Undercover prostitution sting operation in Nova Scotia survives legal challenge
Judge finds 'no objectionable police conduct' after 27 people arrested in operation called 'John Be Gone'
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An undercover sting operation by Cape Breton Regional Police targeting street level prostitution has survived yet another legal challenge.
Provincial court Judge Brian Williston ruled Wednesday that he found “no objectionable police conduct” that induced an accused to commit the offence of communicating for the purpose of obtaining sexual services.
“I find that the accused has failed to establish on a balance of probabilities that the defence of entrapment has been clearly made out,” said Williston, in confirming the conviction against John Russell Mercer.
Mercer, 73, of Sydney, was one of 27 men charged as part of a police operation dubbed “John Be Gone” that used undercover police officers posing as prostitutes in downtown Sydney.
Some of the accused have already pleaded guilty and were issued $500 fines. Trials for others are to continue later this month and in February.
Defence lawyer TJ McKeough, who represented Mercer, previously challenged the charge by claiming the entire operation was an abuse of process.
Williston previously issued a ruling on that argument in which he upheld the measures employed by police.
“The police actions were a legitimate response to a need to protect society’s most marginalized and vulnerable members in focusing their attention on the men driving the demand,” said Williston, dismissing a claim by Mercer that his charter rights were violated as a result of the investigation.
Mercer then entered a guilty plea and launched another challenge claiming police entrapped him into committing the offence.
Testimony from police during the trial on the entrapment argument indicated the investigation was launched after numerous complaints from the Downtown Sydney Business Association about customers and others being approached by both sex trade workers and johns seeking sexual services.
Williston noted in his most recent decision that as part of a preliminary investigation, police identified upwards of 37 sex workers and more than 50 johns seeking their services working the downtown area.
“With this information, the police began to stop vehicles driven by these individuals to try and disrupt their transactions with sex trade workers,” said Williston, adding police also issued motor vehicle infractions in hopes of deterring the johns from returning to the area.
When it became apparent that police would not get co-operation from the workers to testify, as many expressed a fear about retaliation, Williston said the undercover operation was initiated.
In his decision, Williston explains that news laws governing prostitution were enacted by Parliament after a 2013 Supreme Court of Canada decision.
“The new legislation, for the most part, decriminalizes prostitutes in recognition of their marginalized and vulnerable positions and criminalizes the johns who buy, or attempt to buy, and the pimps and human traffickers who exploit, and profit from, coercing women into the sex trade,”
After reviewing a host of previous court decisions on the issue, Williston said it is clear that police may present an opportunity to commit a crime to persons in a location where it is reasonably suspected that criminal activity is taking place.
In the Mercer case, police undercover officers were positioned in three locations in downtown Sydney for a 10-day period during which they charged 27 individuals.
Williston said in considering the testimony of the undercover officer, Const. Ashley MacDonald, and Mercer, it was clear the officer did not steer any conversation in the direction of sex.
“I can find no fault in relation to the methodology utilized by the undercover police officer in this case,” said the judge.
“The police officer did not initiate the communication for the purpose of prostitution. She simply asked what he was looking for. There was no evidence that the police officer exploited any weakness of the accused. There were no implicit or explicit inducement or threats,” concluded Williston.
McKeough has one more argument left to present to the court.
He served notice Wednesday he will argue that the fine and subsequent criminal record to be incurred by his client amounts to cruel and unusual punishment and infringes on his client’s charter right to be protected from such.
Outside court, McKeough said his client will unlikely be able to travel outside Canada as a result of the conviction and that he must now wait five years for a possible pardon to have the conviction wiped from his record.
McKeough, Mercer, Williston and prosecutor Peter Harrison will all be back in court March 3 for argument on the application.