Solicitation (s. 213) Charges in Canada: Offences, Defences, Punishments
Table of Contents
- Overview of the Offence
- Solicitation Defences
- Solicitation Punishments
- Frequently Asked Questions
- Published Decisions
What is Solicitation?
Solicitation is covered under s. 213 of the Criminal Code.
In Canada, solicitation refers to the act of trying to stop, impede, and/or communicate with someone in order to offer/sell/provide sexual services. This communication can be in general terms and does not need to describe specific sexual acts or money. The courts rely on the context of the situation in many cases. As well, simply trying to stop a car in traffic or a person on a busy sidewalk in order to offer these services is an offence under s. 213. Importantly, communication to try and obtain sexual services is also an offence. In addition, if you communicate to sell/obtain sexual services near a daycare, school, or playground, you can be charged under s. 213(1.1), even if you do not stop/impede anyone in the process. The courts also tend to take this type of solicitation more seriously.
Solicitation is an offence punishable by summary conviction. While this is less serious than an indictable offence, a summary conviction can still carry with it serious consequences, such as a criminal record or jail time.
Some common examples of solicitation might include:
- Waving down a car on a busy street in order to offer the people inside sexual services for money
- Standing on a street corner and advertising your sexual services for sale
- Mentioning that you are offering sexual services to a pedestrian while standing near school grounds
- Stopping a woman who you think is a prostitute on the street
- Driving up to someone on a sidewalk to discuss buying sexual services
- Asking how much someone charges for sex on the street
The defences available to a solicitation charge will be highly dependent on the individual circumstances of your case. Common defences might include:
- Showing that you had no intention to purchase/sell the sexual services in question
- Any Charter defences
- Showing that the communication was not regarding sexual services
Solicitation is an offence punishable by summary conviction. This means that you could face the following consequences if you are convicted of the offence:
- 2 years less a day in prison
- Up to a $5,000 fine
- Criminal record
- Additional court orders
It is also important to note that there is no mandatory minimum punishment for solicitation, so the consequences you might face will be highly fact-specific.
If you or someone you know has been charged with solicitation under s. 213, or you think you may have done something that can constitute solicitation, the best course of action is to contact an experienced criminal defence lawyer. You can book a free consultation with Oykhman Criminal Defence online or over the phone to get free legal advice.
Overview of the Offence
S. 213 of the Criminal Code states the following:
Stopping or impeding traffic
213 (1) Everyone is guilty of an offence punishable on summary conviction who, in a public place or in any place open to public view, for the purpose of offering, providing or obtaining sexual services for consideration,
(a) stops or attempts to stop any motor vehicle; or
(b) impedes the free flow of pedestrian or vehicular traffic or ingress to or egress from premises adjacent to that place.
(c) [Repealed, 2014, c. 25, s. 15]
Communicating to provide sexual services for consideration
(1.1) Everyone is guilty of an offence punishable on summary conviction who communicates with any person — for the purpose of offering or providing sexual services for consideration — 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.
Note that the wording of s. 213 includes both buying and selling. Additionally, just communicating for the purpose of buying/selling is sufficient for the offence to be met; even if you do not go through with the buying/selling of the sexual services in question, the offence is met.
The Guilty Act (Actus Reus)
The actus reus of solicitation has several components. The Crown must prove, beyond a reasonable doubt, the following:
- That you stopped/impeded or communicated with a person;
- The communication took place in a public place (alternatively, that it took place adjacent to a school, daycare or playground);
- That the purpose of the communication was to buy or sell sexual services.
The Guilty Mind (Mens Rea)
The mens rea of solicitation is a specific intent offence, meaning that the Crown must prove beyond a reasonable doubt that you specifically intended to buy or sell sexual services in your communication. If you were merely engaged in a conversation without realizing the other person was a prostitute, that may not be sufficient intent (see defences below).
As stated above, the defences available to you for a solicitation charge will depend on your specific circumstances. This is why it is important to contact an experienced defence lawyer if you have been charged. However, here are several of the most common solicitation defences:
Lack of Intent
For more detail on how this defence looks in practice, see the case of R v Searle below. In essence, however, with this defence, an accused is arguing that he/she never actually intended to purchase or sell sexual services. Using this defence generally means that communication did take place regarding the buying/selling of sex. You might argue here that you were curious as to what the other person was doing, what they might charge, etc. Importantly, this defence may be unavailable to you if you intended to buy/sell sex but changed your mind during or after the conversation.
Communication not regarding sexual services
In this defence, an accused would argue that while they did communicate with someone, the communications themselves were not specific enough for the court to infer they were about sexual services. This might arise if you had a conversation with a prostitute without knowing they were trying to sell sex, or not realizing it until later in the conversation, at which point you left. Remember, the communication does not need to be exact or explicit: the courts are able to “read between the lines” and infer what you were really talking about.
Charter defences can arise in any type of case. This defence may be available if the police violated any of your legal rights (sections 7 to 14 of the Charter) during the course of their investigation, or of your arrest. If your Charter rights have been breached, the remedy is to have any evidence gathered as a result of the breach to be excluded, under s. 24(2) of the Charter. This defence can be quite complicated, so speak to a lawyer if you feel your Charter rights may have been breached by police.
Solicitation is an offence punishable only by summary conviction in Canada, as opposed to an indictable offence which is more serious. However, just because it is a summary offence, that does not mean that it is not serious. If you are found guilty of solicitation, you could face punishments of up to 2 years less a day in prison and/or up to a $5000 fine. You may also be left with a criminal record, which might affect your ability to gain employment, travel, or any number of other consequences.
However, solicitation does not have any mandatory minimum punishments. This means that the courts and the Crown Prosecutor have some discretion as to how harshly they may punish someone for a solicitation charge. This will in large part depend on the circumstances of the offence, so contact an experienced criminal defence lawyer if you have been charged.
Frequently Asked Questions
What constitutes solicitation?
In Canada, solicitation (s. 213 of the Criminal Code) refers to any attempt to stop, impede, or otherwise communicate with another person in a public place, for the purposes of engaging in prostitution or obtaining sexual services. This communication can be direct, such as openly asking someone if they are selling sexual services, but it does not necessarily need to be explicit. The courts are able to infer based on the context of the communication. For the purposes of solicitation, a public place is any place that a member of the public has access to, be it express or implied. Solicitation also applies to stopping a motor vehicle, as long as that motor vehicle is on a public roadway. S. 213(1.1) makes it a specific offence to engage in solicitation next to a school ground, playground, or daycare centre.
Is solicitation a crime in Canada?
Yes, solicitation is a crime in Canada, under s. 213 of the Criminal Code. However, solicitation refers specifically to the communication aspect of buying/selling sexual services. While public opinion regarding prostitution has started to shift in recent years, it still remains a crime.
Can you go to jail for solicitation?
Yes. As stated above, the maximum punishment for a solicitation conviction might include two years less a day in prison. However, this will depend heavily on the circumstances of the offence itself and might depend on factors such as the nature of the communication, how explicit/specific the communication was, where the communication took place, and to what extent the public was disturbed/impeded.
Note: The section numbering for solicitation in the Criminal Code changed after an important Supreme Court decision called Bedford. Bedford changed much of the law surrounding prostitution and sex offences, but solicitation was mostly unaffected. Many of these cases refer to s. 213(1)(c), which is essentially the same as the new s. 213.
R v Lawrence, 2002 ABPC 189
In this case, an undercover CPS officer drives down a street in downtown Calgary where prostitutes are known to work. He drives up to one (the accused) and they have a conversation regarding the sale of sexual services. Of importance in this case is that the two never discussed specific sexual services, nor did they arrange a specific time and place for the exchange to occur. Instead, they spoke in more general terms, but the court found that the two were clearly discussing the sale of sexual services. The judge found that this was sufficient in order for the Crown to have established the elements of the offence, and the accused, Ms. Lawrence, was convicted of solicitation.
As discussed above under the ‘elements’ section, the actus reus of the offence requires that the accused communicate or attempt to communicate for the purpose of prostitution or buying sexual services. This communication does not need to be specific, but the court must be able to infer that the accused was in fact communicating regarding sexual services.
You can read the full decision here.
R v Searle, 1994 CanLII 17533 (NB PC)
In this case, the accused, a man in a car, drives up to an undercover policewoman, who he believes to be a prostitute, in order to ask what he later suggests are a series of hypothetical questions. The two discuss the sale of sexual services and even a price, but at trial, Mr. Searle argues that he was merely curious, and did not actually intend to purchase sexual services. He attempts to demonstrate this by testifying that he did not have any money on him, nor did he attempt to go to the bank after the fact in order to get money.
In the decision, the judge finds that Mr. Searle clearly did not have much in the way of knowledge of the world of prostitution. Indeed, the judge found it quite plausible that Mr. Searle was simply curious and had no intent to actually follow through with his conversation. Thus, the judge found that the mens rea of the offence had not been established by the Crown, and Mr. Searle was found not guilty.
Importantly, however, the judge does also state that even just ‘shopping’ for sexual services would be captured under s. 213, as would someone who is ‘shopping’ and then has a change of heart after the fact.
You can read the full decision here.
R v Hervieux, 2010 ONSC 455
This case is an appeal case from Ontario, where the central question is the credibility of the accused and of the Crown witness, who was an undercover policewoman. There are also some concerns regarding the transcripts from the trial itself, but that issue is not necessarily related to the solicitation offence itself. According to the Crown witness, Mr. Hervieux discussed the purchase of sexual services with the officer, but according to Mr. Hervieux, he was concerned for the officer (believing she was in trouble of some sort), and he was not interested in prostitution. In terms of credibility, the trial judge found the evidence of Mr. Hervieux not to be credible, so it was rejected in part. In the end, the appeals judge entered a conviction, as he found that all of the elements of the offence had been met; there was communication with regard to sexual services, and Mr. Hervieux was found to have the intent to purchase them. Mr. Hervieux tried (and failed) to discredit the police officer, which highlights the importance of hiring an experienced lawyer if you have been charged with an offence such as solicitation.
You can read the full decision here.
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