Deutsch v. The Queen

Deutsch v. The Queen
Collection
Supreme Court Judgments
Date
1986-07-31
Report
[1986] 2 SCR 2
Case number
17609
Judges
Beetz, Jean; McIntyre, William Rogers; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 17609
Decision Content
Deutsch v. The Queen, [1986] 2 S.C.R. 2
Melvin P. Deutsch Appellant
v.
Her Majesty The Queen Respondent
indexed as: r. v. deutsch
File No.: 17609.
1985: January 31; 1986: July 31.
Present: Beetz, McIntyre, Lamer, Wilson and Le Dain JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Procuring ‑‑ Attempt to procure person to have illicit sexual intercourse with another person ‑‑ Advertisement for secretary/sales assistant ‑‑ Interview indicating job requiring sexual intercourse with clients if necessary to close sales ‑‑ Holding out of large financial rewards ‑‑ No offer of employment made ‑‑ Whether appellant's act or statements constitute attempt to procure rather than mere preparation ‑‑ Whether sexual intercourse contemplated by appellant illicit sexual intercourse within s. 195(1) (a) of the Criminal Code ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 195(1)(a).
Appellant, who was in the business of selling franchises of various kinds, placed advertisements in several newspapers for a secretary/sales assistant. He conducted interviews with three female applicants and with a police officer who posed as an applicant and recorded the interview on a tape recorder. Appellant indicated to the applicants that a secretary/sales assistant would be expected to have sexual intercourse with clients or potential clients of the company where that appeared to be necessary to conclude a contract. He also indicated that a successful secretary/sales assistant could earn as much as $100,000 annually through commission or bonus on the sale of franchises. Appellant did not make an offer of employment to any of the three applicants who became uninterested after hearing the requirements of the position. The police officer, while not made an offer, was told to think it over and let appellant know when she expressed an interest in the position notwithstanding its requirements. At trial, appellant was acquitted of counts of (1) attempting to procure female persons to become common prostitutes and (2) attempting to procure female persons to have illicit intercourse with another person. The Court of Appeal dismissed the appeal from acquittal on the first count, but allowed the appeal with respect to the second and ordered a new trial. Appellant appealed. At issue here are: (1) whether appellant's acts or statements could, as a matter of law, constitute an attempt to procure rather than mere preparation; and (2) whether the sexual intercourse contemplated by appellant would be illicit sexual intercourse within s. 195(1) (a) of the Criminal Code .
Held: The appeal should be dismissed.
Per Beetz, McIntyre, Wilson and Le Dain JJ.: The word "illicit" in s. 195(1) (a) of the Criminal Code must be given the meaning that has been assigned by the weight of judicial opinion to the word "unlawful" in comparable legislative tests‑‑as referring to sexual intercourse not authorized or sanctioned by lawful marriage. The alternative meaning‑‑sexual intercourse prohibited by the criminal law or other enactment of positive law‑‑apart from reducing the scope of the offence of procuring a person to have illicit sexual intercourse with another person so as to make it rarely, if ever, applicable, is not reconcilable with other provisions of the Criminal Code .
The evil to which s. 195(1) (a) is directed is procuring or soliciting, not the actual act of sexual intercourse itself. The provision is parallel to and of the same kind as that in s. 195(1) (d), which makes it an offence to procure a person to become a prostitute although prostitution is not itself a crime. This is true of all the offences created by s. 195. They are directed to conduct which is designed to encourage or promote conduct which itself is not criminal. If fault be found with that legislative policy it is for Parliament to make the necessary changes, not for the court to do so by giving the word "illicit" in s. 195(1) (a) such a restricted meaning as not only to give s. 195(1) (a) a very limited, if not improbable application, but also to restrict very severely the application of other important provisions of the Criminal Code for the protection of girls and women in which the words "illicit sexual intercourse" are used.
No satisfactory general criterion has been, or can be, formulated for drawing the line between preparation and attempt. The application of this distinction to the facts of a particular case must be left to common sense judgment.
The distinction between preparation and attempt is essentially a qualitative one, involving the relationship between the nature and quality of the act in question and the nature of the complete offence, although consideration must be given, in making that qualitative distinction, to the relative proximity of the act in question to what would have been the completed offence, in terms of time, location and acts under the control of the accused remaining to be accomplished.
Relative proximity may give an act, which might otherwise appear to be mere preparation, the quality of attempt. But an act which on its face is an act of commission does not lose its quality as the actus reus of attempt because further acts were required or because a significant period of time may have elapsed before the completion of the offence.
The Court of Appeal's finding, that the offence of procuring a person to have illicit sexual intercourse with another person is not committed unless sexual intercourse actually takes place, was accepted for the purposes of deciding whether appellant's acts could, as a matter of law, constitute the actus reus of an attempt to procure.
If the appellant had the necessary intent to induce or persuade the women to seek employment that would require them to have sexual intercourse with prospective clients, then the holding out of the large financial rewards in the course of the interviews, in which the necessity of having sexual intercourse with prospective clients was disclosed, could constitute the actus reus of an attempt to procure. It would clearly be an important step in the commission of the offence. Before an offer of employment could be made in such circumstances an applicant would have to seek the position, despite its special requirement. Thus such inducement or persuasion would be the decisive act in the procuring. There would be little else that the appellant would be required to do towards the completion of the offence other than make the formal offer of employment. The holding out of the large financial rewards in the course of the interviews would not lose its quality as a step in the commission of the offence, and thus as an actus reus of attempt, because a considerable period of time might elapse before a person engaged for the position had sexual intercourse with prospective clients or because of the otherwise contingent nature of such sexual intercourse.
Per Lamer J.: Agreement with Le Dain J.'s broad definition of "illicit sexual intercouse" was only to the extent that those words were resorted to in s. 195(1) (a) of the Criminal Code . Accepting such a wide definition depended on the fact that an essential ingredient of "procuring" or of "soliciting" under s. 195(1) (a) was that what was being done was done for lucre, gain, or some advantage.
Cases Cited
By Le Dain J.
Considered: R. v. Karn (1909), 20 O.L.R. 91; R. v. Robinson (1948), 92 C.C.C. 223; R. v. Chapman, [1959] 1 Q.B. 100; R. v. Cline (1956), 115 C.C.C. 18; R. v. Ancio, [1984] 1 S.C.R. 225; referred to: H.M. Advocate v. Watson (1885), 13 S.C.(J.) 6, 23 Scot. L.R. 267; Cowan v. Milbourn (1867), L.R. 2 Ex. 230; Attorney General v. Ryan (1957), 91 I.L.T.R. 164; R. v. Turner (1972), 8 C.C.C. (2d) 76; Kelley v. Hart (1934), 61 C.C.C. 364; R. v. Brown, [1947] O.W.N. 419; Haughton v. Smith, [1975] A.C. 476; R. v. Eagleton (1854), Dears. C.C. 376; R. v. Robinson, [1915] 2 K.B. 342; Henderson v. The King, [1948] S.C.R. 226; R. v. Cheeseman (1862), Le. & Ca. 140, 169 E.R. 1337; R. v. White, [1910] 2 K.B. 124; Detering v. The Queen, [1982] 2 S.C.R. 583; R. v. Sorell and Bondett (1978), 41 C.C.C. (2d) 9; R. v. Johnson (1963), 48 Cr.App.R. 25; R. v. Gruba, [1969] 2 C.C.C. 365.
Statutes and Regulations Cited
Act for consolidating and amending the Statutes in England relative to Offences against the Person (U.K.), 9 Geo. 4, c. 31.
Act to consolidate and amend the Statute Law of England and Ireland relating to Offences against the Person (U.K.), 24 & 25 Vict., c. 100.
Act to take away Clergy from the Offenders in Rape or Burglary and for an Order for the Delivery of Clerks Convict without Purgation (Eng.), 18 Eliz., c. 7.
Crimes Act 1908 (N.Z.), No. 32, s. 218.
Crimes Act 1961 (N.Z.), No. 43, s. 149.
Criminal Code, 1892 (Can.), c. 29, ss. 181, 182, 183, 184, 185(a), (b), (g), (h), (i), 187, 189.
Criminal Code, R.S.C. 1906, c. 146, ss. 216(a), 217.
Criminal Code, R.S.C. 1927, c. 36, s. 216(a) (later 216(1)(a)), 211, 212, 213, 214.
Criminal Code, R.S.C. 1970, c. C‑34, ss. 22, 24 , 195(1) (a), (d), 146(1), (2), 150, 151, 152, 153(1)(a), (b), 154, 246.1, 246.2, 246.3.
Criminal Code Amendment Act, 1913 (Can.), c. 13, s. 9.
Criminal Law Amendment Act, 1885 (U.K.), 48 & 49 Vict., c. 69, ss. 2(1), 5.
Criminal Law Amendment Act, 1935 (Ire.), No. 6, s. 2(2).
Sexual Offences Act, 1956, 4 & 5 Eliz. 2, c. 69, s. 19(1).
Authors Cited
Great Britain. Law Commission. Criminal Law: Attempt, and Impossibility in relation to Attempt, Conspiracy and Incitement (Law Com. No. 102), June 25, 1980. In Law Commission Reports, vol. 11. Collected Edition. Abington, Oxon.: Professional Books Ltd., 1979‑80, reprinted 1983.
Meehan, Eugene Rankin. The Law of Criminal Attempt‑‑A Treatise. Calgary: Carswells, 1984.
Stuart, Don. Canadian Criminal Law. Toronto: Cars‑ wells, 1982.
APPEAL from a judgment of the Ontario Court of Appeal (1983), 5 C.C.C. (3d) 41, allowing in part the Crown's appeal from an acquittal by Graburn Co. Ct. J. and ordering a new trial on the charge of procuring females for illicit sexual intercourse. Appeal dismissed.
Melvin P. Deutsch, on his own behalf.
David Doherty, for the respondent.
The judgment of Beetz, McIntyre, Wilson and Le Dain JJ. was delivered by
1. Le Dain J.‑‑This appeal, which involves a charge of attempting to procure a person to have illicit sexual intercourse with another person contrary to s. 195(1) (a) of the Criminal Code , raises two issues: the distinction between attempt and mere preparation, and the meaning of "illicit sexual intercourse".
2. The appeal is from the judgment of the Ontario Court of Appeal on March 17, 1983 setting aside the acquittal of the appellant by Graburn Co. Ct. J. on August 13, 1982 of the charge of attempting to procure a person to have illicit sexual intercourse with another person and ordering a new trial of the appellant on that charge.
I
3. During the period covered by the indictment, which is the three months ending on or about September 3, 1981, the appellant was carrying on a business known as Global Franchises Marketing, which was engaged in selling franchises of various kinds. During this period the appellant placed an advertisement in newspapers in Ottawa, Hamilton and Toronto inviting applications for the position of secretary/sales assistant and conducted interviews with three women who responded to the advertisement and with a police officer who posed as an applicant for the position and recorded the interview on a tape recorder. The advertisement read as follows:
ENJOY TRAVEL
SECRETARY‑‑Sales Assistant to Sales Executive. $600‑‑$800 per month to start plus commission, bonuses, company benefits and expenses. Must be free to travel extensively. Call 746‑2440 ask for Mel.
In the interviews the appellant indicated that a secretary/sales assistant would be expected to have sexual intercourse with clients or potential clients of the company where that appeared to be necessary to conclude a contract. The appellant also indicated that a successful secretary/sales assistant could earn as much as $100,000 per year through commission or bonus on the sale of franchises. The appellant did not make an offer of employment to the three applicants who testified at his trial. After hearing what the position required they said they were not interested and the interviews terminated. Nor did he make an offer of employment to the police officer who posed as an applicant, but when she told him she was interested in the position, despite its requirements, he told her to think it over and let him know.
4. The appellant was tried upon an indictment containing two counts: attempting to procure female persons to become common prostitutes, and attempting to procure female persons to have illicit intercourse with another person. Graburn Co. Ct. J. acquitted the appellant on both counts. He found that the appellant intended that a person hired for the position should have sexual relations with clients or potential clients, but he held, as a matter of law, that the acts or statements of the appellant did not, in the absence of an offer of employment, constitute the actus reus of an attempt to procure. In his opinion they were mere preparation. He accordingly did not find it necessary to decide whether the sexual intercourse contemplated by the appellant would be illicit sexual intercourse within s. 195(1) (a) or make those who engaged in it common prostitutes within s. 195(1) (d), as it then read.
5. The Ontario Court of Appeal (Martin, Houlden and Robins JJ.A.) (1983), 5 C.C.C. (3d) 41, dismissed the appeal from the acquittal on the charge of attempting to procure female persons to become common prostitutes, but allowed the appeal from the acquittal on the charge of attempting to procure female persons to have illicit sexual intercourse with another person and directed a new trial of the appellant on that count of the indictment. The Court held that the trial judge erred in concluding that the acts or statements of the appellant could not, in the absence of an offer of employment, constitute an attempt to procure rather than mere preparation. It held that there was evidence from which the trial judge could have concluded that there was both the mens rea and the actus reus required for an attempt to procure. The Court also held that the sexual intercourse contemplated by the appellant would be illicit sexual intercourse within s. 195(1) (a). The appellant appeals from the judgment of the Court of Appeal with respect to the second count of the indictment.
6. The appellant, who appeared in person on the appeal, expressed his grounds of appeal in several different ways, but in my opinion there are only two issues that require consideration by the Court:
1. Whether the Court of Appeal erred in holding that the acts or statements of the appellant could, as a matter of law, constitute an attempt to procure rather than mere preparation; and
2. Whether the Court of Appeal erred in holding that the sexual intercourse contemplated by the appellant would be illicit sexual intercourse within s. 195(1)(a) of the Code.
II
7. I propose to begin with the consideration of what is meant by "illicit sexual intercourse" in s. 195(1) (a) of the Criminal Code , which, at the relevant time, provided:
195. (1) Every one who
(a) procures, attempts to procure or solicits a female person to have illicit sexual intercourse with another person, whether in or out of Canada,
...
is guilty of an indictable offence and is liable to imprisonment for ten years.
8. Martin J.A., delivering the unanimous judgment of the Court of Appeal, said with reference to the meaning of "illicit sexual intercourse" at p. 52:
"Illicit sexual intercourse" in s. 195(1) (a) merely connotes sexual intercourse with another not authorized by law and it is not necessary for the sexual intercourse procured with another to be in itself criminal: see R. v. Robinson (1946), 92 C.C.C. 223, [1948] O.R. 857, [1949] 2 D.L.R. 531.
9. Various expressions have been used over the years to qualify the sexual intercourse contemplated by certain criminal law prohibitions enacted for the protection of girls and women. The English statute 18 Eliz., c. 7, of 1575‑76 created the offence of "unlawfully and carnally" knowing and abusing any girl under ten years of age. The same offence was contained in the English statute 9 Geo. 4, c. 31, of 1828, as well as the offence of "unlawfully and carnally" knowing and abusing any girl between the ages of ten and twelve. The statute 24 & 25 Vict., c. 100, of 1861, created the offence of procuring a woman or girl under twenty‑one to have "illicit carnal connexion" with any man. Section 2(1) of the Criminal Law Amendment Act, 1885 (U.K.), 48 & 49 Vict., c. 69, made it an offence to procure or attempt to procure any girl or woman under twenty‑one years of age, not being a common prostitute, or of known immoral character, to have "unlawful carnal connexion" with any other person. The Criminal Code, 1892 (Can.), c. 29, used the expressions "illicit connection" (ss. 181, 182, 183, 184), "unlawful carnal connection" (s. 185(a), (g), (h), (i)), "illicit intercourse" (s. 185(b)), and "unlawfully and carnally" (ss. 187, 189). Section 185(a) created the offence, modelled on s. 2(1) of the Criminal Law Amendment Act, 1885, of procuring or attempting to procure any girl or woman under twenty‑one years of age, not being a common prostitute or of known immoral character, to have "unlawful carnal connection" with any other person. The expression "unlawful carnal connection" was retained in the Criminal Code, R.S.C. 1906, c. 146, s. 216(a), as amended by The Criminal Code Amendment Act, 1913 (Can.), c. 13, s. 9, and in the Criminal Code, R.S.C. 1927, c. 36, s. 216(a). The expression "illicit connection" appears in ss. 211, 212, 213 and 214 of the Code of 1927.
10. The word "unlawful" in the statutory contexts referred to above has been treated as synonymous with "illicit" and as referring to sexual intercourse outside of marriage. In H.M. Advocate v. Watson (1885), 13 S.C.(J.) 6, 23 Scot. L.R. 267, the issue was the meaning of "unlawful carnal knowledge" in s. 5 of the Criminal Law Amendment Act, 1885, which created the offence of unlawfully and carnally knowing or attempting to have unlawful carnal knowledge of a girl between the ages of thirteen and sixteen. Lord Craighill, in charging the jury, said that "unlawful carnal knowledge is neither more nor less, where the woman is over thirteen and under sixteen years of age, than carnal knowledge by one who is not her husband."
11. In R. v. Karn (1909), 20 O.L.R. 91 (C.A.), the relevant issue was the meaning of the word "unlawfully" in s. 217 of the Criminal Code, R.S.C. 1906, c. 146, which provided that "Every one who, being the owner or occupier of any premises, or having, or acting or assisting in, the management or control thereof, induces or knowingly suffers any girl under the age of eighteen years to resort to or be in or upon such premises for the purpose of being unlawfully and carnally known by any man" was guilty of an indictable offence. It was contended, as in the case at bar with reference to the word "illicit", that the word "unlawful" meant prohibited by the criminal law or other provision or rule of positive law. The Ontario Court of Appeal unanimously rejected this contention. Osler and Maclaren JJ.A. both quoted the following passage from the judgment of Bramwell B. in Cowan v. Milbourn (1867), L.R. 2 Ex. 230, at p. 236:
It is strange there should be so much difficulty in making it understood that a thing may be unlawful, in the sense that the law will not aid it, and yet that the law will not immediately punish it. If that only were unlawful to which a penalty is attached, the consequence would be that, inasmuch as no penalty is provided by the law for prostitution, a contract having prostitution for its object would be valid in a court of law.
Osler J.A. referred to several sections of the Criminal Code, R.S.C. 1906, c. 146, in which the words "illicit connection" appeared and said at pp. 94‑95:
In these sections the words "unlawful" and "illicit" appear to me to be synonymous and to be used, in describing the act penalised, in the sense of not sanctioned or permitted by law and as distinguished from acts of sexual intercourse which are not regarded as immoral. See the Oxford and the Century Dictionaries, sub verb. "illicit" and "unlawful".
Maclaren J.A., observing that "the context and evil aimed at" would generally throw light on the sense in which the word "unlawful" is used in a particular section of the Code, said at p. 95:
It is frequently used as synonymous with "illicit" or as being simply "not lawful" or "not authorised or permitted by law." Such meanings are given to it as usual ones in the leading dictionaries. Inasmuch as any issue from such intercourse as took place in this instance would undoubtedly be "unlawful," it would not appear to be improper to apply the word to the act itself.
Meredith J.A. said at p. 97:
In my opinion, it is not a necessary ingredient, in the crime with which the accused was charged, that the carnal knowledge should be criminal in its character; it is enough if it be unlawful; and that it was unlawful in that sense is obvious; if the accused were suing to recover money for the use of his "premises" for the purposes to which he permitted them to be put, he would fail because of the unlawful character of the transaction; if the woman sued for an agreed price of her prostitution, she would fail in like manner; if there were issue of the connection, it would be unlawful; indeed, everything connected with and issuing out of the gross immorality, would be unlawful.
12. In R. v. Robinson (1948), 92 C.C.C. 223 (Ont. C.A.), the case which was cited by Martin J.A. in support of his opinion as to the meaning of "illicit sexual intercourse" in s. 195(1) (a), the relevant issue was the meaning of "unlawful" in s. 216(1)(a) of the Criminal Code, R.S.C. 1927, c. 36, which made it a criminal offence for anyone to procure or solicit any girl or woman to have "unlawful carnal connection" with any other person. In rejecting the contention that "unlawful" in that context meant "contrary to law", Laidlaw J.A., with whom Henderson J.A. concurred, said at pp. 225‑26:
"Lawful" means authorized by law. The prefix "un" may mean simply "not", and "unlawful" may be properly used to mean "not authorized by law". It is in that sense that the word is used in s. 216(1)(a) of the Code, and to give to it a different and more restricted meaning in that section, as urged by counsel for the appellant, would defeat the plain intention and purpose of the enactment. The wrong at which that subsection is aimed is the act of a person in procuring or attempting to procure or soliciting any girl or woman to have carnal connection with another person who has no right to engage with her in that act.... The essence of the offence created by the section under consideration is the wrongful act of any person who procures or attempts to procure or solicits any girl or woman to have carnal connection with any other person or persons not authorized by law. The conduct of that person is the criterion by which his or her guilt is to be determined and not the criminality of the result brought about or attempted to be brought about by it.
...
Thus in the present case while the act of carnal connection was not shown to be an act contrary to the criminal law and it does not appear that criminal proceedings would lie in respect of it, nevertheless it was not an act authorized by law and in that sense was "unlawful" within the meaning of that word as used in s. 216(1)(a).
Hogg J.A., who was of the same opinion, quoted at length from the judgment of the Court of Appeal in Karn, supra, and concluded at p. 229 that the word "unlawful" in s. 216(1)(a) "comprises acts which are known and defined as crimes, but embraces, as well, acts which are not contrary to the law in a criminal sense."
13. In Attorney General v. Ryan (1957), 91 I.L.T.R. 164, the Supreme Court of Ireland (Maguire C.J., Kingsmill Moore and Maguire JJ.) had to consider the meaning of the word "unlawful" in s. 2(2) of the Criminal Law Amendment Act, 1935 (Ire.), No. 6, which made it a criminal offence to attempt to have "unlawful carnal knowledge" of a girl who was between fifteen and seventeen years of age. The Court was referred to H.M. Advocate v. Watson, supra. With reference to the meaning of "unlawful", Maguire C.J. is reported as follows at p. 167: "It seemed to his Lordship that a reasonable definition of the offence with which the appellant stood charged was attempting to have carnal knowledge of a female between the age of fifteen and seventeen years, both parties being at the time of the attempt unmarried."
14. In R. v. Chapman, [1959] 1 Q.B. 100, the Court of Criminal Appeal (Devlin, Donovan and Ashworth JJ.) had to consider the meaning of "unlawful" in s. 19(1) of the Sexual Offences Act, 1956, 4 & 5 Eliz. 2, c. 69, which provides: "It is an offence, subject to the exception mentioned in this section, for a person to take an unmarried girl under the age of eighteen out of the possession of her parent or guardian against his will, if she is so taken with the intention that she shall have unlawful sexual intercourse with men or with a particular man." It was contended, as in the other cases to which I have referred, that "unlawful" meant contrary to some enactment of positive law. In rejecting this contention, Donovan J., after referring to the language used in earlier statutes creating sexual offences, said at p. 104:
No great assistance is to be derived for present purposes from the language used in these earlier statutes, except that it does suggest that the word "unlawfully" in relation to carnal knowledge has not been used with any degree of precision. It would be natural, however, for the framers of a statute, in days when the canon law would be more in their minds than today, to refer to any intercourse outside the bond of matrimony as "unlawful"; and for their successors when drafting consolidating Acts simply to repeat the word without a close consideration of its necessity or precise meaning.
We reject the argument that in section 19 of the Act of 1956 the word "unlawful" connotes intercourse contrary to some positive enactment. The argument, at once, prompts the question why, if the intercourse in question is already positively forbidden, section 19 should do it again.... the plain purpose of section 19 is to protect young unmarried girls. That protection would be largely, if not wholly, illusory if in every case it were incumbent on the prosecution to prove that she was taken from her parents for the purpose of intercourse of a kind positively forbidden by some enactment, and not for intercourse not so forbidden. We do not think that such can have been Parliament's intention.
And further with reference to the meaning of "unlawful" Donovan J. said at p. 105:
If the two interpretations suggested for the appellant are rejected, as we think they must be, then the word "unlawful" in section 19 is either surplusage or means "illicit." We do not think it is surplusage, because otherwise a man who took such a girl out of her parents' possession against their will with the honest and bona fide intention of marrying her might have no defence, even if he carried out that intention. In our view, the word simply means "illicit," i.e., outside the bond of marriage. In other words, we take the same view as the trial judge. We think this interpretation accords with the common sense of the matter, and with what we think was the obvious intention of Parliament.
15. Robinson, supra, was followed on the meaning of "illicit" in s. 195(1)(a) of the Code by the majority of the British Columbia Court of Appeal in R. v. Turner (1972), 8 C.C.C. (2d) 76, where McFarlane J.A., with whom Davey C.J.B.C. concurred, said at p. 79: "I am satisfied that the word "illicit" in that section [s. 195(1) (a)] is used in the sense of not being sanctioned or permitted by law and not necessarily in the sense of constituting a criminal offence: vide R. v. Robinson (1948), 92 C.C.C. 223, [1949] 2 D.L.R. 531, [1948] O.R. 857."
16. I am of the opinion that the word "illicit" in s. 195(1) (a) of the Criminal Code must be given the meaning that has been assigned by the weight of judicial opinion to the word "unlawful" in comparable legislative contexts‑‑as referring to sexual intercourse not authorized or sanctioned by lawful marriage. The alternative meaning‑‑sexual intercourse prohibited by the criminal law or other enactment of positive law‑‑apart from reducing the scope of the offence of procuring a person to have illicit sexual intercourse with another person so as to make it rarely, if ever, applicable, is simply not reconcilable with other provisions of the Criminal Code .
17. The evil to which s. 195(1) (a) is directed is procuring or soliciting, not the actual act of sexual intercourse itself. The provision is parallel to, and of the same kind as, that in s. 195(1) (d), which makes it an offence to procure or attempt to procure a person to become a prostitute, although prostitution is not itself a crime. Indeed, this would appear to be true of all the offences created by s. 195. They are directed to conduct which is designed to encourage or promote conduct which is not itself criminal. If fault be found with that legislative policy it is for Parliament to make the necessary changes, not for a court to do so by giving the word "illicit" in s. 195(1) (a) such a restricted meaning as not only to give s. 195(1) (a) a very limited, if not improbable, application, but also to restrict very severely the application of other important provisions of the Criminal Code for the protection of girls and women in which the words "illicit sexual intercourse" are used.
18. It is highly unlikely that Parliament intended, in s. 195(1) (a), which now prohibits the procuring of "a person" to have illicit sexual intercourse with another person, to create an offence that was limited to: (a) procuring a person to have sexual intercourse with a female under the age of fourteen who is not his wife (s. 146(1)); (b) procuring a person to have sexual intercourse with a person who is not his wife, is of previously chaste character and is between fourteen and sixteen years of age (s. 146(2)); (c) procuring a person to commit incest (s. 150); (d) procuring a person to seduce a female person of previously chaste character who is between sixteen and eighteen years of age (s. 151); (e) procuring a person to seduce under promise of marriage an unmarried female person of previously chaste character who is less than twenty‑one years of age (s. 152); (f) procuring a person to have illicit sexual intercourse with a stepdaughter, foster daughter or female ward (s. 153(1)(a)); (g) procuring a person to have illicit sexual intercourse with a female person of previously chaste character and under the age of twenty‑one years who is in his employment or is in a common, but not necessarily similar, employment with him and is, in respect of her employment or work, under or in any way subject to his control or direction or receives her wages or salary directly or indirectly from him (s. 153(1)(b)); (h) procuring a person, being the owner or master of a vessel or a person employed thereon, to seduce or by the exercise of his authority, to have illicit sexual intercourse on board the vessel with a female passenger (s. 154); and (j) procuring a person to commit a sexual assault on another person (ss. 246.1, 246.2 and 246.3). Procuring a person to commit any of the above offences which involve a prohibition of sexual intercourse in certain circumstances, apart from the unlikelihood of its arising in most cases, is already made a criminal offence by s. 22 of the Code. It is highly unlikely that Parliament would have considered s. 195(1) (a) necessary for such a purpose. On this view of the meaning of "illicit sexual intercourse" there would remain, however, the possibility of making it an offence to procure a female person to have sexual intercourse with another person in any of the above situations. This too, however, would severely limit the application of s. 195(1) (a) and in a manner that would appear to be contrary to an earlier expression of legislative intention. For example, limiting the offence created by s. 195(1) (a) to procuring a female person under the age of fourteen years or between fourteen and sixteen years of age to have sexual intercourse with another person (s. 146(1) and (2)) would not only severely limit the extent to which s. 195(1) (a) could apply to the kind of procuring to which it is obviously directed, but would be contrary to the legislative intention earlier evidenced by the removal of the age limit that was formerly in the provision which is now s. 195(1) (a). (Cf. s. 185(a) of The Criminal Code, 1892, referred to above).
19. Finally, giving the word "illicit" the restricted meaning suggested would seriously restrict or compromise the application of the other provisions of the Code for the protection of girls and women in which the words "illicit sexual intercourse" are used. I have referred to three of them: s. 153(1)(a), which makes it a criminal offence to have illicit sexual intercourse with a stepdaughter, foster daughter or female ward; s. 153(1)(b), which makes it a criminal offence for a person to have illicit sexual intercourse with a female person of previously chaste character and under the age of twenty‑one years who is in his employment or is in a common, but not necessarily similar, employment with him and is, in respect of her employment or work, under or in any way subject to his control or direction or receives her wages or salary directly or indirectly from him; and s. 154, which makes it a criminal offence for an owner or master of a vessel or a person employed thereon, to seduce or, by the exercise of his authority, have illicit sexual intercourse on board the vessel with a female passenger. To these may be added the following provisions: s. 166(a), which makes it a criminal offence for a parent or guardian of a female person to procure her to have illicit sexual intercourse with a person other than the procurer; and s. 167, which makes it a criminal offence for the owner, occupier or manager of premises, or one having control thereof or assisting in the management or control thereof, to permit a female person under the age of eighteen to resort to or to be in or upon the premises for the purpose of having illicit sexual intercourse with a particular male person or with male persons generally. Parliament cannot have intended that these offences should be limited to cases in which the resulting sexual intercourse is otherwise prohibited by the Criminal Code . This is particularly unthinkable, for example, of the offence of having illicit sexual intercourse with a stepdaughter, foster daughter or female ward.
20. It may be noted that in s. 146 the Code does not find it necessary to use the word "illicit" to qualify the words "sexual intercourse" where what is specifically prohibited is having sexual intercourse with a female person under the age of fourteen who is not one's wife. It is also of interest to note the change made by New Zealand legislation in the provision which corresponds to s. 195(1)(a) of the Code. Section 218 of the New Zealand Crimes Act 1908 (N.Z.), No. 32, provided: "Every one is liable to two years' imprisonment...who, from motives of lucre, by false pretences, or false representations, or other fraudulent means, procures any woman or girl under the age of twenty‑one years to have illicit carnal connection with any man." It was replaced by s. 149 of the Crimes Act 1961 (N.Z.), No. 43, which reads: "Every one is liable to imprisonment for a term not exceeding five years who, for gain or reward, procures or agrees or offers to procure any woman or girl to have sexual intercourse with any male who is not her husband." This reflects, I think, what has been traditionally and generally understood by the word "unlawful" or "illicit" in this context.
21. For the foregoing reasons I am of the respectful opinion that the Court of Appeal did not err in holding that the sexual intercourse contemplated by the appellant would be "illicit sexual intercourse" within s. 195(1)(a) of the Code.
III
22. I turn now to the question whether the acts or statements of the appellant could, as a matter of law, constitute the actus reus of an attempt to procure a person to have illicit sexual intercourse with another person, contrary to s. 195(1)(a) of the Code. The general provision of the Code defining the constituent elements of an attempt to commit an offence is s. 24, which provides:
24. (1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out his intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.
(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.
23. The issue is whether, if there was the necessary intent, the acts of the appellant were mere preparation to commit the offence of procuring a person to have illicit sexual intercourse with another person or whether any of them was a step in the commission of the offence, and the extent to which that distinction is to turn on the relative remoteness of the act in question from what would have been the completion of the offence. This issue, as s. 24 indicates, is a question of law. The appellant contends that the Court of Appeal erred in holding that one of the acts of the appellant could, if there was the necessary intent, constitute the actus reus of an attempt to procure.
24. The trial judge found that the appellant "intended that the women in question should have sexual relations with prospective customers and clients", but that the acts of the appellant, consisting of the advertisements, the interviews and what was said during the interviews concerning the requirements of the position and the money to be earned, were mere preparation and too remote from the complete offence of procuring to constitute the actus reus of an attempt to procure. He said:
I do not agree with crown counsel that if the accused had offered employment to the women that the full offence of procuring would be made out. While it is unnecessary for me to decide the issue, it would seem to me that if an offer of employment had been accepted by the women, then the full offence of procuring would have been established. I am of the view that had there been an offer of employment to the women in question, then an attempt to procure would have been established by the crown.The placement of the advertisements in the paper cannot, standing by itself, be considered as anything other than mere preparation. It is too remote towards the commission of the offence. Likewise, in my judgment, so is the interview considered solely in the light of the job specifications. An explanation of what the applicant would be required to do does not constitute an attempt to cause or induce a status or act prohibited by Section 195. The professed rewards attendant upon such a status or act cannot in my judgment constitute an act going beyond mere preparation, unless the position was offered to the applican