I. Introduction
Vancouver Police Department’s D.I.S.C. (Deter, Identify, Sex-Trade Consumers) Program has three components:
- stopping the cars of potential sex trade consumers (“johns”) who cruise around prostitution “strolls”, continually stop to talk with a prostitute or who have a prostitute in their car,
- entering personal information and vehicle information into a police data base, which then becomes accessible to other police officers in Vancouver and police in other Lower Mainland municipalities and
- sending a “Dear john” letter to the john’s home address.
The purpose of D.I.S.C. is to focus police attention on johns in order to alleviate the safety and security problems associated with the street sex trade, and its degradation of neighbourhoods.
In August, 1998, the BCCLA sent a draft comment on the D.I.S.C. Program to the Vancouver Police Department. We then met with the VPD to discuss our comments. The VPD released a memorandum written by Constable Russ Mitchell responding to the BCCLA’s concerns. These exchanges, along with advice from BCCLA Board members, prompted a revamping of our views, which are as follows.
II. The Nature of the BCCLA’s Concerns
It is likely that police have the legal authority to stop a car in the above circumstances, in that they may have reasonable grounds to believe that a crime (either “communication for the purposes of prostitution” (CCC, 213) or “procuring a minor”, CCC (212 (4)) is being or has been committed. Once they do stop a car, they can require the driver to produce identification, including a driver’s licence, vehicle registration and insurance documents. They may check CPIC for a number of purposes (e.g., stolen car, outstanding warrant) and they may make a record of any of the information contained in these documents, along with their personal observations. The BCCLA does not, on principled grounds, oppose the police having this authority. Nor are we opposed to the information being used to assist in the investigation of crimes against prostitutes.
However, we do oppose information about the stop being entered on the D.I.S.C. data base, as it currently operates. The collection of this information in a data base instantly available to other police officers in the department and to police from other departments in the Lower Mainland and elsewhere is an unreasonable invasion of the drivers’ right to privacy. Highly pejorative information about behaviour for which the individual was neither arrested nor charged is made widely available within the policing community, and would clearly have an impact on the manner in which the individual is treated by the police should he come in contact with the police in the future. In addition, we are concerned that the data bank’s security protections are not adequate to prevent access by non-police, or that policies on the use of this information (if any) are not sufficient to discourage disclosure by police for purposes inconsistent with the reason for its collection. In short, under the current D.I.S.C. program, the level of potential exposure and stigma which a person undergoes simply because he picked up or talked to an adult prostitute—neither of which are criminal offences—goes far beyond what is warranted by the potential gain in deterring behaviour which is either not criminal, or else is regarded by the courts and society at large as at most a minor offence. Although the behaviour of men who pick up or who continually stop to talk to juvenile prostitutes is more worthy of police attention in investigating crimes involving juvenile prostitutes, the D.I.S.C program is not intended to further a criminal investigation.
The BCCLA also opposes the information being used to send a “Dear john” letter to a man’s home address. It is doubtful that police have the authority to release personal information about an individual stopped under these circumstances, either under the Criminal Code or some other statute. Even though the letter is nominally addressed to the individual, it would be disingenuous to claim that it really was meant to be read by him only. Its effectiveness as a deterrent depends upon the likelihood—and fear—that it will fall into the hands of someone else. Some of the men stopped are married, or have a common law spouse. The consequences of exposure for the man’s marriage and his family and social life could be devastating. And mistakes will inevitably occur: cars will be stopped where the driver was not in fact seeking to pick up a prostitute, but his explanation for being in the area does not satisfy the officer. The consequences of such a mistake could be very serious, and could well lead to civil liability. And for those who are not married, a “Dear john” letter would have little effect as a deterrent.
The police response is that the D.I.S.C. Program is not intended to be a law enforcement tool, but is aimed at addressing the harm caused to communities by street level prostitution by deterring men from cruising around in communities where street prostitutes work, looking for sex for sale.
It is noteworthy that the D.I.S.C. program does not distinguish between adult and juvenile prostitutes. Its stated goal is to “transfer the responsibility of the issues surrounding the sex trade [the harm to communities] onto the sex trade consumer”. This goal is consistent with the general view of the Vancouver Police Department that all sex trade workers are “victims” and that only the johns are truly responsible for their actions. Constable Mitchell puts it this way:
… given the egregious impact of the street level sex trade upon communities, “drivers” (i.e., Johns [sic]) should have essentially no right to privacy while engaged in such practice in a public place. If any participant in the sex trade truly makes a free and voluntary choice to engage in this activity, it is the john—people who are (or should be), as members of society, cognizant of the damage to which they are directly contributing. Any consequences of exposure as a result of their involvement, should be fully borne by them.
The BCCLA does not dispute that when a man picks up a prostitute in a public place or is seen with one in his car, he cannot claim a right to privacy—that is, a right that the police must ignore what they have seen or require a warrant to stop his car. But this argument does not extend to the information which the police collect as a result of stopping the car. Once collected, the information is protected under the Freedom of Information and Protection of Privacy Act and (for the RCMP) the federal Privacy Act, and may not be disclosed except for purposes enumerated in those statutes or some other statute. We submit that neither of these Acts nor any other statute authorizes its disclosure in “Dear john” letters.
The larger and more troubling issue raised by the D.I.S.C. program is that in trying to lessen the harm to communities caused by the street sex trade, police have assumed powers arguably not given them by law. The harm to communities caused by the street sex trade has its roots in the lack of courage of politicians at all levels of government to acknowledge that the problems raised by the sex trade are social and health related, and should be addressed as such. Insofar as the police are not acting to enforce ss. 212 (4) and 213 of the Criminal Code but rather are using the opportunity afforded by the existence of those laws to collect information and then invoking a common law power to maintain good order to justify circulating that information, they are overreaching their authority.
In “the good old days” police performed a variety of community functions for which there was no clear authority in law—such as running undesireable characters out of town or keeping the town drunk away from the tavern—and had the full support of the community in doing so. The “order” part of “law and order” was taken seriously, and few concerned themselves with fundamental democratic rights or questioned the legal authority for such good works.
However, this conception of good policing is problematic in a society in which fundamental rights are taken seriously, and in which we insist that police may not abrogate those rights, even when the result of their actions would be welcomed by most citizens. This is true even when—in fact especially when—the harm is great, the rights violation regarded as minor and the individual viewed as undesirable in some way.
Addressing the problems created by street prostitution is a case in point. There is no question that communities suffer serious harm when the street sex trade moves in. The BCCLA does not dispute the litany of harms outlined in Constable Mitchell’s Memorandum, or attempt to minimize their seriousness. And it is fair to say that men who use street prostitutes are regarded by many as morally reprehensible. Perhaps there ought not be a moral stigma attached to buying sex, but clearly there is. Police in fact play up this dimension of the issue by labelling prostitutes as victims and johns as abusers.
Finally, in using the D.I.S.C. program (making the information widely available to other police and sending “Dear john” letters home) police do not regard the invasion of privacy as a serious one—if it is an invasion at all. Const. Mitchell stresses that johns’ behaviour is carried on in public, that they have no claim to privacy regarding it, and that whatever the consequences, they brought them on themselves.
Even if we grant all this (which we do not), the question is: Do police have the legal authority to circulate information about potential johns and send home “Dear john” letters? Since statute law does not (we would argue) give them this authority, the authority can only come from the common law. Various case law might be cited in support of a common law authority for the D.I.S.C. program, but the BCCLA does not propose to embark on an analysis of the case law. If such an analysis demonstrated that no authority exists in the common law, then that is the end of the question. If, on the other hand, case law supported that authority, we would argue that an unreasonable invasion of the privacy of johns has occurred, and the question must still be asked whether it is justified under section 1 of the Charter. Sections 7 and 8 of the Charter have been interpreted to provide protection against an unreasonable invasion of citizens’ privacy by state agencies.
One of the tests under section 1 is whether the state action minimally impairs the right in question. The BCCLA would argue that johns’ right to privacy is not minimally impaired when police collect and disclose information about non-criminal behaviour in order to deal with the harm to communities caused by street prostitution. We say that the harm to communities caused by street prostitution is better and more appropriately dealt with by regulating the sex trade away from residential and commercial districts. Engaging in prostitution (both buying and selling) is a legal activity. Further, since the “world’s oldest” profession is not going to go away no matter what law enforcement measures are taken, and since it ought not be a crime anyway (at least for adults), a better approach is for the business of prostitution to be decriminalized, street prostitution located away from residential and commercial areas and schools, and regulated by municipal and provincial laws so as to provide greater safety for prostitutes, better health care, counselling and other services.
We are under no illusion that the regulation of prostitution will completely eradicate street prostitution in residential areas—some prostitutes will find regulated areas unsuitable, for a variety of reasons. But then neither will the D.I.S.C. program eradicate street prostitution. The most it can do is to shift some of the street level sex-trade from one community to another as johns and prostitutes react to the level of police presence by trying elsewhere. Unless the police and municipal officials are satisfied with a continual shifting of the business (and all its attendant harms) from one community to another, they are going to have to informally decide on some area where the harm to the community is minimized. This will likely be an industrial area, where the lighting is poor, and where the likelihood of violence to prostitutes is the highest. Not only is this solution unacceptable because of the increased risk of harm to prostitutes, it in effect does just what our preferred solution does but without any of its health, social and safety benefits. Such a “solution” is indefensible on moral grounds, and speaks volumes about the lack of courage of our politicians to deal rationally with the problem.
Although those at the political level should shoulder the bulk of the blame for the harm caused to communities by the street sex trade, the police are not entirely blameless. Given the way society now attempts to deal with prostitution, it tends to be connected with other behaviour in which police have a keen interest: the drug trade, recruiting of juveniles for prostitution, and living off the avails. In addition, it is in the interest of law enforcement objectives to collect as much information as possible about citizens, so long as that information can be stored and retrieved in a usable manner.
We, as a society, must continually try to strike the right balance between legitimate law enforcement objectives and the desire of citizens in a democracy for privacy, the desire to live our lives free of state surveillance. In Canada, we are willing to allow police fairly wide latitude to collect and use information about us where that information is necessary for legitimate law enforcement goals. For example, our privacy laws contain wide discretion for police collection and use of personal information, and we require police to obtain a warrant only for the most invasive of information collecting techniques. However, in that the Vancouver Police D.I.S.C. program allows for the use and disclosure of very sensitive information not for law enforcement objectives but in order to address a harm better addressed in other ways, we judge that the program violates our civil liberties.
