Cline, supra, was cited
in Lacusta, [1986] B.C.D. Crim. Conv. 6010-01 (Co.Ct.), where
the accused was acquitted of procuring. Evidence indicated that
at the time of the alleged offence the individual in question was
a prostitute, told the accused she was, and he believed she was
a prostitute.
In Semchyshyn (1986),
43 Man.R. (2d) 18 (Man.C.A.) the Crown unsuccessfully appealed the
accused's acquittal on charges of attempting to procure two females
to become common prostitutes. The females were undercover police
officers who had presented themselves at a massage parlor to apply
for work. The court held that, judging by their dress and conversation,
it was reasonable to infer that the accused believed them to be
prostitutes, and it is a defense if the accused believes the women
to be prostitutes. O'Sullivan J.A. said that "a person cannot become
what she already is." Although the trial judge was held to have
erred in holding that there was no actus reus, the Crown's
case failed because of the accused's honest belief, based on reasonable
grounds, that the police officers were already prostitutes.
Lazaryan (Nov.24, 1994),
22 W.C.B. (2d) 9 (AIta.Prov.Ct.), also relying on Cline, supra,
held that one is not guilty of attempting to procure an undercover
police officer posing as a prostitute. Since she posed as a prostitute
he believed her to be one, and so was not trying to "convert the
unconverted." The fact that the officer could not, in fact, be a
prostitute by reason of her "actual employment" was irrelevant.
According to the W.C.B. summary:
The facts of this case disclosed
nothing more than a case of the accused wanting to become the undercover
officer's pimp, but who accepted rejection with civility and aplomb.
Wishful thinking did not yet constitute an attempt in law.