Thank you very much, Mr. Cooper.
Just to provide context, there are three different prohibitions relating to communication.
First, the prohibition relating to the seller is under subsection 213(1.1). This is the section that we focused on primarily in our submission. That prohibition prevents the sex worker from “offering or providing” the sale of sexual services “in a public place, or in any place open to public view, that is or is next to a school ground, playground or daycare centre.”
The definition of “public place” in subsection 213(2) only applies to that section, but, as I mentioned in our written submission, it's somewhat circular. It simply says that a public place is essentially a place to which the public is invited. The definition doesn't really provide any meat, if you will, or additional context.
Then, there is the prohibition relating to a traffic impediment. Under subsection 213(1), that prohibition applies to both the seller and the purchaser.
Now, section 286.1, the main section relating to communication, applies to the purchaser. It is broader, in that it says it is an offence to communicate “with anyone for the purpose of obtaining for consideration” sexual services. There are two tiers, if you will, of offences: a generic offence for summary conviction and, of course, the more serious, indictable offence of communication “in a public place, or in any place open to public view, that is or is next to a park or the grounds of a school or religious institution or that is or is next to any other place where persons under the age of 18 can reasonably be expected to be present”.
For the purchaser, if you will, the communication has a broader location and includes locations where children “under the age of 18 can reasonably be expected to be present”. But for the sex worker, it is narrower and tied to, at present, the public place or place open to public view that has those three qualifiers: school ground, playground or day care centre.
Now, the problem with those three terms, as they apply under subsection 213(1.1), is that they're not defined. For example, a term like “playground” might seem self-evident at first blush. Well, what does it mean? Is it a place—as might first come to mind—where there are slides, monkey bars, etc.? Does that mean it's restricted to an outside event, or is it some place that would also be included within a recreation facility? These things simply aren't known. Where there's ambiguity in terms, there's difficulty with respect to both compliance and enforcement.
In our paper, we outlined some case law post-2014, not directly relating to these sections, but cases that have struggled with the issue of what is meant by “public place”. We would leave those for your consideration, because it does show that the courts wrestle with this.