Current & Curious: Procuring is not a SPIO, but should it nonetheless be a route to a DO?

Mark Burton was charged with a number of sexual offences, several prostitution related offence and offences related to breaches of probation orders and an under section 810.2. Burton plead guilty to some of the breach offences and at the conclusion of the trial Trotter J acquitted him of all but the attempt to procure a person, AT, into prostitution and the breach of the 810.2 order: 2013 ONSC 2160.

Following these convictions the Crown sought a ruling on whether the attempt to procure conviction constituted a serious personal injury offence [SPIO], a requirement for dangerous offender application the Crown had indicated they were planning to bring. Trotter J held that it was not: 2013 ONSC 3120.

As part of the submissions on the application the Crown:

(…) emphasized the horrors and evils of prostitution, especially when young persons such as A.T. become ensnared in this dark and dangerous world. The social ills and dangers associated with prostitution, and juvenile prostitution in particular, are well-recognized and accepted by social science, and reflected in the legal literature and Canadian jurisprudence: see, for example, R. v. F.E.D., [2009] O.J. No. 819 (S.C.J.), Committee on Sexual Offences Against Children and Youth (Badgley Committee), Sexual Offences Against Children in Canada (Ottawa: Supply and Services Canada, 1984), Special Committee on Pornography and Prostitution (Fraser Committee), Pornography and Prostitution in Canada (Ottawa: Supply and Services Canada, 1985), R. v. Miller, [1997] O.J. No. 3911 (S.C.J.) and Bedford v. Canada (Attorney General), (2012), 282 C.C.C. (3d) 1 (Ont. C.A.), per Doherty J.A. at pp. 46-51 [para 10].

Trotter J appears to have rejected the import of this argument:

(…) this Ruling does not call for a panoramic discussion of these well-known harms associated with prostitution. This Ruling is about the legal significance of what actually happened to A.T. and whether it amounted to a SPIO. This analysis does not allow for speculation about what might have befallen A.T. had things gone differently had she not said "no" [para 11].

It is unfortunate that Trotter J didn’t offer a more thorough analysis of this argument by the Crown. The definition of SPIO includes “conduct endangering or likely to endanger the life or safety of another person” [emphasis added]. Given it captures conduct “likely to endanger” it is not, with repsect, only “what actually happened to A.T.” that is at issue. What was “likely” to happen to her is also at issue. While it may be that an offer which was rejected – as was the case here – does not make it likely she would be subjected to the “well-known harms associated with prostitution” consider whether an accepted offer would have sufficed; further, would there have to be actual prostitution beyond an accepted offer for the conduct (of procuring) to have “likely endangered”. On the facts, an offer which was rejected, may not have likely endangered; nonetheless, with respect, it is not only about what actually happened and this astute argument perhaps warranted more attention.

After reviewing the statutory framework Trotter J continued his ruling and explained the contentious issues:

(…) whether the commission of the offence under s. 212(1)(d) of the Criminal Code amounted to: (1) the use or attempted use of violence against another person; (2) conduct endangering or likely to endanger the life of another person; or (3) conduct inflicting or likely to inflict severe psychological damage upon another person [para 20].

First, on the issue of whether violence was used or attempted, Trotter J was:

(…) unable to find that what Mr. Burton did (a single attempt to persuade A.T. to work as a prostitute) involved the use or attempted use of violence or that it was conduct that endangered or was likely to endanger A.T.'s life. He asked; she said "no." He said "think about it"; she said nothing. Mr. Burton sent her a non-threatening text message, offering her $200 in exchange for her silence. On these facts, it cannot be realistically said that any form of violence or endangerment was present [para 25].

Second, with respect to the psychological harm, Trotter J held that although there was some evidence of psychological ham, there was no evidence of its severity.

Ultimately, Trotter J concluded that the offence was not a serious personal injury offence but in so doing he invited Parliament to add procuring to the list of offences which do trigger a dangerous offender application.

It might strike some as passing strange that an attempt to procure a 16-year-old into prostitution does not automatically trigger a dangerous offender application. But this is not what the Criminal Code says. It is open to Parliament to create a list of offences that, however committed, would trigger a dangerous offender application. Offences under s. 212(1)(d) might be included in that list. Until that time, judges must grapple with the definition provided in s. 752, as I have attempted to do above [para 34].