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#1
Old 06-05-2014, 10:46 AM
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Canadian legal question: definition of "public place"

The Canadian criminal code (s.197(1)) says that a public place "includes any place to which the public have access as of right or by invitation, express or implied".

It also says that a place "includes any place, whether or not (a) it is covered or enclosed, (b) it is used permanently or temporarily, or (c) any person has an exclusive right of user with respect to it".

Does anyone know of any case law on whether this includes the internet? I am seeing it argued that it does, but so far nobody has come up with any better reason than "because the internet is public".
#2
Old 06-05-2014, 10:57 AM
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It sounds like they are talking about physical places, but you would probably need to check to see if a court has ever ruled on it. If not, a lawyer could probably make a guess based on general principles of statutory interpretation and the caselaw for potentially similar statutes.
#3
Old 06-05-2014, 11:14 AM
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IIRC, a ruling about prostitution (soliciting) many years ago ruled that inside a car was NOT a public space. The lady had her head in the window talking to the undercover cops, and so the court ruled she was in a private space so soliciting in public did not apply.

I agree, it sounds more like the location of the person or act than the medium. If you hook up a microphone so that what I said in my bedroom is repeated in the park next door, that does not mean I am speaking in public, unless that is what I deliberately intend to do. Or... The guy with the loud radio in the park is creating the disturbance, not the radio announcer.

the wording seems pretty explicit about physical place (IANAL). If they intended to include medium of communication they would have said so. "escort ads" in newspapers and even the yellow pages used to be common and nobody suggested they were soliciting (as an illegal act, I mean. It was pretty obvious what was being sold.).

Last edited by md2000; 06-05-2014 at 11:18 AM.
#4
Old 06-06-2014, 03:47 AM
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Thanks md2000, it's specifically the law around advertising prostitution that I'm interested in. MacKay's new bill makes it illegal to communicate for the purpose of prostitution in a public place where there might be children present and a lot of Canadian escorts are freaking out thinking this is going to criminalise them if they advertise on the internet. I raised the point with one of them that that would have made it illegal to advertise under the old communication law, and she said that it actually was illegal under that law but was never enforced.

I've been trawling through CANLII and it doesn't look as though the courts have specifically addressed whether the internet meets the definition of a public place, but the Canadian Radio and Television Commission have in a 1999 report called New Media. This is what they said: "[The Commission] considers that the Internet is not in and of itself a "public place" in the sense intended by the Act. Programs are not transmitted to cyberspace, but through it, and are received in a physical place, e.g. in an office or home."

This was cited by the Federal Court of Appeal in a 2010 case called Re CRTC, and it is not disputed by the FCA although that point is not strictly at issue in the decision. The decision also refers to a 2004 case called Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, which (according to the 2010 decision) "relied on the Copyright Board’s assessment of the workings of the Internet which, in all essential aspects, is the same as that made by the CRTC in this case". I can't find the Copyright Board assessment on line so I can't tell if the internet-as-not-a-public-place is one of those essential aspects.

I'm inclined to think this is pretty good evidence anyway that the new bill would not criminalise escorts who advertise on the internet, but it would still be nice to have something a little more definitive.
#5
Old 06-06-2014, 04:02 AM
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If you want definitive, you'll pretty much have to wait for court rulings. These will likely make it to the supreme court again where it will throw out portions of it for much the same reasons it threw out the old sections.

Why not look at the case law related to the old prostitution laws? I believe they used the concept of public place and so it would have been defined in the prostitution-related case law.

CRTC rulings have nothing to do with whether Internet is a public place when it comes to criminal laws relating prostitution. The legal system is not that coherent in its use of language.
#6
Old 06-06-2014, 04:12 AM
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Penal statutes are construed restrictively, so if there's any ambiguity over whether a "place" can include a virtual place as well as a physical place, that ambiguity is likely to be resolved in favour of the defendant.

If the internet is a "place", and therefore a public place on the basis that the public have access to it, then the telephone network and the postal network are also "places" - they are all, after all, alternative modes of communication bewteen individuals. And, it would seem to follow, they are public places, since the public have access to the phone network and the postal service. True, you can have private phone calls and exchange private mail, but you can have private communications through the internet, too. But in all three cases the communication network is accessible to the public. So, if it's a place at all, it's a public place.

For the reason already given, though I think that, absent an explicity interpretive provision governing the point, a reference in a penal statute to a "place" does not include a communication network.

I don't think that sex workers advertising on the internet are necessarily in the clear, though. If evidence is given that the advertisement for sexual services that I posted on the internet was accessed in, say, a cyber cafe, I could be guilty of communicating for the purposes of prostitution in a public place where there might be children present - not because the internet is such a place, but because the cyber cafe is. What I have done is to make a communication which can and foreseeably will be received in a wide variety of places, some of which are public places where children may be present. In so far as my communication is received in the latter class of place, am I not in breach of the section you mention?
#7
Old 06-06-2014, 06:58 AM
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I agree with most of your reasoning. But ...
Quote:
Originally Posted by UDS View Post
......What I have done is to make a communication which can and foreseeably will be received in a wide variety of places, some of which are public places where children may be present. In so far as my communication is received in the latter class of place, am I not in breach of the section you mention?
How is that different from md2000's comment that a man playing a radio loudly in the park is the actor creating a public nuisance, not the radio announcer being heard?

In general when one broadcasts in any fashion, one loses all control of how & where the broadcast is (mis-)used. Said another way, any broadcaster can reasonably assume that if his/her broadcast can be misused, it will be misused. Which brings us directly to the concept of prior restraint, etc. i.e. Since any broadcast can be misused, it will be misused somewhere by someone. And therefore must be illegal in the first place.

Clearly when it comes to regulating things sex-related, our societies & politicians tend to be spring-loaded to the "it's all a crime or sin or something" vs. our attitude to loud music in a park. But as a matter of legal logic there's no difference.

Last edited by LSLGuy; 06-06-2014 at 07:02 AM.
#8
Old 06-06-2014, 07:28 AM
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Quote:
Originally Posted by MichaelEmouse View Post
Why not look at the case law related to the old prostitution laws? I believe they used the concept of public place and so it would have been defined in the prostitution-related case law.
As far as I can tell they did not specifically address whether the internet would be covered (including in the manner UDS outlines). Where they addressed the definition, they focused on the "public" aspect, not the "place" aspect which is arguably more relevant to my question.

Quote:
CRTC rulings have nothing to do with whether Internet is a public place when it comes to criminal laws relating prostitution. The legal system is not that coherent in its use of language.
I would presume that if the courts were to endorse a CRTC position that the internet was not a public place as defined in law, that would exclude the application of a law that criminalises certain activity only when it occurs in a public place. I'm not sure why you seem to think it wouldn't. But as I said, I haven't found any evidence that they have explicitly endorsed such a position. Which is why I'm asking.

I do agree much of the bill (if it becomes law) is likely to be struck down under the Bedford ruling, but that will probably take a while, so it would be useful to have clear guidance now.
#9
Old 06-07-2014, 10:33 AM
UDS UDS is offline
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Quote:
Originally Posted by LSLGuy View Post
I agree with most of your reasoning. But ...How is that different from md2000's comment that a man playing a radio loudly in the park is the actor creating a public nuisance, not the radio announcer being heard?

In general when one broadcasts in any fashion, one loses all control of how & where the broadcast is (mis-)used. Said another way, any broadcaster can reasonably assume that if his/her broadcast can be misused, it will be misused. Which brings us directly to the concept of prior restraint, etc. i.e. Since any broadcast can be misused, it will be misused somewhere by someone. And therefore must be illegal in the first place.

Clearly when it comes to regulating things sex-related, our societies & politicians tend to be spring-loaded to the "it's all a crime or sin or something" vs. our attitude to loud music in a park. But as a matter of legal logic there's no difference.
It's different because there is no offence of broadcasting material which may be heard in a public park in a way that amounts to a nuisance. But there is an offence of communicating material relating to sexual services in a public place where a child may be present.
#10
Old 06-09-2014, 01:51 AM
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UDS I've been thinking about your answer upthread and I'm not sure that works either. If someone publishes nude photos online, that would presumably (if you are correct) make them liable under Section 174(1) of the Criminal Code, which criminalises nudity in a public place, if anyone accesses those photos in a cybercafé. Yet as I far as I tell it is not regarded as illegal for people to post their own nude photos online.
#11
Old 06-09-2014, 02:17 AM
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Quote:
Originally Posted by ruadh View Post
UDS I've been thinking about your answer upthread and I'm not sure that works either. If someone publishes nude photos online, that would presumably (if you are correct) make them liable under Section 174(1) of the Criminal Code, which criminalises nudity in a public place, if anyone accesses those photos in a cybercafé. Yet as I far as I tell it is not regarded as illegal for people to post their own nude photos online.
I don't think so. S.174 provides as follows:

"Every one who, without lawful excuse,

(a) is nude in a public place, or

(b) is nude and exposed to public view while on private property, whether or not the property is his own,

is guilty of an offence punishable on summary conviction."

Nothing there about communication. If I'm nude in the privacy of my enclosed and curtained bedroom, and I post a photograph of my nude self to the web, I'm not in a public place, and I'm not "exposed to public view while on private property". My photograph or my image is exposed to public view, but the section isn't directed at whether my image can be seen, but whether I can.
#12
Old 06-09-2014, 02:33 PM
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sounds very similar to the English definition. "A place to which the public are permitted to have access, whether as of right or upon payment of a fee."
The area behind the counter in a gun store was also held to be a public place, because the owner had a loaded gun hanging on a nail there and the police wanted to get him for it.

Last edited by Mk VII; 06-09-2014 at 02:35 PM.
#13
Old 06-19-2014, 03:08 AM
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Not exactly an answer, but the Justice Department has now said that a sex worker who places an advertisement cannot be prosecuted under the law.
#14
Old 06-19-2014, 03:30 AM
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Well, the Minister does come accross as deeply confused. But never mind that.

This bit intrigues me:

"Justice Department officials corrected the minister. They said prostitutes advertising their own services cannot be prosecuted under the new law.

As for the newspaper, magazine or web page posting such an ad, it might be considered a party to the offence, but only if it could be proven that it understood the ad was for prostitution."


This has to be contradictory. If the prostitute commits no offence by advertising, how can the newspaper, etc, be a party to the offence? There is no offence to be a party to.

This could be poor subediting - the DoJ officials may have said something a bit more intelligent - but possibly it points to the way the Department sees the law operating. They're understanding "communicate" to refer to direct or immediate communication; I approach you in a shopping mall and offer a romantic assignation on moderate terms; I commit the offence because there may be children in a shopping mall. But I do the same thing in a bar or other over-18 venue; no offence. because there shouldn't be any children there.

Right. Suppose I put an ad on a (supposedly) age-restricted internet site. No offence, because there shouldn't be any children on the site. But you access my ad in a cyber-cafe (knowing what kind of ad it is or is likely to be). You're the one who has now brought my communication to light in a place where it shouldn't be; you're committing the offence - you're communicating the ad to a further audience by opening it in the place where you do. Simlarly, if you display and sell the magazine with the naughty listings, knowing what kind of magazine it is, you're the one communicating my offer in a place where kiddies may be.

(Unless, perhaps, the offence is drafted so that it only covers the communication of an offer of one's own sexual services. Then you should be in the clear.)

Last edited by UDS; 06-19-2014 at 03:31 AM.
#15
Old 06-19-2014, 06:00 AM
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Part of the confusion here is because there are two different relevant sections in the bill. One of them makes it an offence to advertise the sale of sexual services, but excludes those advertising their own sexual services. Notwithstanding the latter provision, there was a fear that escorts could still be prosecuted under a separate section that outlaws communicating for the purposes of prostitution in a public place where children are likely to be present. The Justice Department seems to be ruling that out now. Websites and newspapers, etc, that host the ads (and presumably the shops that sell such newspapers) can still be prosecuted, but this is probably under the section that outlaws advertising rather than the section that outlaws communication. As to whether they'd go after someone who opens up an advertising website in a cybercafé, I suppose that's still open to debate.
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