TABLE OF CONTENTS

REPORTS OF THE STANDING COMMITTEES

AND OTHER COMMITTEES

As Considered by

The Council of the City of Toronto

on October 28, 29 and 30, 1998

EMERGENCY AND PROTECTIVE SERVICES COMMITTEE

REPORT No. 10

1Seizing and Impounding of Vehicles Used by Persons Charged with Prostitution Offence

2Other Item Considered by the Committee

City of Toronto

REPORT No. 10

OF THE EMERGENCY AND PROTECTIVE SERVICES COMMITTEE

(from its meeting on September 8 and 11, 1998,

submitted by Councillor Dennis Fotinos, Chair)

As Considered by

The Council of the City of Toronto

on October 28, 29 and 30, 1998

1

Seizing and Impounding of Vehicles Used by Persons Charged with

Prostitution Offence

(City Council on October 28, 29 and 30, 1998, amended this Clause by:

(1)deleting the word "charged" from the first Recital and the first Operative Paragraph of the Resolution embodied in the Clause and inserting in lieu thereof the word "convicted"; and

(2)adding thereto the following:

"It is further recommended that:

(1)the Federal and Provincial Governments be requested to come to a quick conclusion to their consultation process and bring forward recommendations no later than the summer of 1999, to deal with the issue of prostitution; and

(2)the communication dated October 28, 1998, from the Director, Litigation, addressed to the City Solicitor, respecting the seizing and impounding of vehicles used by persons convicted with prostitution offences, be referred to the Chief of Police with a request that the Chief look into the subject matter further and consider seeking the advice of the Crown Attorney with respect to the use of Section 489 of the Criminal Code, and report thereon to the Police Services Board and the Emergency and Protective Services Committee.")

(City Council on October 1 and 2, 1998, deferred consideration of this Clause to the next regular meeting of Council to be held on October 28, 1998.)

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(Clause No. 3 of Report No. 9 of the Emergency and Protective Services Committee)

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) and170(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. Section489.1 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.)

(City Council on October 28, 29 and 30, 1998, had before it, during consideration of the foregoing Clause, the following report (October 28, 1998) addressed to the City Solicitor from the Director - Litigation:

Background:

At its meeting of June 3, 4, and 5, 1998, City Council referred Clause No. 3 of Report No. 5 of The Emergency and Protective Services Committee, consisting of the following motion submitted by Councillor Frances Nunziata back to the Emergency and Protective Services Committee for further consideration:

"THEREFORE IT BE 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."

back to the Emergency and Protective Services Committee for further consideration.

The "similar enabling legislation" referred to by Councillor Nunziata is Manitoba's Bill 39, amending that province's Highway Traffic Act to allow such seizures and impoundment of vehicles. Bill 39 has been passed and is expected to be proclaimed into force on January 1, 1999.

At the same meeting, City Council also asked the City Solicitor to examine whether vehicles could be seized and impounded without any specific new legislation, and report thereon to the Emergency and Protective Services Committee.

The City Solicitor prepared a report for City Council on this subject for its July 7, 1998 meeting (copy attached for ease of reference).

On October 17, 1998, Councillor Blake Kinahan 'e-mailed' me, with the following two questions arising from the City Solicitor's July 7, 1998 report:

"1.Are the proposed amendments to Manitoba's Highway Traffic Act ultra vires?

2.Is the interpretation of s. 489(2)(b) of the Criminal Code in the July 7, 1998 report too cautious? Why not seize the car, hold it for a few days or a week and then return it "as soon as is practicable" - after ownership is established? If the person objects he can take us to court to get his car back earlier. What would his possible damage claim be - the rental cost of a car for a day or two?"

Discussion:

Question 1: Are the proposed amendments to Manitoba's Highway Traffic Act ultra vires?

As previously discussed in the City Solicitor's July 7, 1998 report to City Council, other than the Bill39 amendments in Manitoba, no existing Federal or Provincial legislation permits such seizures in Ontario or any other Canadian Province. The Manitoba amendments have not yet been proclaimed, and have not been subjected to a constitutional challenge. Thus the constitutionality of Manitoba's amendments must be considered in the abstract, without details of application or practice, and in the absence of regulations.

The constitutionality of the Manitoba amendments must first be analysed in terms of the classic "division of powers" doctrine, and second, with respect to the law developed under the Canadian Charter of Rights and Freedoms ("the Charter").

(A)Division of Powers:

In Canada, the power to make laws in relation to criminal matters is a Federal responsibility, (Constitution Act, 1867, s. 91(27)). If the Manitoba amendments are considered to be in their "pith and substance" criminal law, they would be ultra vires the Province.

However, Provinces have the power to make laws in relation to property and civil rights, and matters of a local or private nature (Constitution Act, 1867, ss. 92(13) and 92(16)). Provinces may also impose "punishment by fine, penalty, or imprisonment" for the purpose of enforcing otherwise valid Provincial laws (Constitution Act, 1867, s. 92(15)). If the Manitoba amendments fall into one of these categories in "pith and substance" they may be found by a Court to be constitutionally valid under the division of powers doctrine.

(i)Property and Civil Rights:

In 1923, the Supreme Court of Canada upheld Provincial legislation closing "disorderly houses" following Criminal Code convictions for gambling or prostitution, on the basis that these laws related to the control and use of property (Bedard v. Dawson, [1923] S.C.R. 681). In the 1941 the Egan case, the Supreme Court confirmed that the Provincial power over property and civil rights included highways and streets, and upheld the constitutionality of a provincially-mandated driver's license suspension following a Criminal Code conviction for driving while impaired (Provincial Secretary P.E.I. v. Egan [1941] S.C.R. 396).

Similar Ontario legislation, mandating vehicle seizure following a drunk driving conviction, had been upheld by the Ontario Court of Appeal on the basis that "a provision for the impounding of a motor vehicle is not criminal legislation" under those circumstances (Mcdonald v. Down [1939] 2 D.L.R. 177 (Ont. H.C.) affirmed (1939) 75 C.C.C. 444 (Ont. C.A.)).

Although Egan and Mcdonald suggest that in some circumstances, provincial legislation authorizing motor vehicle seizure and impoundment may be intra vires, this would be difficult to apply to the Manitoba amendments. The key factor in all three cases discussed above was that the provincial legislation mandated administrative action following a Criminal Code conviction, while the Manitoba amendments authorize seizing and impounding an accused's motor vehicle prior to conviction, simply upon his being charged with a specific type of criminal offence.

Thus, no direct line of authority supports the constitutionality of the Manitoba amendments under the doctrine of division of powers, and indeed, the cases suggest that the Manitoba amendments would not meet the constitutionality test on this basis. It is therefore not possible to state with confidence that the Manitoba amendments are intra vires, and this issue will ultimately have to be decided by the Courts.

(ii)Provincial Power to Enact Penal Laws:

The Provincial power to make penal laws has been found constitutional only in circumstances where the main subject matter of the legislation was an area already within the provincial sphere, and the punishment was solely to enforce this already-valid legislation. Similarly, to be valid, municipal by-laws must be within a valid area of municipal authority, under the Provincial legislation governing municipal powers, and that Provincial legislation itself must not encroach into the Federal sphere.

This is best illustrated by the 1983 striking down by the Supreme Court of Canada of a City of Calgary by-law creating a municipal offence of "being on the street for the purposes of prostitution". The Court held that a Province or a municipality cannot indirectly attack prostitution through the vehicle of a by-law on "street control", when it was clear from the language of the enactment that the true subject matter of the by-law was the already-established criminal law area of prostitution. The Court commented further that "however desirable it may be for the municipality to control or prohibit prostitution, there [was] an overreaching in the case which offend[ed] the division of powers" (Westendorp v. The Queen [1983] 1 S.C.R. 43).

Therefore, punitive enactments by a Province which link consequences to prostitution will not be found within the legislative competence of the Provincial legislature. This would appear to include the Manitoba amendments, although of course the matter will have to be decided by a Court.

(B)The Charter:

Even were the Manitoba amendments found valid on the basis of division of powers, as discussed above, the proposed legislation would also have to pass Charter scrutiny to be constitutionally valid.

Section 8 of the Charter protects Canadians from "unreasonable search or seizure". This has been interpreted by the Supreme Court to provide a broad and general right going far beyond the mere retention of property. The purpose of the right, according to the Supreme Court, is to protect the privacy of the individual, and for this reason the right is to be interpreted in a broad and liberal manner (Hunter v. Southam Inc. (1984), 14 C.C.C. 97 (S.C.C.)).

Section 8 rights apply to the seizure of motor vehicles (Brazier v. Vancouver (City), (1997) 32 M.V.R.(3d) 146 (B.C.C.A.)). However, in Brazier, the Court found that the Charter right was not violated by a legislative scheme of towing away illegally parked motor vehicles.

Similarly, the seizure of a motor vehicle to protect public safety, where the driver had been stopped for being disqualified, was acceptable (R. v. Werhun (1991), 62 C.C.C.(3d) 440 (Man. C.A.)).

Thus, not all seizures of motor vehicles are invalidated by section 8 of the Charter. However, valid seizures are those made pursuant to clearly valid legislation within the authority of its maker, the approach is systematic and non-discriminatory, and the privacy violation is minimal under all the circumstances, or there is an overriding, immediate, public safety exception to these criteria. Otherwise, it is to be expected that the section 8 safeguards would protect the citizen from seizure of his motor vehicle pursuant to Provincial legislation or municipal by-law. This would be the case even if the citizen has been accused of a crime, since under the federal criminal law power the seizure provisions of the Criminal Code, rather than any Provincial legislation, would apply.

The Manitoba amendments do not appear to satisfy the criteria outlined by the Courts for legislation to be valid under section 8 of the Charter, and may well be found unconstitutional by the Courts on that ground as well as on the basis of division of powers (as discussed above).

Question 2: Is the City Solicitor's July 7, 1998 interpretation of s. 489(2)(b) of the Criminal Code too cautious? Why not seize the car and let the owner go to Court to get it back?

Seizure of property pursuant to s. 489 of the Criminal Code ("Code") is an operational matter within the exclusive jurisdiction of (in Toronto) the Toronto Police Service, pursuant to the Police Services Act. Legal advice in this regard, as in any matter arising under the Code, may be available to the police from the Crown Attorney, but is not ordinarily provided by the City Solicitor. Further, City Council has no authority to interfere with the exercise by the police of their powers under the Code.

As previously stated in the City Solicitor's July 7, 1998 report, section 489(2)(b) of the Code allows a peace officer to seize any thing the officer believes on reasonable grounds has been used in the commission of a criminal or other Federal offence. The following section (489.1) then provides a comprehensive restitution and detention regime for all items so seized, with the focus on return of the article to its owner, if determined, "as soon as practicable" so long as the item's continued detention is not required for further investigation or a court proceeding.

The City Solicitor's July 7, 1998 report also stated that no reported cases document the seizure of a motor vehicle through 489(2)(b), and that, unlike other property, a motor vehicle's owner can be identified without detention of the vehicle. It was also seen as unlikely that the motor vehicle would be required for "further investigation" under the circumstances for which the seizure is sought (prostitution-related "cruising").

Police Officers who commenced using section 489(b) of the Code to seize and detain "johns" cars would be exposing themselves (and the Police Services Board) to a number of potential civil actions. Trespass to property, wrongful detention of property, punishment prior to conviction and abuse of process are only the tip of the iceberg. Under the circumstances contemplated, where the seizure of the motor vehicle is not required for any legitimate criminal law purpose but rather is to fulfill a collateral function, it hard to imagine the Court refraining from awarding punitive damages, in addition to costs, to any successful plaintiff.

Conclusion:

The Manitoba amendments are of doubtful constitutionality. Even if they could be justified under the division of powers doctrine, they may well be successfully challenged under the Charter as creating a wrongful seizure and detention of property in relation to a criminal charge.

The use of s. 489 of the Criminal Code by the police to seize and detain the vehicles of "johns" is an operational matter within the exclusive jurisdiction of the police pursuant to the Police Services Act. City Council likewise has no jurisdiction to intervene. The use of s. 489 in the circumstances contemplated is questionable and may expose the police to a number of civil claims. It would therefore be appropriate for the Chief of Police look into the matter further, and perhaps also seek the advice of the Crown Attorney with respect to the use of s. 489.)

(A copy of the report dated July 7, 1998 from the City Solicitor, referred to in the foregoing transmittal letter, is on file in the office of the City Clerk.)

2

Other Item Considered by the Committee

(City Council on October 28, 29 and 30, 1998, deferred consideration of this Clause to the next regular meeting of City Council to be held on November 25, 1998.)

(City Council on October 1 and 2, 1998, deferred consideration of Item 5(m) of this Clause to the next regular meeting of Council to be held on October 28, 1998.)

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(Clause No. 5(m) of Report No. 9 of the Emergency and Protective Services Committee)

(m)Toronto Police Service - Air Service Business Case.

The Emergency and Protective Services Committee reports having:

(1)recommended to the Budget Committee that the recommendations of the Toronto Police Services Board with regard to the establishment of an Air Service be endorsed;

(2)requested the Chair of the Toronto Police Services Board to report back to the Emergency and Protective Services Committee with a review of the Air Service Business Case submitted by the Chief of Police in sufficient time to include this initiative in the 1999 Operating Budget and that the Committee's Toronto Police Services Board Budget Working Group be directed to work with the Chair of the Toronto Police Services Board and the Board's Review Committee in considering the acquisition of an Air Service as part of the budget process; and

(3)requested the Fire Chief and the Acting General Manager, Toronto Ambulance, to consult with the Toronto Police Service to establish a resource sharing agreement to achieve some of the protocols related to the shared use of the Air Service as discussed by the Chief of Police at the meeting.

(i)a report (August 5, 1998) from Councillor Norman Gardner, Chairman, Toronto Police Services Board, advising that the Toronto Police Services Board on July 16, 1998:

(1)received a report (June 30, 1998) from the Chief of Police recommending that:

(a)the Board approve in principle the establishment of an Air Service; and

(b)the Board approve $1.5 million in the 1999 Services Operating Budget for the establishment of an Air Service;

(2)approved, in principle, the establishment of an Air Service;

(3)established a committee to review the business case submitted by the Chief and:

(a)to explore innovative opportunities for joint corporate sponsorship; and

(b)to consider, as an alternative to the full Air Service program recommended by the Chief, the feasibility of establishing a pilot project utilizing one or two helicopters;

(4)structured the Review Committee as follows: Chairman Gardner as the Committee Chairman, two additional Board members, Deputy Chief Reesor and other appropriate Service staff selected by Deputy Chief Reesor, and

(5)directed that a copy of this report be forwarded to the Emergency and Protective Services Committee for information.

(ii)Communication (June 29, 1998) from Councillor Norman Gardner, Chairman, Toronto Police Services Board, forwarding a report (November 20, 1998) prepared by Dr. Kathryn Asbury, Research Management Consultants Inc. for the Toronto Police Services Board identifying key strategic issues for members of the Toronto Police Services Board and Command officers to assess the potential contribution of helicopters in municipal law enforcement;

(iii)Joint Report (September 1, 1998) from the Fire Chief and the Acting General Manager, Toronto Ambulance, advising the Committee and City Council of the options which may exist with respect to expanding the role of a police helicopter so that it might serve multi-emergency service functions; and

(iv)(July 16, 1998) Brief submitted by the Toronto Police Service entitled "Air Service Business Case" and a video on police helicopters in Toronto.

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The following persons appeared before the Emergency and Protective Services Committee on behalf of the Toronto Police Services Board and gave an audio/visual presentation to the Committee in connection with the foregoing matter:

-Chief of Police David J. Boothby;

-Deputy Chief of Police Steven Reesor;

-Detective Sergeant Brian Raybould; and

-Councillor Norman Gardner, Chairman, Toronto Police Services Board.

Councillor Chris Korwin-Kuczynski, High Park, also appeared before the Emergency and Protective Services Committee in connection with the foregoing matter.

Respectfully submitted,

DENNIS FOTINOS,

Chair

Toronto, September 8 and 11, 1998

(Report No. 10 of The Emergency and Protective Services Committee, including an addition thereto, was adopted, as amended, by City Council on October 28, 29 and 30, 1998.)