Sollicitation to be criminal has to happen in public....on the street,in a bar,..
Prostitution is define as (in "homme de la rue" terms)paying for sexual gratification.this is why in the Ontario case of HJ in massage parlour the jule ruled in favour of the defendant.
Turning now to the consideration of whether or not Studio 176 was a place of prostitution? The Court of Appeal of Ontario in Regina v. DiGiuseppe [2002] 161 C.C.C. (3d) 427 (Ont. C.A.) held that section 197 and the term prostitution was not so vague as to violate section 7 of the Charter of Rights and Freedoms. Rather, the use of a community standard test was to be applied. This results in courts applying the test and giving meaning to the word prostitution. As necessity, given that it is a community standard test, means that by definition the word is flexible and will change with time. The question then for my consideration is whether or not the fact that as part of the full body massage the act of masturbation was included constitutes prostitution. This is the only activity of what might be described as being of a sexual nature that has been made reference to in this proceeding. It is important to note that the act was not specifically negotiated for but constituted part of the full body massage if a client chose to participate.
[27] To assist in determining what constitutes prostitution I have considered the decision of R. v. DiGiuseppe [2002] O.J. no. 2138. This is the decision of Justice Gorewich, which underlines the Court of Appeal decision of the same name. I have considered this case because the Court of Appeal did not disagree with the analysis of the trial court judge with respect to what constitutes prostitution but only disagreed as to whether or not the definition was unconstitutionally vague or not. Thus it was the trial judge’s conclusion that was disagreed with and not the analysis by the Court of Appeal. As a result, I accept the definition of prostitution as set out by Justice Gorewich in his decision at paragraph 99, which states:
“Two definitions of prostitution are as follows: - the offering of the body to indiscriminate lewdness for hire as per the Oxford dictionary, (3d) 1973, or in the words of the Ontario Court of Appeal in R. v. DiPaola:
“The word involves the offering of a person’s body for the purpose of sexual intercourse or other sexual gratification in return for payment”.”
[28] Considering the facts before me, as I have found them, I am not satisfied when applying the community standard test that the act as described in this proceeding constituted prostitution. I am not satisfied that the Crown has shown the activity, using the community standard test, constitutes acts of sexual gratification in return for the payment of money.
[29] The payment of money as I have found it was for a full body massage. The act of masturbation was optional, at no additional fee. Indeed, I wonder, and am left in a doubt as to whether or not the community might consider the act of masturbation in all situations to be sexual. One only needs to look to the conduct of a certain president of the United States and the response to activity that he participated in to wonder whether or not the act of masturbation is indeed in all circumstances a sexual act. Given that the act was done in private, as part of a massage, participated in voluntarily by all individuals, and a fee was paid regardless of whether or not the act took place, I am not satisfied that the Crown has met its onus and that the conduct constituted prostitution.
CONCLUSION
[30] Given the findings above, I am not satisfied that the Crown has met its obligation and proven its case beyond a reasonable doubt and as such Mr. Ponomarev will be found not guilty of both counts.
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Prostitution is define as (in "homme de la rue" terms)paying for sexual gratification.this is why in the Ontario case of HJ in massage parlour the jule ruled in favour of the defendant.
Turning now to the consideration of whether or not Studio 176 was a place of prostitution? The Court of Appeal of Ontario in Regina v. DiGiuseppe [2002] 161 C.C.C. (3d) 427 (Ont. C.A.) held that section 197 and the term prostitution was not so vague as to violate section 7 of the Charter of Rights and Freedoms. Rather, the use of a community standard test was to be applied. This results in courts applying the test and giving meaning to the word prostitution. As necessity, given that it is a community standard test, means that by definition the word is flexible and will change with time. The question then for my consideration is whether or not the fact that as part of the full body massage the act of masturbation was included constitutes prostitution. This is the only activity of what might be described as being of a sexual nature that has been made reference to in this proceeding. It is important to note that the act was not specifically negotiated for but constituted part of the full body massage if a client chose to participate.
[27] To assist in determining what constitutes prostitution I have considered the decision of R. v. DiGiuseppe [2002] O.J. no. 2138. This is the decision of Justice Gorewich, which underlines the Court of Appeal decision of the same name. I have considered this case because the Court of Appeal did not disagree with the analysis of the trial court judge with respect to what constitutes prostitution but only disagreed as to whether or not the definition was unconstitutionally vague or not. Thus it was the trial judge’s conclusion that was disagreed with and not the analysis by the Court of Appeal. As a result, I accept the definition of prostitution as set out by Justice Gorewich in his decision at paragraph 99, which states:
“Two definitions of prostitution are as follows: - the offering of the body to indiscriminate lewdness for hire as per the Oxford dictionary, (3d) 1973, or in the words of the Ontario Court of Appeal in R. v. DiPaola:
“The word involves the offering of a person’s body for the purpose of sexual intercourse or other sexual gratification in return for payment”.”
[28] Considering the facts before me, as I have found them, I am not satisfied when applying the community standard test that the act as described in this proceeding constituted prostitution. I am not satisfied that the Crown has shown the activity, using the community standard test, constitutes acts of sexual gratification in return for the payment of money.
[29] The payment of money as I have found it was for a full body massage. The act of masturbation was optional, at no additional fee. Indeed, I wonder, and am left in a doubt as to whether or not the community might consider the act of masturbation in all situations to be sexual. One only needs to look to the conduct of a certain president of the United States and the response to activity that he participated in to wonder whether or not the act of masturbation is indeed in all circumstances a sexual act. Given that the act was done in private, as part of a massage, participated in voluntarily by all individuals, and a fee was paid regardless of whether or not the act took place, I am not satisfied that the Crown has met its onus and that the conduct constituted prostitution.
CONCLUSION
[30] Given the findings above, I am not satisfied that the Crown has met its obligation and proven its case beyond a reasonable doubt and as such Mr. Ponomarev will be found not guilty of both counts.
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. The possibilities are endless, but he probably wasn't a cop. Doesn't sound type-A enough.
