Seizing and Impounding of Vehicles used by Persons Charged with

Prostitution Offence

The Emergency and Protective Services Committee recommends the adoption of the following resolution submitted by Councillor Frances Nunziata, York Humber, and Councillor Dennis Fotinos, Davenport:

WHEREAS in Manitoba the Provincial Attorney General, as part of the battle against prostitution, has tabled Bill 39, an Act which will amend their Highway Traffic Act to permit police to seize and impound the vehicles of "johns" when charged with communicating for the purpose of prostitution;

AND WHEREAS just the introduction of this legislation is already credited by the City of Winnipeg police department with a drop in prostitution related offences;

AND WHEREAS every mechanism available to the police to battle prostitution should be made available and utilized;

THEREFORE BE IT RESOLVED THAT Council request the Government of Ontario to introduce similar enabling legislation, that would permit the Toronto Police Service to seize and impound vehicles, for a specified period of time, owned or occupied by individuals or "johns", that have been charged with communicating for the purpose of prostitution.

AND BE IT FURTHER RESOLVED THAT this resolution be forwarded to the Federal Minister of Justice requesting that the Criminal Code be amended to provide police officers with the authority to seize and impound vehicles involved in prostitution related offences.

Your Committee also submits the following report (July 7, 1998) from the City Solicitor:

Recommendation:

It is recommended that this report be received for information.

Background:

In considering Clause No. 3 of Report No. 5 of the Emergency and Protective Services Committee, entitled "Seizing and Impounding of Vehicles used by Persons Charged with Prostitution Offence" City Council, at its meeting held on June 3, 4, and 5, 1998, decided to refer the Clause back to the Emergency and Protective Services Committee for further consideration.

The clause consisted of a motion submitted by Councillor Frances Nunziata, York Humber, which reads as follows:

Therefore be it resolved that Council request that the Government of Ontario, through the Attorney General, introduce similar enabling legislation, that would permit the Toronto Police Service to seize and impound the vehicles, for a specified period of time, owned or occupied by individuals or "johns", that have been charged with communicating for the purpose of prostitution.

The "similar enabling legislation" referred to in the above motion is Bill 39, Manitoba's proposed amendment to its Highway Traffic Act, to allow such seizures and impoundment of vehicles. This Bill has only received First Reading in the Manitoba Legislature to date.

City Council requested that:

The Chief of Police [and the City Solicitor] also examine whether vehicles could be seized and impounded now, without the need to any specific new legislation, and report thereon to the Emergency and Protective Services Committee for such meeting.

Comments:

(1)Existing Legislation

(a)Municipal

The Municipal Act provides that municipalities are able to pass by-laws regulating the parking, standing, or stopping of motor vehicles and towing provisions are part of these by-laws. Such by-laws are in place in the new City of Toronto (for example, see Chapter 400 of the former City of Toronto Municipal Code). Municipal by-laws also provide for the seizure of goods where such goods are being sold by a street vendor in contravention of the by-law governing their activity.

None of the above-mentioned by-laws, however, could be used to authorize police officers to seize and impound vehicles owned or occupied by "johns" and used in the commission of a prostitution related offence.

(b)Provincial

No specific provincial legislation provides police officers with the authority to seize and impound vehicles involved in a prostitution related offence.

While the Ontario Highway Traffic Act ("HTA") allows a police officer to order the removal of vehicles, from a highway, that are interfering with traffic (ss. 170(12) and 170(15)), these sections are restricted to vehicles which are "parked" or "standing" on the highway. These items are defined in the HTA as follows:

"park" and "parking" means the standing of a vehicle, whether occupied or not, except when standing temporarily for the purpose of and while actually engaged in loading or unloading of merchandise or passengers.

"stand" and "standing" when prohibited, means the halting of a vehicle, whether occupied or not, except for the purpose and while actually engaged in receiving or discharging passengers.

The Court of Appeal has ruled that "park" involves more than a temporary stop and further that the words "leave standing" will not be satisfied by the mere stopping of a vehicle, while the driver remains in his or her place and intends to proceed directly (Speers v. Griffin, [1939] O.R. 552 (C.A.)). Therefore, these sections would not assist in seizing vehicles which are "cruising" and never come to a full rather than a temporary stop.

Subsection 220(1) of the HTA, allows the seizure and impounding of motor vehicles following a conviction under enumerated sections of the HTA and the Criminal Code. The enumerated sections of the Code deal with operating or having control over a motor vehicle, vessel, aircraft, or railway equipment, while impaired by drugs or alcohol. The prostitution offences, however, are not included in the enumerated list under subsection 220(1) of the HTA. Further, the proposed amendments to Manitoba's HTA provide that the seizure and impounding of a motor vehicle involved in a prostitution related offence will occur prior, not subsequent, to a conviction.

Based on the foregoing, it is my opinion that there is no existing provincial legislation which would authorize the police to seize and impound a motor vehicle used by a person charged with a prostitution related offence.

(c)Federal

No specific Federal legislation permits the seizure and impounding of a motor vehicle involved in a prostitution related offence, by reason of that offence alone.

Under subsection 489(2)(b) of the Criminal Code, a peace officer who is lawfully present in a place in the execution of his or her duties, may seize anything the officer believes on reasonable grounds has been used in the commission of an offence against the Code or any other Act of Parliament.

It is unclear whether this provision would support the seizure of a motor vehicle that was used in the commission of a prostitution related offence, as there are no reported cases which discuss this issue.

Further, the Code does not provide for the "impoundment" of such items, but rather sets out a comprehensive restitution and detention regime for such property. Section 489.1 of the Code, requires a peace officer to return the property as soon as is practicable so long as there is no dispute as to who is lawfully entitled to possession of the thing seized and that the continued detention of the thing seized is not required for the purposes of any investigation or court proceeding.

Assuming that a "john" drives his own car, and assuming that the detention of the car is not required for either an investigation or court proceeding, it is my opinion that under s. 489.1 of the Code, the police could not hold the car and would therefore be required to return it to the lawful owner.

Given the above, it appears that the current provisions of the Code respecting the seizure of property, do not extend to the seizure of vehicles used in the commission of prostitution related offences.

(2)Request for New Legislation

In light of the conclusion above, that existing laws do not provide sufficient authority for the impoundment of vehicles involved in prostitution related offences, Council may wish to consider making a request for certain legislative amendments, as discussed below.

Bill 39 to amend the Manitoba Highway Traffic Act includes the following proposed new subsection 242.2(3):

A peace officer who on reasonable grounds believes that a motor vehicle is being operated in the course of committing an offence under any of the following provisions of the Criminal Code (Canada) shall seize the vehicle and take it into the custody of the law:

(a) section 211 (transporting person to bawdy house);

(b) section 212 (procuring);

(c) section 213 (offence in relation to prostitution).

A request could be addressed to the provincial Government for the enactment of a similar amendment to the Ontario Highway Traffic Act.

A further request could be addressed to the Federal Government for the enactment of an amendment to the Criminal Code in order to provide police officers with the authority to seize and impound vehicles involved in prostitution related offences.

Conclusions:

There is no existing legislation which is broad enough to provide for the seizure and impounding of vehicles in relation to prostitution related offences under the Criminal Code.

City Council could request that the Provincial Government amend the Highway Traffic Act to include an enactment similar to that proposed in Manitoba. City Council may also request the Federal Government to amend the Criminal Code to provide police officers with the authority to seize and impound vehicles involved in prostitution related offences.

Contact Name:

Albert H. Cohen, Director - Litigation

(A copy of Bill 39, an Act to amend the Highway Traffic Act of the Province of Manitoba, which was provided to the Emergency and Protective Services Committee by Councillor Nunziata is on file in the Office of the City Clerk.)