Supreme Court of Canada
R. v. Whitter, [1981] 2 S.C.R. 606
Date: 1981-12-01
Her Majesty The Queen Appellant;
and
Dana Leanne Whitter Respondent;
and
Her Majesty The Queen Appellant;
and
Karen Elaine Galjot Respondent.
1981: June 17; 1981: December 1.
Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Criminal law—Prostitution—Soliciting—Pressing or persistent conduct essential element of charge—Encounters observed with several unidentified men before undercover police officer approached—Whether or not pressing or persistent conduct established—Criminal Code, R.S.C. 1970, c. C-34, s. 195.1.
Both cases concerned the meaning of the word “solicit” in s. 195.1 of the Criminal Code. Each respondent approached several men in public places before offering to prostitute herself to an undercover police officer. Nothing constituting “persistence” passed between the respondents and the police officers and no evidence of what respondents said to the men approached before the police officers was submitted. At trial, the cumulative effect of the previous approaches was held to establish the element of persistence inherent in the offence of soliciting but both the County Court and the Court of Appeal overturned this decision. The issue here was whether the persistent or pressing conduct must be found in the actual approach to the person alleged to have been solicited or whether it could be found in repeated earlier approaches to various unknown persons.
Held: The appeals should be dismissed.
To convict, the Crown had to show both the offer of services as a prostitute and an element of persistence or pressing conduct in presenting that offer. This latter element was not established and evidence that respondent approached others did not supply the deficiency. With no evidence of what either respondent said in her earlier accostings, it would be improper to draw the
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inference that she offered herself for prostitution on each occasion. Even if that inference were to be drawn, there is no connection between the earlier approaches and the final accosting of the police officer. Each previous accosting was an independent act directed at an unidentified individual and unrelated to the final approaches made to the two police officers.
Hutt v. The Queen, [1978] 2 S.C.R., 476, applied; R. v. Canavan and Busby, [1970] 5 C.C.C. 15; R. v. Flynn (1955), 111 C.C.C. 129; R. v. Kisinger and Voszler (1972), 6 C.C.C. (2d) 212; R. v. Zamal et al. (1963), 42 C.R. 378; R. v. Hulan, [1970] 1 C.C.C. 36, referred to.
APPEALS from judgments of the British Columbia Appeal Court[1], dismissing appeals from judgments of Macdonell C.C.J. allowing an appeal from conviction by Davies P.C.J. in the case of respondent Whitter, and allowing an appeal from conviction by Craig P.C.J. in the case of respondent Galjot. Appeals dismissed.
A.M. Stewart, for the appellant.
Phillip Rankin, for the respondent Dana Leanne Whitter.
George Geraghty, for the respondent Karen Elaine Galjot.
The judgment of the Court was delivered by
MCINTYRE J.—There are two separate appeals before the Court in these proceedings. Each one raises the same point of law and they were heard together and will be disposed of together. They raise again the question of the meaning of the word ‘solicit’, as it appears in s. 195.1 of the Criminal Code, which is reproduced hereunder:
SOLICITING
195.1 Every person who solicits any person in a public place for the purpose of prostitution is guilty of an offence punishable on summary conviction.
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This section has been considered in the courts on many occasions. The leading case on the subject, which must govern our approach to the matter, is Hutt v. The Queen[2]. Spence J., speaking for the majority of this Court, held that the word ‘solicit’, as used in s. 195.1 of the Criminal Code, included an element of persistence or pressure. It was decided that the mere demonstration by a woman of her willingness and availability for prostitution would not suffice to ground a conviction. In addition, the Crown would be required to prove that her approach to a prospective customer was accompanied by pressure or persistent conduct.
The respondent Whitter was charged that:
At the City of Vancouver, Province of British Columbia, on the 18th day of July, A.D., 1979 [she] unlawfully did solicit a person in a public place, to wit, the 1000 Block Granville Street, for the purpose of prostitution, contrary to the form of the Statute in such case made and provided.
Between about 9:40 p.m. and 10:02 p.m. on July 18, 1979 she was seen to approach seven men in the 1000 block Granville Street in Vancouver, admittedly a public place, and at 10:02 p.m. she spoke to an undercover officer. During her conversation with the officer she offered to prostitute herself and was arrested. At trial, the judge held that she had approached the officer for the purpose of prostitution, and considered that the cumulative effect of her previous approaches to other men supplied the element of persistence, called for in Hutt, and made her approach to the police officer a ‘soliciting’ within the meaning of s. 195.1 of the Code. She was accordingly convicted. Her appeal to the County Court under s. 758 of the Code succeeded. The learned County Court Judge held, as a matter of law, that to find a solicitation consideration must be limited to the circumstances of the approach to the person said to have been solicited. The Crown’s appeal to the Court of Appeal was dismissed with one dissenting judgment and the appeal to this Court resulted.
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The respondent Galjot was charged that:
at the City of Vancouver, Province of British Columbia, on the 21st day of May, A.D. 1979, [she] unlawfully did solicit a person in a public place, to wit, the 800 block West Georgia Street, for the purpose of prostitution, contrary to the form of the statute in such case made and provided.
On May 21, 1979 she was seen to approach seven males between 8:56 p.m. and 10:53 p.m. At 10:53 p.m. she approached an undercover police officer and advanced a proposition to him, clearly indicating a willingness and an availability for prostitution. She too was arrested. Her passage through the courts paralleled that of Whitter: convicted at trial, acquitted on appeal to the County Court and at the Court of Appeal.
The same issues arose and were disposed of in each case. There was no evidence adduced in either case of what may have been said by the respondents to the various men approached before accosting the police officers, and there was nothing in either case in what passed between the respondents and the police officers which would import the element of persistence or pressure required for a solicitation. In each case the trial judge drew an inference that the earlier approaches had been for the purpose of prostitution and then found in such approaches the necessary persistent or pressing conduct and related it to the approach to the police officers.
The obligation of the Crown to show pressing or persistent conduct was recognized throughout these proceedings in all courts. Judicial opinion, however, differed on the question of whether the persistent or pressing conduct must be found in the actual approach to the person alleged to have been solicited, or whether it could be found in the repeated earlier approaches to various unknown persons. The resolution of this question is central to these appeals because, as noted above, it was common ground that there was nothing of a pressing or persistent nature, as required by the Hutt case, in the approaches by the respondents to the police officers.
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Counsel for the Crown contended that in each case one act of soliciting had been made out by the cumulative effect of a series of encounters, one of which involved the police officer. He said in his factum in the Whitter appeal:
It is submitted that a correct statement of the law is that it was open to the Trial Court Judge to conclude that a series of events which took place between 9:40 p.m. and 10:02 p.m. disclosed a single offence of soliciting and that the elemtn [sic] of “persistence” called for by the Supreme Court of Canada in Hutt vs. The Queen was provided by the cumulative effect of the various “soft sells”.
This argument had been raised in the Court of Appeal and rejected by Bull J.A., for the majority, in these terms:
It is plain that it was the respondent’s encounter and arrangement with the undercover Detective Kajander, and with respect to which she was arrested, that was the subject matter of the charge. This is pointed up by the form of the charge that she did solicit “a person”. If the Crown had intended to cover an offence involving eight different persons, it should, in elementary fairness, have so said, and then, of course, open itself to an attack on the validity of the charge.
Counsel for the Crown contended that consideration of the earlier accostings in deciding whether the offence charged had been made out did not offend the ‘one transaction’ rule, found in s. 510 of the Criminal Code, and made applicable to these summary conviction proceedings by s. 729(1) of the Code. He referred on this aspect of the matter to several cases, including R. v. Canavan and Busby[3]; R. v. Flynn[4]; R. v. Kisinger and Voszler[5]; R. v. Zamal et al.[6] and R. v. Hulan[7], in support of the proposition that a series of events could be so closely related in time, place and circumstance that they could form one transaction. He then contended that it was open to the Court to consider the cumulative effect of the earlier accostings in deciding whether proof had been made of all elements of the charge of soliciting.
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Without expressing any view on the cases cited I agree with Bull J.A., in the Court of Appeal, that the principles therein enunciated have no application in these appeals. The cases cited, as well as involving a series of complete offences—which is not the case here—demonstrate a much closer relationship between the separate incidents than existed in the present cases. Furthermore, they provide, in my view, no authority for the approach taken by the Crown as set out above.
To begin with, there is no evidence in the record of what was said by either respondent in her earlier accostings. One would be naive to think that she was asking for a match or discussing politics or other matters of general social concern on these occasions, but there is no evidence on the point and in such a case, in my view, it would not be proper to draw an inference against the respondents. The earlier accostings therefore can afford no assistance in proof of the Crown’s case. Furthermore, even if one draws an inference that on each prior occasion the respondent offered herself for prostitution, I cannot see any connection between the earlier approaches and the final accosting of the police officer. Each of the previous accostings was an independent act directed at one individual whose identity is unknown; they were unconnected and not related to the final approaches to the two police officers. If any one of the men approached by the respondents had been receptive and accepted the offers made, no doubt the couple would have departed and the police officer would not have been approached. At the most, the Crown has shown that the respondents may have been plying their trade energetically, but the prior accostings were not related to the charge in respect of the police officers. They may not be described as a series of steps which have a cumulative effect upon the final accosting. They are more fittingly described as a series of alternative steps adopted by the respondents in the pursuit of their trade, but in no way directed to, or connected with, the final approach to the police officer and, therefore, lacking any capacity to contribute to the nature of the final approach.
In my view, these cases are clear. The respondents were charged in the words of the section with
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‘soliciting a person’. From the evidence adduced it was abundantly clear that that person, in each case, was the police officer named in the evidence. To convict, the Crown then had to show, in addition to the offer of her services as a prostitute, an element of persistence or pressing conduct in the presentation of that offer. This, the Crown admittedly did not do, and in my view, evidence that she approached others cannot, for the reasons I have endeavoured to outline, supply the deficiency.
In dissenting from the majority in the Court of Appeal, McFarlane J.A. expressed the view that on this issue the trial judge could consider a prostitute’s conduct towards “any number of persons where that conduct is reasonably connected as to time and place with the offence charged”. He referred to the history of the legislation which was commented upon by Spence J. in Hutt, supra, at p. 484, and expressed the view that the parliamentary intent in enacting s. 195.1 of the Criminal Code was to abate the social nuisance and inconvenience caused by the practice of soliciting for prostitution in public.
It may well be that the parliamentary intention in this regard in enacting s. 195.1 of the Code was that described by the learned dissenting judge. For the reasons which I have endeavoured to express above, however, it is my opinion that the enactment does not give effect to that intention, and renders compliance with the terms of the enactment and achievement of any such parliamentary intention impossible. If change is desirable in this respect, it is my view that legislative action would be necessary. Accordingly, I would dismiss both appeals.
Appeals dismissed.
Solicitor for the appellant: A.M. Stewart, Vancouver.
Solicitors for the respondent Dana Leanne Whitter: Rankin, Stone & McMurray, Vancouver.
Solicitors for the respondent Karen Elaine Galjot: Hart, Geraghty, Vancouver.