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Unofficial English Translation[*]Marceau c. R. / 2010 QCCA 1155
COURT OF APPEAL
CANADA
PROVINCE OF QUEBEC
REGISTRY OF / MONTREAL
No. / 500-10-004313-092
(540-36-000495-076)
(M.C. LAVAL 0080292820)
DATE: / June 15, 2010
CORAM: THE HONOURABLE / PIERRE J. DALPHOND, J.A.
ALLAN R. HILTON, J.A.
LISE CÔTÉ, J.A.
ANNIE MARCEAU
NADINE DYELL
CLÉONIE ALEXANDRE
CLAIRE ALEXANDRE
MARIE-YVETTE HONORÉ
MICHEL BERBERRY
NATHALIE ROY
NATACHA BARTHÉLÉMY
DANIEL ÉTHIER
MARLAINE RÉSOLUS
APPELLANTS – Appellants – Accused
v.
HER MAJESTY THE QUEEN
RESPONDENT– Respondent – Prosecutrix
JUDGMENT
[1]THE COURT: On appeal from a judgment of the Superior Court, District of Laval (the Honourable Mr. Justice Richard Mongeau) rendered on January 6, 2009, which dismissed the appellants’ appeal against the guilty verdicts rendered by the Municipal Court of Laval (the Honourable Judge Yves Fournier) that convicted them of having been found in a common bawdy house without lawful excuse (section 210(2)(b) of the Criminal Code);
[2]After having studied the file, heard the parties, and on the whole deliberated;
[3]For the reasons of Hilton J.A., with which Côté J.A. agrees:
[4]DISMISSES the appeal.
[5]For his part, and for other reasons, Dalphond J.A. would have allowed the appeal, set aside the judgments of the Superior Court and Municipal Court of Laval, and ordered a new trial.
PIERRE J. DALPHOND, J.A.ALLAN R. HILTON, J.A.
LISE CÔTÉ, J.A.
Mtre Richard Perras
CORDEAU CLÉMENT & ASSOCIÉS
For the appellants
Mtre Normand Sauvageau
ALLAIRE & ASSOCIÉS
For the respondent
Date of hearing: / February 10, 2010
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REASONS OF HILTON, J.A.[6]The ten appellants were tried and convicted of the offence of having been found in a common bawdyhouse without lawful excuse contrary to paragraph210(2)(b) Cr.C., an offence punishable on summary conviction.[†] The eight female appellants were dancers who offered nude presentations at a bar in Laval known as Lavalois Bar Salon.[‡] One of the male appellants was the doorman at the Bar, while the other was a customer in the premises when the appellants were arrested. The evidence was gathered as the result of a police investigation during which several officers who testified before the trial judge observed the activities described below.
[7]For $10, the female appellants offered to perform private nude dances in cubicles to customers. Several of the police officers who participated in the investigation and who testified before the trial judge were so propositioned. The dancers' offers would mention that the customer could touch the dancer anywhere on her body, but that the dancer would go no further.
[8]The police officers could see the activities that took place in the cubicles from tables in the premises where they sat. In all circumstances the customers remained clothed, and the dancers were completely unclothed, except for a gstring. The police officers observed customers who had accepted the dancers' offers touching or caressing their breasts and buttocks. They also saw dancers rubbing their breasts in the face of customers, as well as sitting on them and engaging in a back and forth movement on their genital area to simulate an act of vaginal penetration. One dancer was seen taking one of her breasts with her hand and bringing it to the mouth of the customer, who simultaneously was caressing the buttocks of the dancer with his right hand for the duration of their time together. Another dancer, with her legs spread apart, straddled a customer while having her breasts and buttocks caressed despite a sign in the cubicle to the effect that [translation] "[I]t is prohibited for dancers to straddle clients”. Another police officer was told, in response to a question he asked a dancer, that while she would not engage in acts of fellatio or intercourse, [translation] "surely other girls do it"
[9]The activities in the cubicle would last for approximately 10minutes. When the dancer emerged, she would give what appeared to be coins or paper money to the doorman.
[10]The elements of the offence with which the appellants were charged require simply that they have been found without lawful excuse in a common bawdy-house. Parliament has defined the latter expression in subsection 197(1)Cr.C, in both official languages, in the following manner:
197.(1)In this Part,"common bawdy-house" means a place that is
(a) kept or occupied, or
(b) resorted to by one or more persons
for the purpose of prostitution or the practice of acts of indecency; / 197.(1)Les définitions qui suivent s’appliquent à la présente partie.
«maison de débauche» Local qui, selon le cas:
a)est tenu ou occupé;
b) est fréquenté par une ou plusieurs personnes,
à des fins de prostitution ou pour la pratique d’actes d’indécence;
[Emphasis added]
[11]At trial in the Municipal Court of Laval, Crown counsel admitted that the acts described above did not constitute "indecency" for the purposes of the prosecution. Rather, Crown counsel characterized the activities as fitting the jurisprudential definition of prostitution.
[12]None of the appellants testified at trial to challenge the accuracy of the testimony of the police officers, nor did they contest that they were present in the Lavalois Bar Salon at the time of their arrest. They also did not dispute that the Bar was a "common bawdy-house" if the premises were being used for the purpose of prostitution when the female appellants offered to and allowed their customers to engage in the activities revealed by the evidence in exchange for a fee of $10. Rather, the appellants argued for an acquittal on the basis that whether or not such activities amounted to prostitution had to be considered with the notion of indecency in mind, as that notion had evolved following the Supreme Court of Canada's judgments in R. v. Labaye[§] and R. v. Kouri.[**]
[13]In the latter two cases, the Court held that the operation of premises where couples and single persons could meet for group sexual activities on payment of a fee did not constitute indecency for the purpose of a prosecution of keeping a common bawdyhouse contrary to subsection210(1)Cr.C. In so doing, the Court developed a twopronged test that is summarized in the majority reasons of McLachlin,C.J. in Labaye as follows:
62Indecent criminal conduct will be established where the Crown proves beyond a reasonable doubt the following two requirements:
1.That, by its nature, the conduct at issue causes harm or presents a significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in and thus formally endorsed through the Constitution or similar fundamental laws by, for example:
(a)confronting members of the public with conduct that significantly interferes with their autonomy and liberty; or
(b)predisposing others to anti-social behaviour; or
(c)physically or psychologically harming persons involved in the conduct, and
2.That the harm or risk of harm is of a degree that is incompatible with the proper functioning of society.
[14]The trial judge rejected the appellants' arguments in the following manner:
[translation]
[101]The notion of prostitution is objective, not evolutive. Let us recall that prostitution does not require sexual intercourse. It is the act of a man or a woman offering his or her body or a part of his or her body for remuneration.
[102]Prostitution is a harmful phenomenon whereby a man, woman, or transvestite offers themselves up for the sexual pleasure of another person, the client, for remuneration.
[103]It is a dehumanizing and degrading activity. It is an assault against human dignity. It must be recognized that all prostitution, even at its smallest scale, is part of a process whereby the prostitute ends up seeing herself or himself as a product and a piece of merchandise, which, undoubtedly, is a form of dehumanization.
[104]Prostitution violates human dignity by warping sexuality and by reducing sexual intimacy to a type of merchandise. It harms its participants physically and emotionally.
[105]Parliament certainly had these concerns in mind, as well as a number of others, when it criminalized prostitution. It may perhaps change its mind one day. The fact remains, however, that the law on prostitution can in no way be analyzed using the approach adopted by the majority of the judges in Labaye.
[106]In Labaye, the Supreme Court pointed out that there was no money payable to any of the participants by anyone at the swingers’ club.
[107]The notion of prostitution contains no subjective factor. The courts have been clear and unequivocal. Either it is prostitution or it is not.
[108]I therefore cannot accept the defence’s submissions.
[15]The appellants appealed to the Superior Court and requested that a new trial be ordered.[††] They invoked several grounds of appeal, but the Superior Court judge noted that the appeal was based principally on the appellants' contention that the trial judge had erred in law by not having applied [translation] "the notion of the community’s tolerance of so-called acts of prostitution, as that applied by higher courts to indecency charges”.[‡‡] He arrived at the same conclusion in law as the trial judge and accordingly dismissed the appeal:
[translation]
[63]To summarize, the Court finds no error of law by the trial judge in his analysis of what constitutes a common bawdy-house, that is, in this case, premises frequented by one or more persons for the purposes of prostitution.
[64]The judge correctly applied well-settled jurisprudence in this area of the law.
[65]The aspects of “frequency” and “continuity” are clearly apparent in the evidence, and the trial judge’s analysis is consistent with the law. There is no error in the interpretation of the evidence in this respect.
[66]As for the trial judge’s conclusions regarding the “acts of prostitution”, they constitute neither errors of law nor an unreasonable interpretation of the evidence.
[67]The judge of the Municipal Court of Laval seems to have perfectly understood the argument of counsel for the accused, who was pleading the notion of “objectively verifiable prejudice”.
[68]The trial judge was correct to distinguish the facts of Labaye, supra, from those adduced before him. His judgment in this respect is beyond reproach.
[69]The Court also cannot fault him for not having accepted the argument of the accused to transpose the notions developed by the majority of the judges in Labaye to a prostitution charge.
[70]The statement in paragraph [99] that:
[t]he notion of prostitution has not changed and cannot change unless Parliament decides otherwise
is certainly not erroneous. It goes without saying that the Court shares this opinion, for the same reasons invoked by the trial judge.
[71]Offering one’s body or a part of one’s body for remuneration is an act that is factually verifiable by the circumstances put into evidence.
[72]It is not an issue to be analyzed on the basis of community tolerance. The act, the action, has been committed. This is what must be demonstrated beyond any reasonable doubt, not the tolerance of the community with regard to the act in question.
[73]Therefore, it is up to Parliament to consider this question, and not up to the courts to render moral judgments on actions that respond to criteria developed by higher courts.
[74]If one day these same courts consider that the notion of community tolerance should apply to so-called acts of prostitution, the lower courts will then adapt accordingly.
[16]In their motion for leave to appeal to this Court, the appellants affirmed that [translation] “The issue both at trial and in the Superior Court was primarily the notion of prostitution in the context of ‘$10 lap dances’” in the Lavalois Bar Salon. The grounds of appeal for which leave to appeal was sought, as amended at the hearing on the leave application, were twofold: that the trial judge and the Superior Court judge had erred in law by holding that the notion of prostitution could not be evolutive and that the criteria of tolerance of the community and harmful effect could not apply to prostitution. The relief claimed in the event their position prevailed was not that this Court quash the convictions and substitute verdicts of acquittal, but rather, that the sentences imposed by the trial judge[§§] be annulled and that a new trial be ordered.
[17]Without expressing an opinion on the appellants' chances of success, Bich,J.A. granted leave to appeal on the basis I have described.
[18]Thus, the only issuein this appeal, as it was in the courts below, is whether the jurisprudential definition of prostitution should be modified to take account of the evolutive approach adopted by the Supreme Court of Canada with respect to the concept of indecency in the context of the statutory definition of "common bawdyhouse".
[19]In essence, the appellants argue in this Court that since prostitution and indecency, neither of which are defined by the Criminal Code, are contained within the same definition of "common bawdyhouse" in subsection197(1)Cr.C., it is appropriate that they be treated in the same manner insofar as their meaning is concerned. Thus, one of the elements necessary to constitute prostitution should consist of an appreciation of the criteria related to indecency, as that concept has been recently interpreted. Since the Crown concedes that the conduct I have described in paragraph[8] is not indecent, such conduct should not be considered as constituting prostitution, with the result that the convictions should be set aside and a new trial ordered.
[20]The appellants' argument, however, ignores the context in which the words "prostitution" and "indecency" are found in subsection197(1)Cr.C. It is apparent that the two concepts address different situations of fact. The occupation of premises that can be considered a commonbawdy house are for "the purpose of prostitution", on the one hand, or, "the practice of acts of indecency". "Purpose" and "practice" are, manifestly, not synonymous concepts.
[21]Prostitution does not require as a component factor the performance of acts that are indecent or harmful, however the jurisprudential definition of indecency may have evolved over the years to take account of changing mores in Canadian society. Moreover, the Supreme Court clearly recognized the distinction between prostitution and indecency in R.v.Tremblay[***]when it reversed a judgment of this Court that had authorized an amendment to a charge under what is now paragraph210(2)(b)Cr.C. to substitute "the practice of prostitution" for "the practice of acts of indecency". On behalf of the majority, Cory,J. held that the trial judge in that case had properly refused the amendment, and there were distinct evidentiary components of prostitution and indecency. Here is what he said:
When the motion for the amendment was brought it was obvious that the appellants had prepared their defence on the basis that the acts performed were not indecent. In light of the wording of the original charge the appellants quite properly prepared their entire defence on this issue. This can be seen from the careful and lengthy testimony provided by the expert witness on this very question. To have permitted the amendment at this stage would have caused irreparable prejudice to the appellants. Perhaps much earlier in the trial proceedings it might have been appropriate to allow the proposed amendment provided an adequate adjournment was granted to the appellants to prepare their defence to meet the amended charges. Undoubtedly, the appellants would have needed time to consider their position and to consult and retain experts with regard to the issue as to whether the acts constituted prostitution. That, of course, is speculation. It is sufficient to say that, in the circumstances of this case, the trial judge was correct in his conclusion that to grant the amendment at this late stage would have caused irreparable prejudice to the appellants.[†††]
[Emphasis added]
[22]As Lamer,J. (as he then was) observed in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.)[‡‡‡] with respect to the definition of prostitution:
It seems to me that there is little dispute as to the basic definition of prostitution, that being the exchange of sexual services of one person in return for payment by another.[§§§]
[23]He then said this concerning the concept of indecency:
In respect of the term "indecency", it and variations of it are used in numerous other sections of the Criminal Code, including those pertaining to immoral, indecent or obscene performances, mailing obscene materials, indecent acts, public decency, and indecent exhibition. The appropriate test to apply in this area is the "community standard of tolerance" similar to the test used in obscenity cases which this and other courts have interpreted and applied without insurmountable difficulty.[****]
[24]Lamer,J. went on to observe that while prostitution is not itself a crime in Canada, Parliament has chosen to attack it indirectly by including other provisions in the Criminal Code that make its practice in a lawful manner problematic.[††††] These include provisions that prohibit transporting a person to a bawdy-house,[‡‡‡‡] procurement and related activities,[§§§§] aiding, abetting or compelling a person, for the purpose of gain, to engage in prostitution,[*****] living wholly or in part on the avails of prostitution of another person,[†††††] doing so in the latter respect with a person under the age of18 (which upon conviction carries a minimum term of imprisonment of2years and a maximum of14ears),[‡‡‡‡‡] and solicitation for the purpose of prostitution.[§§§§§]
[25]It is difficult to conceive that these offences should be made conditional on the application of principles that apply to what constitutes the practice of acts of indecency, which is the logical extension of the appellants' submissions.
[26]Moreover, Parliament has a perfectly legitimate interest in criminalizing certain activities related to prostitution, irrespective of whether or not any sexual conduct that takes place as a result is indecent, for reasons eloquently expressed by Lamer,J. as follows:
In my view part of the legislative objective in enacting s. 195.1(1)(c) is to give law enforcement officials a way of controlling prostitution that occurs in the "street" as it were. It is in the street that many prostitutes begin in the trade as young runaways from home. The streets provide an environment for pimps and procurers to attract adults (usually, as the data shows, women) and adolescents into the trade by befriending them and often offering them shortterm affection and economic assistance. Quite often, it is the young who are most desirable to pimps as they bring in the most money and are the easiest to control. This leads ultimately to a relationship of dependency which is often reinforced by the pimp getting the prostitute addicted to drugs which are used to exercise control over the prostitute. In that process the pimp's control over the prostitute is such that physical violence and in some cases brutality is not uncommon. Prostitution, in short, becomes an activity that is degrading to the individual dignity of the prostitute and which is a vehicle for pimps and customers to exploit the disadvantaged position of women in our society. In this regard the impugned section aims at minimizing the public exposure of this degradation especially to young runaways who seek refuge in the streets of major urban centres, and to those who are exposed to prostitution as a result of the location of their homes and schools in areas frequented by prostitutes and who may be initially attracted to the "glamourous" lifestyle as it is described to them by the pimps. Further, it is not just the exposure to potential entrants into the trade that is of concern to the legislators. An additional aspect of the objective of minimizing public exposure of prostitution, is the fact that many persons who are not interested in prostitution are often propositioned either as prostitutes or prospective customers.[******]