Prostitution

Prostitution is the practice of exchanging sexual services for money or for other needs such as food and shelter. Although prostitution itself has never been a crime in Canada, communicating and other activities relating to the exchange have been prohibited. Although street-based prostitution is the most visible form and receives the most attention, it represents only a small proportion of the sex industry, which also includes brothels and escort services. There is an ongoing political and social debate about how and whether to decriminalize parts of the trade.

History

Prostitution is not new in Canada's history. Throughout the 1800s, prostitution was organized primarily around brothels. The houses were grouped together, often sharing their neighbourhood with taverns in the poorer parts of cities. In Ottawa and Québec City the brothel districts were in the "lower towns." In Saint John, Halifax, and Kingston they were near the docks. Montréal and Toronto also had districts. The brothels in Saint John and Halifax provided gambling in addition to sex and alcohol, and were some of the most financially successful houses in the first half of the 19th century.

With the development of the transcontinental railways, there was a mass migration westward at the turn of the century. Unlike the early farm families who settled the West, these migrants were mostly single men, either bachelors or husbands who had temporarily left their wives and children at home. This multitude of single men created an environment in which prostitution flourished. Brothels were located close to railway stations. Unless they came to the attention of social or moral reformers, little was done to close them. The authorities were inclined to feel that prostitution had to be tolerated since it could not be eradicated. When the North-West Mounted Police did take action, it was usually for reasons unrelated to prostitution laws, such as complaints about the damaging effect on the population or on the railway construction projects, or evidence that those associated with the brothels were involved in other criminal activities.

Since the 1890s, legal repression made it more difficult to operate brothels, and street-based prostitution became more common. Levels of prostitution increased during the First World War when there was little employment for women. It decreased during the Second World War, perhaps as a result of the greater economic opportunities for women in war-related industries. Immediately following the war, the level of prostitution continued to fall.

Prostitution itself has never been a crime in Canada but various activities relating to the exchange have been outlawed. These include: 1) procuring or living on the avails of prostitution; 2) owning, operating, or occupying a bawdy house; 3) all forms of public communication for the purpose of prostitution; 4) knowingly transporting another to a bawdy house; and, 5) purchasing sexual services from someone less than 18 years old. Statutes prohibiting some of these activities have been in place in Canada for more than 250 years.

Pre-Confederation Era

Legislation controlling prostitution prior to 1867 was in the form of vagrancy laws designed to remove indigents and other undesirables from the streets. The earliest prohibitions made the status of being a prostitute or streetwalker an offense. Disruptive or annoying behaviour was not a prerequisite to detention. Once the status was established, conviction would follow automatically. Both prostitutes and those who ran or frequented common bawdy houses were dubbed vagrants and were liable to prosecution under the law. From all accounts, enforcement during this period was sporadic and unpredictable. Prostitution was likely to be tolerated in port cities, such as Halifax, and on the western frontier. But it was repressed when it was seen as a direct threat to respectable members of the population. Regardless of where and when the laws were enforced, the focus of attention during this early period of Canadian history was the prosecution of women working as prostitutes.

Victorian Era

After Confederation, more complex provisions designed to protect women and children from procurers, pimps and brothel keepers were introduced. In 1867 the new federal government enacted provisions prohibiting the defilement of women under the age of 21. In 1869 the existing vagrancy provisions were expanded to embrace men found to be living on the avails of prostitution.

When the Criminal Code was finalized in 1892, the vagrancy provisions outlawing street walking and bawdy houses were incorporated along with additional offenses directed at bawdy-house operators and procurers of women "for unlawful carnal connection." Provision was also made for securing a search warrant when there was reason to suspect women or girls were being concealed or lured into prostitution. Over the next 28 years, the laws relating to procuring and living on the avails continued to be refined. Some argue these changes came through the work of the national temperance movement and Protestant church organizations. The reformers' objectives were to abolish the "social evil" by punishing exploiters and rescuing women and children from sexual exploitation.

Unfortunately the determination to punish exploiters and rescue women and children did not carry over into practice. After 1895, the entries show more convictions were registered against women than men. Conviction rates for bawdy-house offenses increased as well. But once again the convictions of women significantly outnumbered those of men.

The social purity movement waned in the 1920s, and the sex industry continued with little public comment for the next 50 years.

Rise of Sex Work Advocacy

When public debate was rekindled in the late 1970s and early 1980s, it was prompted by growing concern about the increased visibility of street-based prostitution in residential neighbourhoods. The protests during this period recaptured the social nuisance concerns of the pre-Confederation era. The solutions most groups advocated were simply aimed at strengthening the soliciting section of the Criminal Code. In contrast, civil libertarians, a variety of feminist groups, and prostitutes' rights organizations supported much broader legal and social reform. In large part their concerns echoed those of the Victorian reformers. They called for the criminalization of those seen as exploiting or coercing prostitutes, and a full array of social reforms to eradicate the objective conditions that force people into prostitution. In addition, they wanted the law changed so women and men could work in the sex industry without being subject to criminal offence.

In 1983 a special committee on pornography and prostitution was appointed by the federal government to report on these problems. It recommended strong criminal sanctions against street prostitution but otherwise embraced the need for broad social and legal reforms, including the decriminalization of bawdy houses for up to four persons. Only the former were adopted by the Conservative government of the day.

The prostitution legislation enacted during this period changed the wording of the Criminal Code in four areas. First, street prostitution ceased to be a status offence. The vagrancy provision was repealed and replaced by a communicating offense in 1985. Second, the liability for engaging in prostitution was extended to men, both as prostitutes and as purchasers. Third, the protection of women under the procuring offence was extended to both men and women, and persons of either sex could be charged with procuring and living on the avails of prostitution. Fourth, customers of juvenile prostitutes, and pimps who engage youths, were singled out for more severe sentences in 1988.

Enforcing the new communicating section did not suppress the public debate. It generated criticism from lawyers, prostitutes, civil rights groups and feminists. It was challenged in several provinces on numerous grounds, including its legality under the freedom of expression section of the Canadian Charter of Rights and Freedoms. In 1990, the Supreme Court of Canada ruled [in R. v. Skinner] the communication law violates the constitutional right to freedom of expression. However, it refused to strike the law down because it found such a violation to be justified.

This period also heralded the rise of strong trade advocacy groups. The Canadian Organization for the Rights of Prostitutes (CORP) began in Toronto in 1983 and the Alliance for the Safety of Prostitutes (ASP) was founded in Vancouver in the early 1980s. Even so, contemporary enforcement practices continued to penalize women more often, and more severely, than men. Since levels of street-based prostitution initially plummeted and then quickly rebounded to previous, and even higher levels, questions about the effectiveness of the communicating legislation remained.

Participants

Most prostitution studies focus on the women who work the street, ignoring men who do sex work, men who purchase services, pimps, and the off-street sex industry. Yet field studies show that women represent only a very small proportion of the people involved (estimates based on the ratio of female to male sex workers and the average number of clients served each week indicate that less than five per cent of those involved in communicating for the purpose of prostitution are women).

Police and court-room statistics, as well as clinical and social agency samples suggest that most street-based sex workers are young, single, female, addicted, undereducated, from backgrounds with a history of poverty and abuse, and controlled by pimps. These impressions are only partially corroborated by the field studies conducted for the 1983 federal committee on pornography and prostitution. Most are young (the average age varies from 22 to 25) and began their careers between the ages of 16 and 20. Most are single but 30-70 per cent of the women have children and are supporting them financially.

Findings from field studies indicate that many women work for themselves: 62 per cent in Vancouver, 50 per cent in Toronto, and 69 per cent in Montréal claimed that they worked for themselves. The presence and influence of pimps was more extensive in the Maritimes and on the Prairies.

There is general agreement that prostitution is a hazardous business. Those involved in the selling are at risk from physical assault, sexual assault, theft and sexually transmitted diseases. There is little consensus, however, as to why they are at risk. Some argue it is inherent in the job itself; others insist the danger is inherent in its illegality.

Research on child and adolescent prostitution is limited but public concern over the number of youth involved in prostitution is growing. Unofficial estimates suggest that a significant number of the prostitutes who work the streets and other public places are juveniles. Police statistics indicate otherwise: fewer than five per cent of those charged with prostitution activities are youth, and of those over 80 per cent are young women. The lack of information on customers, pimps and the industry itself underscores the need for more studies on these topics.

Contemporary Era

Since the 1990s the public debate over prostitution has continued, but the concerns and initiatives have changed in tone. Sex worker advocacy groups have taken on a myriad of issues: quelling fears related to HIV/AIDS; developing a charter of rights for sex workers; supporting the migration of sex workers; educating their communities about sex work related issues; and launching programs for decriminalizing sex work and making it safer.

Various levels of government also began revisiting the issue. The procuring and living on the avails sections of the Criminal Code were amended in 1997 to discourage the exploitation of youth and trafficking for the purposes of prostitution. The Federation of Canadian Municipalities also met to discuss a similar set of issues. Several municipalities set-up licensing for escorts and dancers (with all its attendant problems), while others began using municipal bylaws, such as loitering and jaywalking, to control street-based sex workers.

In spite of these initiatives, or perhaps because of them, violence against sex workers increased dramatically in the 1990s, especially against street-based workers. This went on for several years until media attention on the large number of women from Downtown Eastside Vancouver who were reported missing or murdered spawned initiatives to more adequately assess the situation.

Key among these initiatives was the sub-committee struck in February 2003 by the federal Standing Committee on Justice and Human Rights. This sub-committee was to review the solicitation laws in order to improve the safety of sex workers and communities overall, and to recommend changes to reduce the exploitation of and violence against sex workers. In another initiative, Pivot, a Vancouver advocacy group for marginalized populations, released a report charging that the harms experienced by sex workers make the laws surrounding the criminalization of sex work unconstitutional. The report recommended the repeal of these laws to improve the safety of sex workers.

Charter Challenges

In recent years two parallel cases have emerged in the courts, each challenging the constitutionality of Canada's prostitution laws under the Charter of Rights. The BC challenge, spearheaded by a group called Downtown Eastside Sex Workers United Against Violence, alleges that the Criminal Code infringes on the right of sex workers to equality, liberty, security and free expression. The federal government challenged the legal standing of this case on technical grounds, but in 2012 the Supreme Court of Canada said the case could proceed to the trial stage in BC.

A second challenge out of Ontario (Bedford v. Canada) alleges that the Criminal Code prevents prostitutes from operating in a safe and secure environment. In a landmark ruling in 2010, the Ontario Superior Court said laws against keeping a common bawdy house, living on the avails of prostitution, and communicating for the purpose of prostitution (solicitation) violate individual Charter rights to freedom of expression and security of the person, and cannot be saved by the reasonable limits clause of the Charter.

In the same case, the Ontario Court of Appeal later agreed that anti-prostitution laws endanger sex workers. The appeal court said prostitutes would be safer if they had the legal right to operate brothels, and hire security staff for protection. But the court also said the existing law prohibiting solicitation should remain in effect.

The case was appealed to the Supreme Court, which delivered its judgment in December 2013 — striking down all three Criminal Code provisions at issue in the Ontario case. In a unanimous decision, written by Supreme Court Chief Justice Beverley McLachlin, the court affirmed that the practice of trading sex for money is not illegal in Canada. It also said the provisions posed risks to the "health, safety and lives of prostitutes."

Specifically, the court said the prohibition against living on the avails of prostitution, although designed to target the exploitive actions of pimps, instead punishes the "legitimate drivers, managers, or bodyguards" hired by prostitutes to keep them safe. The court also said the law against solicitation, while it serves a useful purpose in dealing with the public-nuisance factor of street prostitution, creates risks for prostitutes by making it difficult for them to screen potential customers for drunkenness or violence.

The landmark decision, although hailed as a victory by certain sex trade workers, was criticized as harmful to women and society by some religious organizations and by the Elizabeth Fry Society, which assists women in the justice system. The Supreme Court said the three Criminal Code provisions would remain valid for one year, during which time Parliament could choose to introduce new laws on prostitution.

Bill C-36

In June 2014 the government introduced Bill C-36 in Parliament. The bill, titled The Protection of Communities and Exploited Persons Act, was passed and became law in November the same year. Although trading sex for money or other needs remains legal under the new legislation, the Act makes illegal various prostitution-related activities that would have been decriminalized if Parliament had not responded to the Supreme Court's decision.

For the first time in Canadian law, the Act criminalizes the buying of sexual services, in an effort to reduce the demand for prostitution. Also for the first time in Canadian law, the Act criminalizes promotion or advertising for the sale of sexual services. Unlike the old crime of solicitation, the new law prohibits communicating anywhere in public for the buying of sex. It only prohibits the selling of sex in certain public places such as near school grounds or playgrounds.

The Act also makes it a crime to receive a financial, or what the law now calls a "material benefit," from the prostitution of others. This offence captures not only pimps who actively recruit people into prostitution, but also for example, employees at strip clubs who do not incite prostitution directly, but who know that prostitution takes place there and benefit financially from it.

In addition, the Act immunizes from prosecution anyone who sells their own sexual services, and advertises or gains a benefit from the sale of their own services, either independently or in a co-operative setting such as a brothel.

In November 2015, the new Liberal government in Ottawa said it was considering changes to the Act in response to some critics who said the new law increased the safety risks for prostitutes, for example, by making it harder for them to screen potential customers before selling their services.