, our only concentration is the younger ones. In terms of the overall proportion, I think it's pretty low. I would say that 5% to 6% of the prostitutes are under eighteen, somewhere in that range.
Mr. Telegdi: So you're saying that the number we're apprehending right now is fairly small. Let's say you're observing a situation and you know somebody's a child prostitute. You see contact made, some weird activity going on. If they go off together, couldn't you follow them and catch them in the preparation of the act or whatever, and be able to charge them right away?
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Mr. Little: Dan can back me up on this one. If we see a young prostitute getting into a car with generally an older male, we'll stop the car, obviously. I've always taken the position on our vice squad that you can't allow a child to be sexually exploited in front of you in order to try to use her evidence against the bad guy.
That's the concern we have. We have people down there who will rape them, who will slash them. If we know it's a young child, we'll move in fairly quickly to protect the child. If we wait too long and watch the act...I don't feel particularly comfortable with that.
Mr. Telegdi: Let's go to another scenario. You said there are some massage parlours, houses, what have you. When you raid those places and you find kids, doesn't that give you good grounds for a charge?
Mr. Moon: It depends. Right now we need the evidence of the underage person. There are municipal by-law considerations; we're not talking about criminal law. There may well be activity that isn't contemplated by the municipal by-law. But forgetting that, from a criminal charge point of view, the charges are obtaining or attempting to obtain sexual services of somebody under eighteen. We need to prove that's in fact what is happening.
It isn't going to happen just by a police officer walking into a business establishment. It's one of the reasons the first scenario is not atypical whatsoever. But it's one of the reasons we're proposing that ``communicating'' be used in the provision rather than just ``attempting to obtain''. It's another reason why I said earlier that it would be nice to be able to have the wire tap provisions in the code changed to include these types of offences. If we can even get the communication there, the police don't have to wait that long then. The communication is the offence, not the attempting to obtain.
There aren't clear-cut answers to your second scenario. If we had the witness, if the young person would say, I'm ready to go home now, please help me, that type of thing - great. As long as we can get them to court months down the road, then we'll generally get a conviction.
Mr. Telegdi: As I said, I liked your suggestions better than the ones we had from the justice department in terms of the legislation.
There was a case in Thunder Bay where a crown attorney was found guilty. I'm trying to remember how the evidence was obtained against him. Was it the people testifying?
Mr. Moon: That's right.
Mr. Telegdi: Thank you.
The Chair: You will recall that when that section ``communicating for the purpose'' came in, all hell broke loose with crowns and police officers and defence lawyers on how they were ever going to prove this. There are lots of ways to measure the success of a section of the Criminal Code, but it turned out to be a good tool for being able to prove your case from a crown's point of view.
Just anecdotally, about five years ago I spent a morning in remand court in Windsor as a crown, and we did 25 johns in a row. They had all been picked up the night before and they were just mortified at being in public. As you say, when you have the communicating offence, especially with kids, at least for that moment and that time you're stopping the dance, you're stopping the activity.
I'll never forget it. They were from all different parts of the community, and they all lined up and we knocked off those guilty pleas. We had to bring a judge in from another courtroom for an hour while we did them. I just lined them up, one at a time, across the front of the courtroom. We did 25 of them, all with the same woman, all on the same night.
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Nobody really wanted to say anything to the judge, who is still sitting in Windsor. He's quite a skilful judge. After about the ninth one, I will never forget that this young man came up and muttered something about his wife having just had a baby. The judge asked him how old he was. He was in his twenties or early thirties. The judge asked him if he'd heard how many men had been with this woman.
In this case the acts had been completed, because now that I think about it, it wasn't communicating; they were catching them in the act.
It was courtroom drama. I don't recall seeing any of these johns back afterwards, and I was still around that courtroom a long time after that happened.
The communicating section makes it quite easy. Without being unfair to anyone, it makes it easier for crowns to prosecute and for police to conduct a sweep of an area. In terms of social control and that sort of thing, it works well. That's just my little editorial comment. Perhaps you might want to comment on that.
Mr. Moon: May I just comment on two areas. The first one, before I forget, is that by including communicating in proposed subsection 212(4) and making it summary indictable, we do have the option then of charging summarily. Right now under section 212, it's strictly indictable, which means that it may end up going through a preliminary inquiry and a Supreme Court trial. This drags out the period of time over which we have to have this witness. If we can go summarily in some of these cases where it's appropriate to do so, we can do it just in a provincial court trial and get it over with a lot faster. It's easier on the young person.
This is anecdotal so far. Although we've probably always had and will continue to have men who particularly seek out young people for these services, there is a growing concern that there's going to be a greater demand for young children. This is because of the problems with STDs and disease generally, and the perception by men looking for sexual services that the younger they are, the less exposure they've had. They wouldn't necessarily want a young person because of the age, but because of the perceived lesser risk of disease. It's another reason we need to be very concerned about concentrating on these pimps and johns who are dealing with young people, because the demand may well increase.
The Chair: My last editorial comment is that it's very nice to have a provincial crown here. We don't get very many. I think their bosses discourage them from coming to see us because they don't have a formal policy role in the ministries. But it's a wealth of experience that we miss out on as a committee.
Mr. Ramsay.
Mr. Ramsay: On this whole business of making it an offence to communicate, at present there are laws against making statements in airports. It sounds to me as if it would be constitutionally sound if we were to proceed this way. I hope an appropriate amendment will be made to this bill from the government side to follow on your recommendation. When it comes from this side it has less chance of succeeding, so perhaps we would communicate with my colleagues on the other side about the possibility of this, and perhaps with the justice minister himself.
You used the term ``STD''. What does that mean?
Mr. Moon: Sexually transmitted diseases.
Mr. Ramsay: That's everything.
The Chair: I'd be happy to recognize you, Ms Torsney.
Ms Torsney (Burlington): On that very point, it's really critical for those who are paying attention to these hearings to know that they are absolutely wrong in their assumption that younger children are less likely to be infected. In fact, they are more likely to be infected because they are easier to infect and less powerful in trying to demand condoms and other things. They are more likely to be at risk, and it's quite shocking how this myth keeps going on and how it's all around the world. It goes back to the industrial age when they used to think the way to get rid of STDs was to have sex with a virgin.
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Before you go, we've been hearing a lot, particularly from Mr. Ramsay, about the conviction rate in B.C. versus other provinces, and a reference to a report about this. I wonder, Mr. Ramsay, if we can have a copy of that.
Mr. Ramsay: Yes.
The Chair: Thank you, I appreciate that.
Ms Torsney: I'm not sure if it was really expanded upon, but are the numbers correct? Have you really only had eight people in the last eight years convicted of having sex with a teenager?
Mr. Moon: I don't know, frankly. I know that report came out from Kimberly Daum probably in September. I'm not sure of the statistics, frankly.
Ms Torsney: Have you prosecuted more than eight people in the last eight years?
Mr. Moon: No.
Det Little: I think she's fairly accurate in that. We've charged with subsection 212(4), and there was a recent acquittal on all three counts in one.
Mr. Moon: It's not as if there haven't been charges. I don't know whether she's talking about charges or convictions, but I know of just one recently where a person from out of the country was charged with coming to Vancouver and having sex with an under-eighteen-year-old as well as taking videos of the pornography, and he wasn't convicted.
Ms Torsney: I think the impression has been left that you guys aren't taking this seriously in that you could be doing more, and that there needs to be political will or whatever to deal with this situation.
Mr. Moon: There may well be that perception. One of the things B.C. has done is to start this provincial prostitution unit that Phil and I are on. There's another detective and there's soon to be an RCMP officer appointed to it, as well as the coordinator.
Our whole role is to deal with these problems all around the province, to be there as resources. In the case of Detective Little and his partners, because of the wealth of experience they've had, they are resource people for the police around the province who haven't had the experience investigating this. My role is to act as a resource person for crowns around the province and to help focus, I suppose, the attention on the problem around the province.
I don't think it would be fair to say that those involved haven't taken it seriously, but I would say that probably there could have been more activity in the area in an effort to get more convictions.
Ms Torsney: Detective Little, you said that 5% of the prostitutes in Vancouver, in your estimation, are youths. That is 5% of what? How many? I mean, 5% of five isn't such a big number.
Det Little: I was waiting for that question. I don't think we have a handle on how many there really are. We can tell you, for example, that social escorts in Vancouver have to be licensed under the by-laws, so I would say there are upwards of 1,000 sex trade workers in the city of Vancouver. I'm talking about health enhancement centres, social escort services, bawdy houses, and the sex trade workers who work on the streets. On the streets themselves, you can have 75 to 100 in one evening, if you go around the city.
Ms Torsney: Kids or adults?
Det Little: It's a mixture. Out of that, I would say 5% or 7% would be young people under the age of eighteen.
If I could comment briefly on your previous comment, I can see that perception, but I have to also back it up by saying that per capita, for a small police force vice section, we've been very successful in dealing with young victims who are victimized by pimps. All our resources have been focused on that particular area.
Each child who discloses to us and wants to sign on her pimp, for example, has usually been victimized by sometimes hundreds of males. To put that child through separate trials for each subsection 212(4) communication offence means you're going to lose your victim. It's not that it hasn't been considered.
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We have numerous charges we charge them with, such as procuring, living on the avails, sexual assault, rape and extortion, but then to make that child go through subsequent trials.... Sometimes there are four or five johns we could identify, and generally their response is no, I've given evidence at the preliminary hearing; I just want to make it through to Supreme Court and I don't.... There are other ways we deal with those johns without charging them.
I'm not saying that's the right way to do it. I agree with you 100% that we do have to get more aggressive with subsection 212(4).
Ms Torsney: If your numbers are that there are 100 people working the streets tonight in Vancouver, and 5% are kids, then that's five kids who are working tonight. The impression has been left by talking to people, particularly the sex trade workers, that there are a lot more kids out there than five.
Det Little: Yes. I don't have accurate numbers.
Ms Torsney: But you just -
Det Little: It's 5% to 10%. It's very unlikely that you'd go to a corner in Vancouver and find ten young kids, twelve or thirteen years old, out selling themselves, but some nights you can go out there and find three or four. Some nights you can go out there and find half a dozen, and occasionally you find ten, eleven, twelve. That's from my perspective. The law enforcement perspective is not always accurate in terms of the actual numbers out there, and obviously you're hearing that from other people.
Ms Torsney: The goal is for your people not to find them.
Det Little: Yes, that's right. I don't know - is one acceptable? I don't think so.
Ms Torsney: No, but we have that impression.
Det Little: I don't know what they're saying to you, but there are not 50 to 100 kids in the city of Vancouver out on the corner selling themselves every night.
Ms Torsney: Thank God.
Mr. Moon: What we are finding, however, going around the province, is that a lot of the street workers, outreach workers, reconnect people, people who are dealing with them in a less authoritative relationship, think that there are quite a few out there who are more casual in selling sex in return for drugs, food, clothing, shelter. As Phil alluded to before, it's difficult to know. They think there are lots of them, and they are dealing with them, they say, on a regular basis.
Ms Torsney: Yes. Just in Vancouver and Victoria alone, I think there seems to be a more exacerbated problem because they are the bigger cities.
My final comment is that when we're talking about the Young Offenders Act, maybe the board of trade, since they're very concerned about property crime and juvenile crime in Vancouver, should be working in concert with you to start an anti-prostitution campaign. The profile of users is very similar to some of the profiles in general of the people who would make up their membership. Maybe we need to be a little more forward in trying to deal with this problem and identify that it's a sexual exploitation issue and it is about sexually transmitted diseases as well. Shaughnessy's example of a guy bringing home potential illness to his entire family is just shocking.
The Chair: It's okay. Just don't call me Madam Chairman.
Mr. Maloney.
Mr. Maloney (Erie): Are drugs, food and shelter perceived as ``consideration''?
Mr. Moon: Yes.
Mr. Maloney: Would it be better to have ``consideration'' removed altogether?
Mr. Moon: No.
Mr. Maloney: You want ``consideration'' in there?
Mr. Moon: Yes.
Mr. Maloney: Why?
Mr. Moon: If you take out ``for consideration'', first of all, it isn't prostitution anymore. But what it really amounts to when you take out the term ``for consideration'' - and I'm not saying this is good or bad - the effect will be that you then change the age of consent sex up to eighteen. It's presently fourteen. Lots of people think it should be sixteen, and others think it should be eighteen.
If you take out ``for consideration'', all it means is that they're having sex with somebody under eighteen. Right now, if they did that without consent, regardless of the age of the person, they would be subject to a charge of sexual assault. Right now, if a person just has sex with a person between fourteen and eighteen, there's nothing wrong with that according to the law and the Criminal Code. What is contrary to the law is to have sex ``for consideration'', in other words the exploitive aspect of this.
Mr. Maloney: If I can recap an aspect of your testimony, you have had few convictions of johns with youth prostitutes, and you've had a few more convictions that you have been successful on. Proposed subsections 212(4) and (5) help, but not overly. It's still a growing problem, with the potential to be even more serious. These proposed subsections really don't plug the hole or bring us along, and you feel your new proposals would do the trick.
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Mr. Moon: We feel our proposals would be better, for the reasons I stated. Nothing's going to be perfect. Ours are not perfect.
Mr. Ramsay - I made a note here at one point - said something to the effect of proving the state of mind. I don't want the committee to be misled by us in any respect as far as proving the state of mind is concerned. Right now as it's worded, and right now as Bill C-27 is proposed, we're still going to have to propose a state of mind. I'll come to that in a second.
As we do in criminal law generally, we often have to prove intent in various offences. Where it says in the existing code ``obtains or attempts to obtain'' under the age of eighteen, an element of that offence is that the person knew or ought to have known they were eighteen. So an essence of the state of mind still has to be proved.
Our proposal isn't going to change that, but it does allow - we think, at least - for an easier prosecution. It says ``communicating'' and it doesn't have the word ``believe''. It allows for the use of a undercover officer, which Bill C-27 does as well, but Bill C-27 deems a state of mind of believing by the use of the undercover operator. We don't feel that's going to be successful, whereas you don't need that in our proposal.
Mr. Maloney: What will communicating be - just saying hello? That's one absurd example. At what point are we over the line?
Mr. Moon: In B.C. we don't approve a charge unless there's a substantial likelihood of conviction. I think that's generally the test across the country. We aren't going to charge somebody unless we think what they've done really is going to amount to communicating for the purpose.
Again, I don't want to mislead the committee. If you look at section 213, in general terms what we're proposing here is in a sense encompassed in section 213 already, the regular soliciting one. What we're getting at is that because section 212 already deals with people under eighteen, we think the communicating aspect should go into section 212 in order to get convictions more easily.
The reason for that, without getting overly legalistic, is that you have ``obtains or attempts to obtain''. In our view, virtually every attempting to obtain only amounts to communication. But if the words about attempting remain in the charge, you're going to be faced with the potential argument, the likely argument, that it's mere preparation. So let's call a spade a spade: they're communicating. Let's put it into subsection 212(4).
The Chair: Mr. Telegdi, one last question.
Mr. Telegdi: What kind of profile does your unit have in B.C.? Is it a pretty high profile?
Det Little: It's becoming that way. Most of the cases we deal with, the press gets held of, I'd say. In terms of educating the public, which I think is what you're getting at, we don't do enough of it.
Mr. Telegdi: One point I want to make is that if you guys are out there doing your patrols or what have you, and people are aware of it, then you're diverting some folks, preventing some of this.
It has to be tough being a police officer. In some ways, if you don't catch them you're in trouble, but the fact of the matter is, the best policing you can do is to deter crime and stop it from happening. As long as you have a fairly high profile, it's pretty good.
As well, I take it you have pretty good links with social service agencies when you come across kids in need.
Det Little: That's correct.
The Chair: I want to thank you very much. We don't hear from many real crowns, so it's nice to have you here.
Detective Little, thank you as well.
We are adjourned.