section 212(3)

INTRODUCTION AND BRIEF DESCRIPTION

Living with or being in the company of a prostitute or in a common bawdy-house is considered proof of living on the avails of prostitution.

SECTION WORDING

212(3) Evidence that a person lives with or is habitually in the company of a prostitute or lives in a common bawdy-house is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution, for the purposes of paragraph (1)(j) and subsections (2) and (2.1).

EXPLANATION

Section 212(3) of the Criminal Code of Canada is a provision that deals with the offense of living on the avails of prostitution. It states that if there is evidence that a person lives with or is habitually in the company of a prostitute, or lives in a common bawdy-house, then in the absence of evidence to the contrary, it is deemed as proof that the person is living on the avails of prostitution. This section is important because it helps to combat the exploitation of sex workers by their associates, particularly those who profit from their work. It is a criminal offense to live on the avails of prostitution in Canada, and it can result in serious penalties, including prison time. The provision is also significant because it shifts the burden of proof onto the accused, who must provide evidence to refute the claim that they are living on the avails of prostitution. This means that if a person is found to be living with or in the company of a prostitute or in a common bawdy-house, they are presumed to be living on the avails of prostitution unless they can prove otherwise. Overall, this provision is part of Canada's efforts to protect its citizens from the negative consequences of prostitution, while also promoting the safety and well-being of sex workers. It is a powerful tool for law enforcement to investigate and prosecute those who profit from the sex trade, and it serves as a warning to those who might seek to exploit vulnerable individuals for their own gain.

COMMENTARY

Section 212(3) of the Criminal Code of Canada is an evidentiary provision that has been heavily criticized for its strict and unfair interpretation of living on the avails of prostitution. The provision essentially creates a presumption that if a person lives with a prostitute, or is habitually in the company of a prostitute, or lives in a common bawdy-house, that person is living on the avails of prostitution. This presumption is rebuttable, but the burden of proof lies on the person who is accused, which is a difficult task given the evidentiary hurdles that have been erected by the courts. The provision was enacted in 1985 as part of a package of reforms to Canada's prostitution laws. The perceived goal of the reforms was to reduce the harm associated with prostitution and to target the exploitative aspects of the industry. However, the reforms ended up having unintended consequences, namely the criminalization of various activities associated with prostitution that did not involve exploitation or harm. Section 212(3) is one such provision that has been used to criminalize innocent conduct and to make it difficult for sex workers to live and work together. The provision has been criticized for several reasons. First, it assumes that people who live with or are in the company of a prostitute are necessarily living off the avails of prostitution. This assumption is flawed because there are many reasons why people might live together, including for support and companionship. Not every person who lives with a sex worker is involved in the industry, and to assume otherwise is to make the incorrect and unfair presumption. Second, the provision makes it difficult for sex workers to live and work together. Sex workers often share living quarters and workspaces for safety reasons, but the provision penalizes anyone who does so. Sex workers who share a common bawdy-house, for example, are presumed to be living off the avails of prostitution, even if they are all independent contractors who are not dependent on each other for financial support. This has the effect of forcing sex workers to work in isolation, which is more dangerous for them and less conducive to their mental health. Third, the provision is hard to rebut. Once the presumption is established, the accused person is required to prove that they are not living off the avails of prostitution. This is a difficult task because there is no definitive way to prove a negative. The person accused would have to show that they are not financially dependent on the sex worker, which can be difficult to do if they are sharing living quarters and expenses. The high evidentiary burden placed on the accused means that innocent people can be convicted simply because they cannot provide sufficient evidence to rebut the presumption. In conclusion, Section 212(3) of the Criminal Code of Canada is a problematic provision that unfairly targets innocent conduct and makes it difficult for sex workers to live and work safely. The provision is based on flawed assumptions and is hard to rebut, which makes it a powerful tool for prosecutors to use against sex workers and their associates. Reforms to Canada's prostitution laws are necessary to address the problems caused by Section 212(3) and to provide sex workers with the legal protection they deserve.

STRATEGY

Section 212(3) of the Criminal Code of Canada is a powerful tool for law enforcement to combat the exploitation of sex workers, particularly when combined with section 212(1)(j) and subsections (2) and (2.1) of the same code. However, this section can also be problematic and unfair for individuals who may be living with or in the company of a sex worker for non-exploitative reasons. One strategic consideration when dealing with section 212(3) is to ensure that the evidence collected is strong and reliable. This means that law enforcement officers must take care to gather evidence that demonstrates a clear and sustained pattern of living with or being in the company of a sex worker. This evidence should be corroborated by multiple sources whenever possible to ensure its reliability. Another important consideration is to ensure that individuals who are being investigated for living on the avails of prostitution are given fair and transparent due process. This means that they must be given the opportunity to present evidence to the contrary, and that their individual circumstances must be taken into account. For example, someone who is living with a sex worker for reasons entirely unrelated to prostitution (such as as cohabitation between two friends or roommates) should not be charged or prosecuted under this section. In order to avoid these kinds of disparities, it is important for law enforcement to adopt strategies that take into account the complexities and nuances of the sex industry. One such strategy is to work closely with sex worker advocacy groups and organizations, who can provide valuable insight and information about the industry and the experiences of sex workers. This can help law enforcement avoid missteps and minimize the risks of unfairly charging or penalizing individuals who are not involved in the exploitation of sex workers. Finally, it is important to recognize the broader social and political context within which section 212(3) is being enforced. The exploitation of sex workers is a complex societal problem, and there are many systemic and institutional factors that contribute to it. Rather than focusing exclusively on the criminalization of individual acts of exploitation, therefore, it is important for law enforcement and policymakers to adopt strategies that address these underlying issues and promote the well-being and safety of all individuals involved in the sex industry.