HALIFAX — A 73-year-old man who says police in Cape Breton subjected him to "public shaming" has lost his initial bid to challenge a charge that he sought sexual services from an undercover cop.
John Russell Mercer was one of 27 men charged Sept. 8, 2015 after Cape Breton Regional Police concluded "Operation John Be Gone," a sting operation that targeted the clients of prostitutes in downtown Sydney.
The accused ranged in age from 26 to 81, though Mercer's lawyer said the average was in the upper 50s.
Provincial court Judge Brian Williston, in a decision released earlier this week, said Mercer argued the decision by police to stage a news conference to release the names, ages and addresses of accused was equivalent to "locking someone in the stocks."
Mercer argued that the release of his personal information in such a public way amounted to an abuse of the criminal justice process, violating his rights under Section 7 of the Charter of Rights and Freedoms.
"He told the court that his wife and friends found out by 'word of mouth' of his being charged by police when it appeared in the local newspaper," Williston's decision says.
The judge rejected Mercer's argument, saying police have the discretion to release information to the media, so long as it does not jeopardize a fair trial.
"The personal information that was released at the press conference was limited to what was already accessible to the media and the public," the decision says.
Mercer, who told the court he had never before sought the services of a prostitute, also argued that the use of undercover officers was a misuse of the justice system to rectify a small social problem, the judge said.
However, Williston said the use of undercover officers was justified. He said police could not conduct conventional surveillance because local sex trade workers were unwilling to testify for fear of reprisals.
"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 demand," the judge wrote.
A large portion of Williston's 21-page decision highlights changes to the Criminal Code in 2014 that shifted the focus of the law away from criminalizing sex trade workers.
Instead, the law now recognizes that prostitution is inherently exploitative "with great potential for violence from johns and pimps," the decision says.
Prior to the sting operation, police went to great lengths to help 37 sex trade workers by offering them counselling, drug treatment and various exit strategies. And at one point, police enlisted the help of aboriginal elders.
Police Sgt. Jodie Wilson testified that police earned the trust of sex trade workers and encouraged them to identify violent johns. As well, in the 18 months before Operation John Be Gone was launched, johns who frequented the downtown were issued warnings and given second chances.
T.J. McKeough, Mercer's lawyer, said despite the police effort, problems with prostitution persisted.
"So they came up with this hair-brained scheme to just round up as many guys as they could in a few days, have a big press conference and release everyone's names," he said in an interview.
"That why we call it public shaming."
Earlier this week, Mercer pleaded guilty to communicating for the purpose of obtaining sexual services, but his lawyer said a conviction was not entered into the record.
McKeough said he plans to file another challenge, this time arguing that his client was the victim of entrapment.
"It's a much stronger argument," McKeough said in an interview. "The argument is that the police induced these men into the commission of the offence."