Law Times

PAGE 10 FOCUS Are cops using new provisions to fill prostitution void? Human trafficking islation after a recent explosion in the number of charges laid. Bill C-49 amended the A Toronto criminal law- yer is eyeing a consti- tutional challenge to human trafficking leg- Criminal Code to specifically prohibit human trafficking in November 2005, but Tyler Smith, a partner with Toronto' Adams LLP, have received a whole new lease on life since Ontario Superior Court Justice Susan Himel' says the changes landmark 2010 ruling that struck down key parts of the law related to prostitution. "The changes are not that recent, but it's only recently that s s Hicks 'I think we're going to see that the scope of the sections will continue to broaden as prosecutors continue to have success pros- ecuting these offences,' says Tyler Smith. specialty police divisions, the vice squads, and prostitution teams, are starting to use them," says Smith. "Crowns won't even touch the living-off-the-avails or common bawdy-house charges anymore. Ontario has since upheld most of Himel' The Court of Appeal for s ruling. In March, it " BY MICHAEL McKIERNAN Law Times confirmed her conclusion that provisions outlawing common bawdy houses and living off the avails are unconstitutional. At the same time, third provision struck down by Himel related to communicat- ing for the purposes of prostitu- tion. The province' it reinstated a gave the federal government 12 months to rewrite the law, although its decision will go to the Supreme Court of Canada after the attorneys general of Canada and Ontario appealed. "Police are not s top court around on their hands waiting for a ruling, just sitting using this new tool to go after all sorts of different people. From a law enforcement point of view, because it is so broad they fancy it as a very useful new tool. My fear is that the same people who innocently got pulled into the living-on-avails or bawdy-house type of offences will just get " says Smith. "They're charged with this offence, so it's Bill C-49 added s. 279.01 to the Criminal Code that " that "every person who recruits, transports, says holds, conceals or harbours a person or exercises control, direction or influence over the movements of a person for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence. transfers, receives, Consent isn't a defence, accord- ing to the section. "There' " could behave that would have you falling within this section," says Smith, who notes he' s 10 discrete ways you ing for the right fact situation to launch a constitutional chal- lenge of his own. "The problem I see with these s wait- offences is that they are uncon- stitutionally overbroad. Because Reach one of the largest Canada! legal and business markets in rather meaningless that those other offences have been struck down, in my view. of the way it's drafted, it encom- passes a huge amount of behav- iour that would not otherwise be covered by any other offences." Smith says he' concerned by the term "exploi- tation" that' s particularly offence. He says the word has "not been satisfactorily defined" by an appellate court. Section 279.04 of the Criminal Code, also added by Bill C-49, offers its own definition that Smith says exacerbates the broadness of the legislation. One person exploits another s at the heart of the May 28, 2012 • Law TiMes when they "cause them to pro- vide, or offer to provide, labour or a service by engaging in conduct that, in all the circum- stances, could reasonably be expected to cause the other per- son to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service, according to s. 279.04. A further subsection pro- a human trafficking offence. According to Smith, that sucks in more peripheral players. "If you're a cab driver and you resulted from " hibits a person from benefiting financially while knowing that the money has knowingly transport anyone who is involved in any sort of exploitative endeavour or behav- iour, whether it be labour-related, sexual, perhaps even something like exotic dancing, then you can easily fall within the four corners of this offence, a number of cases in Hamilton, Ont., as well as Peel and York regions whose police forces, in his view, have been particularly prolific and creative with their use of human trafficking charges. Earlier this month, the Smith has been involved in " he says. Toronto Sun reported that the Toronto Police Service is back- ing off its john sweeps involving undercover female officers pos- ing as prostitutes in the wake of the uncertainty created by the prostitution rulings from the Superior Court and the Court of Appeal. In York Region, meanwhile, With more than 250,000 page views a month, canadianlawlist.com captures your market The all-new canadianlawlist.com features: — A fresh new look, designed for improved user experience — Effective new ways to reach the legal market — Gold and silver advertising packages For more information contact: Colleen Austin at 416-649-9327 or toll free at 1-800-387-5351 colleen.austin@thomsonreuters.com www.lawtimesnews.com CLL Web promo - CLL Dir..indd 1 12/8/11 10:58 AM police have taken a different tac- tic by going undercover as poten- tial johns to build rapport with prostitutes and convince them to turn in their pimps. After one such operation, one of Smith' ents found himself facing human trafficking charges. In Hamilton, Smith' s cli- Lajos Domotor received a two- year sentence for his part in a human trafficking scheme that brought in forced labour from Hungary. The case is believed to be one of the first successful pros- ecutions of a non-sexual allega- tion of human trafficking. "I think we're going to see that s client the scope of the sections will con- tinue to broaden as prosecutors continue to have success prose- cuting these offences," he says. LT Online Print and in

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