Hutt v. The Queen, [1978] 2 SCR 476

Supreme Court of Canada

Hutt v. The Queen, [1978] 2 S.C.R. 476

Date: 1978-02-07

Debra Hutt Appellant;

and

Her Majesty The Queen Respondent.

1977: November 30; 1978: February 7.

Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Soliciting—Meaning of “solicit”—Accused smiling at police officer in unmarked car and officer returning smile—Accused entering officer’s car—Subsequent conversation demonstrating nothing more than that accused available for prostitution—No evidence of pressure or persistence on part of accused—Conviction quashed—Criminal Code, s. 195.1.

The Crown was successful in an appeal to the British Columbia Court of Appeal against the acquittal on a trial de novo in the County Court of Vancouver of the present appellant on a charge of soliciting contrary to s. 195.1 of the Criminal Code. Leave to appeal to this Court was granted on the question whether the Court of Appeal erred in law in interpreting the meaning of the word “solicit” in s. 195.1.

The evidence indicated that a police officer, while on duty and casually dressed, had brought his unmarked car to a stop at an intersection. The officer saw the appellant standing on the sidewalk and while he was looking at her she smiled at him and he smiled in return. The appellant then got into the car voluntarily and she asked the officer if he wanted a girl. She stated that she was “a working girl”, “a prostitute”. The officer answered her question in the affirmative. There was some further conversation with respect to going to a hotel and this was followed by the arrest of the appellant when the officer’s car was parked at the hotel.

Held: The appeal should be allowed and the conviction quashed.

Per Laskin C.J. and Martland, Spence, Dickson and Estey JJ.: The charge was that the accused did solicit “in a public place, to wit, 700 block Helmcken” and s. 195.1 makes it an offence to solicit “in a public place”. The officer’s automobile was not a public place within the definition of that term in s. 179 of the Criminal Code but was, on the other hand, a private place of which he had the sole control. This determination would

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have been sufficient to dispose of the appeal in favour of the appellant.

Even if the word “solicit” were given the widest possible definition, there was, until the time the automobile door was closed, no demonstration that the intention of the appellant was to make herself available for prostitution. It would be ridiculous and abhorrent to say that every female pedestrian who requests a free ride in an automobile is soliciting within the provisions of s. 195.1. Since, however, the issue of whether or not the officer’s automobile was a “public place” was not before the Court upon this appeal, the appeal was disposed of as if it had been a “public place”.

The word solicit is not defined in the Code and therefore reference must be made to established dictionaries for the purpose of defining the word. An exact definition from the Shorter Oxford Dictionary is: “c. of women: to accost and importune (men) for immoral purposes”. That definition requires, in turn, the definition of the words “accost” and “importune”. Definitions of “accost” might be summarized as “to confront”. Of various definitions of “importune” the following was selected: “To solicit pressingly or persistently; to beset with petitions”.

The appellant did not enter the officer’s car uninvited. The officer returned her smile and he admitted that one of his duties was to make it appear that he wanted a girl for sex and that the reason he immediately returned the smile was to encourage her to solicit him. The appellant’s conversation with the officer demonstrated nothing more than that she was available for prostitution. There was nothing pressing or persistent as was required.

This view of the appeal was strengthened by a consideration of the changes in the legislation. The old s. 175(1)(c) (one of the kinds of “vagrancy”, repealed by 1972 (Can.), c. 13, s. 12) applied only to common prostitutes or night walkers. Section 195.1, which was enacted at the same time, applies to “every person”. Section 175(1)(c) made it an offence for such common prostitute to be in a public place even if absolutely immobile and silent unless she could give a good account of herself, while s. 195.1 requires the person to solicit. This indicated that Parliament wished to require some acts on the part of the person which would contribute to public inconvenience, and certainly the acts of the present appellant were not such as would so contribute. In fact, on reading the statement of facts, one wondered whether the appellant solicited any more than the complaining officer.

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Accordingly, the appeal must be allowed and the conviction quashed. However, had the opposite conclusion been arrived at, then the procedure in Lowry and Lepper v. The Queen, [1974] S.C.R. 195, would have been adopted, that is, to dismiss the appeal on the merits but remit the case to the Court of Appeal to pass sentence after receiving any submissions which the appellant wished to make or have made on her behalf.

Per Ritchie, Pigeon, Beetz and Pratte JJ.: The word “solicit” as used in s. 195.1 of the Code carries with it an element of persistence and pressure and there was no evidence of the existence of such an element in the description of the appellant’s activities as contained in the evidence. On the other hand, the police officer’s own testimony to the effect that “one of his duties was to make it appear as if he wanted a girl for sex” was such as to make it more appropriate to characterize the appellant’s conduct as “co-operation” rather than “solicitation”.

[R. v. Rolland (1975), 31 C.R.N.S. 68, referred to]

APPEAL from a judgment of the Court of Appeal for British Columbia[1], allowing the Crown’s appeal against the acquittal on a trial de novo of the appellant on a charge of soliciting contrary to s. 195.1 of the Criminal Code. Appeal allowed and conviction quashed.

A.P. Serka and A. Rounthwaite, for the appellant.

R.H.F. Jaques, for the respondent.

The judgment of Laskin C.J. and Martland, Spence, Dickson and Estey JJ. was delivered by

SPENCE J.—This is an appeal, by leave, from the judgment of the Court of Appeal for British Columbia pronounced on May 19, 1976. By that judgment, the Court of Appeal allowed an appeal from the judgment of His Honour Judge Macdonnell pronounced on December 5, 1975. By the latter judgment, His Honour Judge Macdonnell had allowed an appeal from the conviction of the appellant by a Provincial Court judge on the charge that

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at the City of Vancouver, Province of British Columbia, on the 8th day of May A.D., 1975 unlawfully did solicit a person, in a public place, to wit, 700 block Helmcken for the purpose of prostitution

JUL 18 1975

That charge was laid under the provisions of s. 195.1 of the Criminal Code which provides:

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.

His Honour Judge Macdonnell outlined a statement of facts which was adopted by Robertson J.A. in the Court of Appeal for British Columbia which I set out hereunder:

On the appeal, the Crown called one witness, Detective Barclay of the Vancouver City Police, who gave evidence that at approximately 9:25 p.m. on May 8th, 1975 while on duty and casually dressed, he drove his unmarked standard passenger car along Helmcken Street and came to a stop at the intersection of Granville Street and Helmcken Street in Vancouver. The officer was alone in the car. The officer believed that he saw the accused before he stopped the car but in any event, as he pulled up and stopped, he saw the accused almost immediately standing on the sidewalk of Helmcken Street approximately one car length from the stop line adjacent to the stop sign. He had a good look at the appellant and from this look he was able to describe what she was wearing. While looking at her, the accused smiled at him and he smiled in return. The appellant then approached the passenger side of the car, opened the door and got in. Either while she was getting in or when she had got in the car, the officer again smiled at her. The appellant then sat in the front seat and closed the door behind her. The conversation that then took place between them was as follows:

Appellant:	Hi.
Officer:	Hi.
Appellant:	Do you want a girl?
Officer:	What do you mean?
Appellant:	Do you want to go out?
Officer:	Okay.
Appellant:	It’s $30.00.
Officer:	Oh, gosh, what will we do?
Appellant:	I am a working girl.
Officer:	Oh, what’s that?
Appellant:	Do you want a girl?

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Officer:	Okay, yes.
Appellant:	I am a working girl. I am a prostitute.
Officer:	Oh, I’ve never done this before.
Appellant:	Oh.
Officer:	I’m staying at the Dufferin.
Appellant:	Okay.
Officer:	Will you do oral sex?
Appellant:	You mean a french?
Officer:	Yeah.
Appellant:	Oh, yes.
Officer:	Okay.
Appellant:	Let’s go.

Some further conversation then took place with respect to going to the Dufferin Hotel followed by the arrest of the appellant when the officer’s car was parked at the rear of the Dufferin Hotel. Officer Barclay testified that the word “french” meant an act of fellatio, that the expression “working girl” was a word used by prostitutes to identify themselves to male customers. On cross-examination, the officer agreed that one of his duties was to make it appear as if he wanted a girl for sex and that the reason he immediately returned the smile was to encourage her to solicit him (for the purpose of prostitution).

The order of this Court granting leave to appeal provided that:

IT Is ORDERED that Leave to Appeal be granted on the following question of law:

Whether the Court of Appeal erred in law in interpreting the meaning of the word “solicit” in Section 195.1 of the Criminal Code.

The charge which I have recited above was that the accused did solicit “in a public place, to wit, 700 block Helmcken” and s. 195.1, which I have quoted above, makes it an offence to solicit “in a public place”. The learned County Court judge, in his reasons for judgment, said, “The officer’s car where it was located was clearly a public place”.

In view of the limitation of the question upon which leave to appeal was granted, the issue of whether or not the officer’s car was a “public place” was not referred to in the factums filed on this appeal, “Public place” is defined for the purpose of Part V of the Criminal Code in s. 179 as follows:

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“public place” includes any place to which the public have access as of right or by invitation, express or implied.

I am most strongly of the opinion that this officer’s automobile was not such a public place but was, on the other hand, a private place of which he had the sole control. To interpret the words otherwise would mean that if I were to invite anyone to enter my own home then that home would be a public place. In my view, the determination that the officer’s car was not a public place would have been sufficient to dispose of the appeal and it must be allowed.

The facts which I have recited above show that there was not one word spoken until the appellant had entered the automobile and had closed the door. Even if one were to give to the word “solicit” the widest possible definition, there was, until the time that automobile door was closed, no demonstration that the intention of the appellant was to make herself available for prostitution. I suppose that in Vancouver there are hundreds of pedestrians every day who request free rides in automobiles, and it would appear ridiculous and abhorrent to say that every one of them who was female and who did so was guilty of soliciting within the provisions of this section of the Criminal Code. Since, however, the issue of whether or not the officer’s automobile was a “public place” was not before the Court upon this appeal, I shall proceed to dispose of the appeal as if it had been a “public place”.

It is evident, of course, that the sole issue before the learned County Court judge and before the Court of Appeal for British Columbia was whether the circumstances in this case, so accurately outlined by the learned County Court judge, fall within the prohibition of the Code, that is, did the appellant solicit? It must be noted, and it has been noted below, that the word “solicit” is not defined in the Criminal Code, therefore, the Courts below have taken what I am of opinion was a proper course and have turned to established English dictionaries for the purpose of defining the word. The natural choice, of course, is the Shorter Oxford Dictionary. There, as has been said, the definition is exact and I quote it:

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c. of women; to accost and importune (men) for immoral purposes.

Of course, that definition requires, in turn, the definition of the words “accost” and “importune” and it is noted that the definition used those two verbs conjunctively and not alternatively. “Accost” in the same dictionary, is defined:

3. trans., to approach for any purpose; to face; to make up to;

4. to address;

5. to solicit in the street for an improper purpose.

I think I might summarize those definitions by saying “to confront”.

“Importune”, again in the Shorter Oxford Dictionary, is variously defined and I choose the following:

3. To solicit pressingly or persistently; to beset with petitions.

It was the view of the Courts below that the definition of “importune” as “to burden; to trouble; worry, pester, annoy” was obsolete and I am quite ready to agree that “importune” does not import the element of pestering or annoying but I am of the opinion that it still maintains the meaning of “pressing or persisting”.

Robertson J.A., in giving his reasons in the Court of Appeal for British Columbia, found that there must be “something more” than the demonstration of intention to make herself available for prostitution but that “something more” did not necessarily have to be conduct that is “pressing, persistent, troublesome, worrying, pestering or annoying”. In using those various adjectives, Robertson J.A. was combining two alternative definitions of “importune” in the Shorter Oxford Dictionary. As I have said, I agree that as to the adjectives “troublesome, worrying, pestering or annoying” modern usage does not require the conduct to amount to compliance therewith but I am of the opinion that the “something else” is to be “pressing or persistent” within the definition which I have quoted above.

After having discussed various cases, and set out the statement of facts which I have cited above, Robertson J.A. said:

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It appears to me that these facts provide in abundance the something-in-addition that is necessary to constitute the offence. I refer particularly to the accused getting into the man’s car uninvited, and to her asking him “Do you want a girl?”, followed by the statement “I am a working girl, I am a prostitute”.

In the first place, the appellant did not enter the officer’s car uninvited. The officer returned her smile and, in the last paragraph of the statement of facts, there is recited the admission of the officer that one of his duties was to make it appear that he wanted a girl for sex and that the reason he immediately returned the smile was to encourage her to solicit him. We are not, however, in this case concerned with any defence of entrapment. To continue reference to the facts and Robertson J.A.’s characterization of them, I can find nothing more than the demonstration that the appellant was available for prostitution in either her question “Do you want a girl?” or her further statement “I am a working girl. I am a prostitute” which followed the officer’s reply to her question which was “Okay, yes”. Therefore, I can find nothing in that conversation which would comply with even the indefinite “something else” which Robertson J.A. required and certainly I can find nothing pressing or persistent as I am of the opinion is required.

I am strengthened in this view of the appeal by considering the changes in the legislation. From 1869 until 1972, there appeared in penal statutes in Canada as one of the kinds of “vagrancy” the offence in the Criminal Code as it appeared in R.S.C. 1970, c. C‑34,s. 175(1)(c):

being a common prostitute or night walker is found in a public place and does not, when required, give a good account of herself;

That provision was repealed by the Statutes of Canada, 1972, c. 13, s. 12. Prostitution itself was not then an offence. The offences of keeping a common bawdy house and of being an inmate of a common bawdy house were retained by s. 193(1) and (2). At the same time, s. 195.1 was enacted. The comparison between the old s. 175(1)(c) and 195.1 is informative. Firstly, 175(1)(c) applied only to common prostitutes or night walkers. Section 195.1 applies to “every person”. Secondly, s.

[Page 484]

175(1)(c) made it an offence for such common prostitute to be in a public place even if absolutely immobile and silent unless she could give a good account of herself, while s. 195.1 requires the person to solicit. I am of the opinion that this history of the legislation indicates that Parliament wished to require some acts on the part of the person which would contribute to public inconvenience, and certainly the acts of the present appellant were not such as would so contribute. In fact, when one reads the statement of facts, one wonders whether the appellant solicited any more than the complaining officer.

Section 195.1 is enacted in Part V which is entitled “DISORDERLY HOUSES, GAMING AND BETTING”. Offences in reference to all three of these subject-matters are offences which do contribute to public inconvenience or unrest and again I am of the opinion that Parliament was indicating that what it desired to prohibit was a contribution to public inconvenience or unrest. The conduct of the appellant in this case cannot be so characterized.

It would appear that the complaining police officer, on instructions, was attempting to enforce the provisions of the Criminal Code as if they still contained s. 175(1)(c).

I note that my conclusion accords with that of the Court of Appeal for Ontario in R. v. Rolland[2], and I adopt the judgment of Jessup J.A.

For the above reasons, I am of the opinion that the appeal must be allowed and the conviction quashed. However, had I arrived at the opposite conclusion, I could not simply have dismissed the appeal. The judgment of the Court of Appeal allowed the appeal, from the acquittal and then continued:

And this Court doth order and adjudge that the said Debra Hutt be fined the sum of $1.00.

Counsel for the Crown appearing on this appeal admitted that the accused was not present in Court and made no representations in reference to the

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sentence. Section 577.1 of the Criminal Code provides:

Subject to subsection (2), the accused, other than a corporation, shall be present in court during the whole of his trial.

Subsection (2) is inapplicable.

This Court in Lowry and Lepper v. The Queen[3] held that when an accused person was a respondent upon a Crown appeal from an acquittal, then that accused person was entitled to make representations as to sentence after the Court of Appeal had allowed an appeal and directed a conviction upon the charge. Despite the fact that the fine was altogether nominal, I am of the opinion that this decision applies so that the appellant in this Court, respondent in the Court of Appeal, Debra Hutt, was entitled to make representations prior to any imposition of a penalty by the Court of Appeal. Therefore, had I been of the opinion that the appeal should have been dismissed, I would have had to adopt the procedure in Lowry and Lepper v. The Queen, supra, that is, to dismiss the appeal on the merits but remit the case to the Court of Appeal to pass sentence after receiving any submissions which the appellant wished to make or have made on her behalf.

In the result, I would allow the appeal and quash the conviction.

The judgment of Ritchie, Pigeon, Beetz and Pratte JJ. was delivered by

RITCHIE J.—I have had the advantage of reading the reasons for judgment prepared for delivery by my brother Spence in which he has reviewed the facts giving rise to this appeal and has also made reference to the question of law upon which leave to appeal was granted which is:

Whether the Court of Appeal erred in law in interpreting the meaning of the word “solicit” in s. 195.1 of the Criminal Code.

I have concluded that the Court of Appeal did err in law in interpreting the word “solicit” as used in s. 195.1 in such manner as to be descriptive of the behaviour of the appellant as disclosed by the evidence in this case. In this regard I am in accord

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with my brother Spence, but as the appeal, in my opinion, falls to be determined within the limits of the question upon which leave to appeal was granted I prefer to base my conclusion on somewhat narrower grounds than those which he has adopted.

I subscribe to the opinion that the word “solicit” as used in the section in question carries with it an element of persistence and pressure and I find no evidence of the existence of such an element in the description of the appellant’s activities as contained in the evidence. I am, on the other hand, of the opinion that the police officer’s own testimony to the effect that “one of his duties was to make it appear as if he wanted a girl for sex” is such as to make it more appropriate to characterize the appellant’s conduct as “co-operation” rather than “solicitation”.

For these reasons, I would allow this appeal, but I do not find it necessary to express any view on the other points referred to by Mr. Justice Spence.

Appeal allowed and conviction quashed.

Solicitors for the appellant: Serka, Shelling & Assoc., Vancouver.

Solicitors for the respondent: Department of the Attorney General of British Columbia, Vancouver.