Prostitution in Canada
Encyclopedia
In Canada
, the buying and selling of sexual services are not illegal, but most surrounding activities, such as public communication for the purpose of prostitution
, brothels and procuring
are outlawed.
While the prohibition of the activities surrounding the sex trade makes it difficult to practice prostitution without breaking any law, the act of exchanging sex for money has never been illegal in Canada, a situation which has created and continues to create confusion and controversy.
The prostitution laws have been largely unchanged since the early 19th century despite frequent commissions, studies and constitutional challenges since the introduction of the Canadian Charter of Rights and Freedoms
in 1982.
There is a general agreement that the status quo
of prostitution in Canada is problematic but there is no consensus on what should be done. There is an ideological disagreement between those who want to see prostitution eliminated, generally because they view it either as an exploitative and unacceptable part of society, and those who view prostitution as a transaction between consenting adults and advocate decriminalization
.
The current Conservative government
is in favour of stronger sanctions, having rejected recommendations from the 2006 parliamentary committee for reform, an agenda which had been a matter of discussion since the 1985 Fraser report.
. The first recorded laws dealing with prostitution were in Nova Scotia
in 1759. Following Canadian Confederation
, the laws were consolidated in the Criminal Code. These dealt principally with pimping, procuring, operating brothels and soliciting. Most amendments to date have dealt with the latter, originally classified as a vagrancy offence, this was amended to soliciting in 1972, and communicating in 1985. Since the Charter of Rights and Freedoms became law, the constitutionality of Canada's prostitution laws have been challenged on a number of occasions.
The activities related to sex work that are prohibited by law include operating a premise (sexual services establishment or brothel
) where such activities take place, being found in such an establishment, procuring
for such purposes, or communicating such services (soliciting) in a public place are illegal, making it difficult to engage in prostitution without breaking any law. Automobiles are considered public space if they can be seen. Canada is a federation, but criminal law
is a federal jurisdiction. On the other hand working as an independent sex worker and private communication for such purposes (e.g. telephone, internet, e-mail) is legal. This ambivalence can cause confusion
leading to one judge referring to the laws as 'Alice-in-Wonderland'
and the Chief Justice of the Supreme Court as "bizarre".
'Prostitution' is not defined in Canadian statute law, but is based on case law
which deems that 3 elements are necessary to establish that prostitution is taking place - (i) provision of sexual services, (ii) the indiscriminate nature of the act (soliciting rather than choosing clients), and (iii) the necessity for some form of payment.
makes unlawful the following:
183 (a) xxxiv-xxxviii Offences
Provides for prostitution related offences to be included under authorisation to intercept communication.
PART VII DISORDERLY HOUSES, GAMING AND BETTING (Sections 197-213)
197 Definitions
“common bawdy-house” means a place that is
(a) kept or occupied, or
(b) resorted to by one or more persons
for the purpose of prostitution or the practice of acts of indecency;
“disorderly house” means a common bawdy-house, a common betting house or a common gaming house;
“place” includes any place, whether or not
(a) it is covered or enclosed,
(b) it is used permanently or temporarily, or
(c) any person has an exclusive right of user with respect to it;
“prostitute” means a person of either sex who engages in prostitution;
“public place” includes any place to which the public have access as of right or by invitation, express or implied.
Bawdy-houses (Sections 210-1)
Keeping common bawdy-house
declared invalid by the Ontario Superior Court - under appeal
210. (1) Every one who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. (Amended to 5 years, 2010)
Landlord, inmate, etc.
(2) Every one who
(a) is an inmate of a common bawdy-house,
(b) is found, without lawful excuse, in a common bawdy-house, or
(c) as owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or control of any place, knowingly permits the place or any part thereof to be let or used for the purposes of a common bawdy-house,
is guilty of an offence punishable on summary conviction.
Notice of conviction to be served on owner
(3) Where a person is convicted of an offence under subsection (1), the court shall cause a notice of the conviction to be served on the owner, landlord or lessor of the place in respect of which the person is convicted or his agent, and the notice shall contain a statement to the effect that it is being served pursuant to this section.
Duty of landlord on notice
(4) Where a person on whom a notice is served under subsection (3) fails forthwith to exercise any right he may have to determine the tenancy or right of occupation of the person so convicted, and thereafter any person is convicted of an offence under subsection (1) in respect of the same premises, the person on whom the notice was served shall be deemed to have committed an offence under subsection (1) unless he proves that he has taken all reasonable steps to prevent the recurrence of the offence.
Transporting person to bawdy-house
211. Every one who knowingly takes, transports, directs, or offers to take, transport or direct, any other person to a common bawdy-house is guilty of an offence punishable on summary conviction.
Procuring
212. (1) Every one who
(a) procures, attempts to procure or solicits a person to have illicit sexual intercourse with another person, whether in or out of Canada,
(b) inveigles or entices a person who is not a prostitute to a common bawdy-house for the purpose of illicit sexual intercourse or prostitution,
(c) knowingly conceals a person in a common bawdy-house,
(d) procures or attempts to procure a person to become, whether in or out of Canada, a prostitute,
(e) procures or attempts to procure a person to leave the usual place of abode of that person in Canada, if that place is not a common bawdy-house, with intent that the person may become an inmate or frequenter of a common bawdy-house, whether in or out of Canada,
(f) on the arrival of a person in Canada, directs or causes that person to be directed or takes or causes that person to be taken, to a common bawdy-house,
(g) procures a person to enter or leave Canada, for the purpose of prostitution,
(h) for the purposes of gain, exercises control, direction or influence over the movements of a person in such manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution with any person or generally,
(i) applies or administers to a person or causes that person to take any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower that person in order thereby to enable any person to have illicit sexual intercourse with that person, or
(j) lives wholly or in part on the avails of prostitution of another person, declared invalid by the Ontario Superior Court - under appeal
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
Living on the avails of prostitution of person under eighteen
(2) Despite paragraph (1)(j), every person who lives wholly or in part on the avails of prostitution of another person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of two years.
Aggravated offence in relation to living on the avails of prostitution of a person under the age of eighteen years
(2.1) Notwithstanding paragraph (1)(j) and subsection (2), every person who lives wholly or in part on the avails of prostitution of another person under the age of eighteen years, and who
(a) for the purposes of profit, aids, abets, counsels or compels the person under that age to engage in or carry on prostitution with any person or generally, and
(b) uses, threatens to use or attempts to use violence, intimidation or coercion in relation to the person under that age,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years but not less than five years.
Presumption
(3) Evidence that a person lives with or is habitually in the company of a prostitute or lives in a common bawdy-house is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution, for the purposes of paragraph (1)(j) and subsections (2) and (2.1).
Offence — prostitution of person under eighteen
(4) Every person who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years and to a minimum punishment of imprisonment for a term of six months.
Offence in relation to prostitution
213. (1) Every person who in a public place or in any place open to public view
(a) stops or attempts to stop any motor vehicle,
(b) impedes the free flow of pedestrian or vehicular traffic or ingress to or egress from premises adjacent to that place, or
(c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person declared invalid by the Ontario Superior Court - under appeal
for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction.
Definition of “public place”
(2) In this section, “public place” includes any place to which the public have access as of right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view.
PART XIV JURISDICTION (Sections 468-492)
Sections 487.04 and 487.055 allow the ordering of a DNA test
Section 490.011 allows those convicted of crimes relating to prostitution to be entered onto the Sex Offender Register.
PART XVI COMPELLING APPEARANCE OF ACCUSED BEFORE A JUSTICE AND INTERIM RELEASE (Sections 493-534)
Judicial Interim Release
Section 515 allows a justice to release an accused on an undertaking on conditions. In practice this has meant imposing boundary restrictions on the accused, so that they may be excluded from designated neighbourhoods. Breach of the condition is may be subject to imprisonment.
on August 4, and thus became law. This makes keeping a bawdy house a "serious offence" and therefore subject to 5 years imprisonment.
The Opposition were quick to challenge such a move, which bypassed parliamentary debate and tried to have the matter referred to the Public Safety Committee.
in 1982 allowed for the provision of challenging the constitutionality of laws governing prostitution in Canada
in addition to interpretative case law. Other legal proceedings have dealt with ultra vires
issues (whether a jurisdiction, such as a Provincial Government or municipality, has the powers to legislate on the matter).
In 1990, the Supreme Court of Canada
upheld the law which bans public solicitation of prostitution, arguing that the law had the goal to abolish prostitution, which was a valid goal. Reference re ss. 193 and 195.1 of Criminal Code, (the Prostitution Reference
), [1990] 1 S.C.R. 1123 is a decision of the Supreme Court of Canada
on the right to freedom of expression under section 2(b)
of the Canadian Charter of Rights and Freedoms
, and on prostitution
. The Court held that, although the criminal code provision that prohibited communication for the purpose of engaging in prostitution was in violation of the right to freedom of expression, it could be justified under section 1
of the Charter and so it was upheld. The majority found, with a 5:2 split and both women dissenting that the purpose of eliminating prostitution was a valid goal, and that the provision was rationally connected and proportional to that goal. Accordingly, the provision was upheld. However this provision is again under challenge following the decision of the Ontario Court in Bedford v. Canada
in 2010, which was heard by the appeal court in 2011.
In 1997 they reported a sharp increase in the number of prostitution-related incidents recorded by police for 1995, following two years of decline. Since these are police figures they are just as likely to reflect enforcement rather than actual activity.
The report also stated that in the period 1991-5, 63 known prostitutes were murdered (5% of all women killed in Canada).
Separate reports have not been published since, but included in Crime Statistics in Canada. Data from the 2007 report show 5,679 offences in 2006 (17/100,000 population), and 4,724 in 2007 (14). This translates into a change in -17.6% between 2006 and 2007, and -27.6% between 1998 and 2007.
About 10% to 33% of all prostitutes have been estimated to work primarily outside, and are thus more visible.
The 2006 Subcommittee on Solicitation estimated 5-20%.
According to some estimates, most sex workers are young women (average 22-25), who began working between 16 and 20, most are single, and estimates of the number of prostitutes who have children suggest this is between 30-70%. In some field studies, 62% of prostitutes in Vancouver, 50% in Toronto, and 69% in Montréal claimed that they worked for themselves, while the presence and influence of pimps was more extensive in the Maritimes
and on the Prairies. Drug use has been found to vary substantially by region and gender: it is highest in the Atlantic provinces, lowest in Québec, and appears to be a problem for the men more than the women. However, all these figures need to be interpreted with caution and compared to the general population.
A 1998 poll suggested 7% of Canadian men have paid for sex at least once in their life.
This may be lower than in the United States
where in 1994 18% of men stated they had paid for sex
and 15% in 2004.
However these polls cannot be directly compared.
may be connected to other illegal activities such as drug addiction, pimping, and criminal gangs. While authorities may "close their eyes" to escort or dating services, "massage parlors", "holistic centers", or "saunas" which may be fronts for prostitution, street prostitution is considered a more serious problem because of its visibility leading to citizen action. Prostitution is more common in big cities than in small towns or rural places.
Nearly all law enforcement of the anti-prostitution laws concerns the people involved in street prostitution, with the other forms of prostitution being virtually ignored. The enforcement generally focuses on the prostitutes, and not on their customers.
The STAR project showed that relocation to poorly-lit underpopulated areas reduced unwelcome attention by police and residents but increased the likelihood of 'bad dates'.
Displacement and relocation also isolates sex workers from agencies and social and health services who have reported difficulty reaching street workers because of this section. Camaraderie and mutual protection (spotting) are important to sex workers' health and safety; when they are isolated they are removed from sources of information on clients, and health and safety information.
Another issue is that section 213 places sex workers in greater risk of violence when they have to conduct negotiations with clients quickly in order to avoid police attention. Negotiation with clients is crucial in assessing the risk of danger. Hurried discussions initially may undermine the sex worker's bargaining position, making them more vulnerable.
An examination of the statistics on section 313 shows both gender and role imbalance in prosecution and sentencing. Women, who are in the majority, receive higher conviction rates and harsher sentences than male workers, clients or third parties. In 2003-4, 68% of women were found guilty once charged compared to 30% for men.
due to poor socio-economic conditions in the Downtown Eastside
, and the murder of a large number of women working in the sex trade, a disproportionate number of whom were aboriginal
. The authorities here have been more tolerant of prostitution leading some people to believe that some forms of prostitution are legal in the city. "Body rub parlours" may be establishments in which sex work takes place, which would be illegal under bawdy house and communicating laws. Vancouver's milder climate may favour street prostitution. However sex workers and their support services in Vancouver have been very organised and vocal in responding to media criticisms.
They have an uneasy relationship with the police.
British Columbia has also been the area of Canada where most research has been carried out.
The Robert Pickton
murder of sex workers from the downtown eastside of Vancouver in the 1990s and subsequent trials focussed national attention on the safety of sex workers under current legislation, which eventually led to court cases
challenging the constitutionality of those laws. In 2011 a public inquiry into missing and murdered women again drew attention to the interaction between safety and legislation.
, and that Vancouver's overall prevalence of HIV
was about 1.21%, six times higher than the national rate. Dr. Patricia Daly, chief medical health officer for Vancouver Coastal Health
, was quoted as saying "Our message has always been that you should assume sex trade workers are HIV
positive". This remark was criticised as offensive and inaccurate. Subsequent correspondence showed this figure to be misleading. The data actually represented injectable drug users
attending health services. With more health related problems in middle age groups
Saskatchewan
's HIV
problems have received some publicity when health authorities blamed injectable drug users (IDU) and street sex workers in 2009. However HIV is uncommon amongst sex workers unless they are also IDUs and the Regina Street Workers Advocacy Project was critical of statements that demonised one group.
, and linking juvenile prostitution to the “procuring” section. In 1995 the Federal-Provincial-Territorial Working Group on Prostitution stated that these provisions “have been ineffective in bringing customers and pimps of youths involved in prostitution to justice.” They reported that charges under these provisions were rare, and that juvenile prostitutes and their clients, continued to be charged under the general summary conviction offence prohibiting street prostitution, as with adults. Enforcement problems resulted from the reluctance of youths to testify against pimps, and the difficulty of apprehending clients.
s could protect the identity of complainants or witnesses under the age of 18. The addition of an offence for obtaining or attempting to obtain the sexual services of a person whom the offender believed to be under 18 was intended to make enforcement of s. 212(4) easier. s. 212(5) then added that evidence that a person was represented to the accused as being under 18 was proof of that belief, in the absence of evidence to the contrary. It was intended that undercover agents rather than minors themselves would be used to detect such offences. C-27 was given Assent in April 1997.
The provinces then expressed concerns that convictions would be difficult to obtain because the Crown had to prove the belief of the accused as to the age of the young person, while the working group were unsure about the constitutionality.
has about 500 street prostitutes under the age of 17, while some have claimed that many more children may be involved in indoor prostitution.
However such numbers should be treated with extreme caution (see above).
Approximately 50% to 80% of the child sex trade in British Columbia is carried on in massage parlours, karaoke bars, and “trick pads”; only 20% to 50% of the trade is visible above ground with children being openly solicited on the streets. In smaller BC communities, the sexual exploitation of children is even less visible. It occurs in private homes, back alleys, and parks, at public docks and truck stops, and on fishing boats.
Some adolescents in care had advertised sex for sale on Craigslist
when the erotic services category was still available. Craigslist removed this category on December 18, 2010.
In certain areas of BC, aboriginal youth, who constitute 3-5% of the general population, account for the majority of children working in the sex trade. Estimates of the number of aboriginal sexually exploited youth in BC range from 14% to 60%, a problem blamed on the residential schools.
The Protection of Children Involved in Prostitution Act (February 1999) provided that a child wanting to exit prostitution may access community support programs, but if not could be apprehended by police. They could then be confined for up to 72 hours in a protective safe house
, where they can receive emergency care, treatment, assessment and planning. Customers and pimps can be charged with child sexual abuse and fined up to $25,000, 2 years jail or both.
However in July 2000, the law was ruled unconstitutional. The Provincial Court
determined that it did not respect a child’s legal rights because it lacked the “procedural safeguards” to allow youth the right to answer allegations or seek judicial appeal. But in December the Court of Queen’s Bench
quashed this. Nevertheless the government had already introduced amendments ensuring that when a child is confined they be informed in writing as to why they were being confined, its duration, court dates and the right to legal representation. The child is also given an opportunity to contact Legal Aid
and that they may request court review of the confinement.
Amendments were also made to enable children to receive additional care and support, including extending the confinement period for up to five days and allowing for authorities to apply for a maximum of two additional confinement periods of up to 21 days each.
, evidence was given at a 2008 inquest that hundreds of children, some as young as eight years old, are selling sex to adult men for money, drugs and even food and shelter. It is estimated that 70% of the prostituted girls are Aboriginal
, more than 70% are wards of Child and Family Services, and more than 80% get involved after running away from their placements.
In Toronto
it has been estimated there may be as many as 1,500 minors involved in prostitution.
According to Police statistics only 5% of those charged with prostitution activities are youth, and of those over 80% are young women, though others claim higher figures.
It has been claimed that there are about 10,000 child prostitutes across Canada.
A 2006 ECPAT
report states that while according to Statistics Canada, between 10 and 15 per cent of people involved in street prostitution
are under
18, this figure is viewed by most child advocates as a gross underestimate.
On the other hand doubt has been raised by UNICEF regarding ECPAT's methods.
stated that some children end up in prostitution after running away from home, where they were victims of physical and/or sexual abuse
. The report cited as causes of commercial sexual exploitation of children
factors such as social isolation; low self-esteem; a dysfunctional family where violence and substance misuse were common; neglect; early sexual abuse or other traumatizing experience; dropping out of school; hidden disabilities, including Fetal Alcohol Syndrome-- factors which pushed children into prostitution. Many children had a history of provincial care in a foster or group home, or living on their own, but some youth from well-functioning families had left home after a traumatic event becoming at risk of sexual exploitation once on the street. Some children came from families where prostitution was practiced by other members, or from communities where prostitution was common.
They found that some children were preyed on by pimps who may slowly gain their trust, befriend them and provide them with food, accommodation and clothes before hooking them on drugs and alcohol and forcing them into sexual service. However only a small proportion were found to be controlled in this manner, and older girls frequently introduced younger ones into the trade. Some pimps were considered as boyfriends, the report found. Pimps may use romantic techniques to seduce young girls. Where pimps appeared to be involved in recruitment they worked in areas where young people congregate such as food courts in malls, community centres and schools, preferring unsupervised venues including fast food restaurants and bus stops but also supervised locations including drop-in
programs, group homes, juvenile detention centres, youth shelters and treatment centres.
Runaway children are easily spotted by pimps at the bus and train stations of major Canadian cities.
C-27 (1996) amended s. 7 of the Criminal Code to address this. s. 7(4.1) extended its extraterritorial provisions to 11 sexual and sex-related offences against minors (but does not specify purchase of sex), and applies Canadian law to foreign jurisdictions.
Following enactment of C-27 in 1997, the Department of Justice was involved in the development of the United Nations
’ Optional Protocol to the Convention on the Rights of the Child
on the sale of children, child prostitution and child pornography
, and Canada became a signatory in November 2001 (in force as of January 2002). At the same time C-15 simplified such prosecutions which had previously distinguished between prostitution and other forms of sexual abuse.
In 2009, Joy Smith
introduced Bill C-268, An Act to amend the Criminal Code (minimum sentence for offences involving trafficking of persons under the age of eighteen years). This Bill amended Section 279.01 of Canada’s Criminal Code to create a new offence for child trafficking with a five year mandatory penalty. Bill C-268 has received broad support from stakeholders concerned with human trafficking including law enforcement, victims’ services, First Nations representatives, and religious and secular non-governmental organizations. MP Joy Smith worked with her colleagues across party lines to gain support for the legislation. On September 30, 2009, Bill C-268 received near unanimous support from Conservative, Liberal and NDP parties and was passed by the House of Commons, although opposed by the Bloc Quebecois.
On June 29, 2010, Bill C-268 was granted Royal Assent and became law. The successful passage of a Private Members Bill is rare and it is only the 15th time in the history of the Canada that a Private Members Bill amended the Criminal Code.
Policy development around sex work in Canada is complex, divided across areas of jurisdictions and agencies. Issues that policy making bodies need to deal with include which jurisdiction should exercise powers, and which powers. There is debate on how far a government can go in terms of intruding into private lives, and even whether prostitution is actually a problem or merely part of larger problems.
While the outdoor scene is the most visible and the one most likely to lead to complaints, there is an opinion that actions against them merely move the problem around rather than solve it, and that what harms there are in prostitution derive from public attitudes and inconsistent laws. The legal status has been described as "quasi-legal"
Debate comes from feminists, civil libertarians, politicians and law and order officials. The debates range over morality, constitutional rights and freedoms, and the fact that it is one of the few areas of consensual sexual activity that is still subject to legal control.
The current majority Conservative government supports the prohibition of prostitution. Responding to the 2006 report Prime Minister Stephen Harper
stated "In terms of legalization of prostitution I can just tell you that obviously that's something that this government doesn't favour".
Justice Minister Rob Nicholson
also stated: "We are not in the business of legalizing brothels, and we have no intention of changing any of the laws relating to prostitution in this country.”
Such a move would likely be met with opposition from some feminists and women's organizations who are opposed to prostitution, which they consider to be a form of exploitation of women and of male dominance (see feminist objections to prostitution).
They point out that in Sweden
, Norway
and Iceland
it is illegal to pay for sex (the client commits a crime, but not the prostitute) and argue that countries with a high commitment to gender equality
don't tolerate prostitution. On the other hand other feminists and women's groups see the laws prohibiting sex work as oppressive of the labour of women and argue for their repeal as a basic human rights issue.
Conservative MP Joy Smith
stated she is preparing legislation that would prohibit the purchase of sex.
In response, Vancouver lawyer, Katrina Pacey of PIVOT
has outlined the legal arguments against such an approach.
A 2009 online survey of a representative national sample of 1,003 Canadian adults conducted by Angus Reid
Public Opinion showed that prostitution was considered "morally acceptable" by 42% of Canadians, but there were differences by age and gender. Young people were the most critical of prostitution: only 36% of those aged 18–34 considered prostitution "morally acceptable", compared to 45% of those aged 35–54, and 44% of those older than 55. 29% of women saw prostitution as acceptable, compared to 56% of men.
As in other countries, debates around human trafficking for the purpose of sexual exploitation often dominate the larger debate on prostitution. These debates tend to be highly emotive and controversial.
Several national women's groups, such as the Canadian Association of Sexual Assault Centers and the Native Women's Association of Canada, several provincial groups, including le Centre d'aide et de lutte contre les agressions a caractere sexuelles and L'action ontarienne contre la violence faite aux femmes, several local groups, including La Cles, Vancouver Rape Relief and Women's Shelter, Exploited Voices Educating, University Women's Club, The Aboriginal Women's Action Network, The Asian Women's Coalition Ending Prostitution, are advocating an abolitionist approach to policy.
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, the buying and selling of sexual services are not illegal, but most surrounding activities, such as public communication for the purpose of prostitution
Prostitution
Prostitution is the act or practice of providing sexual services to another person in return for payment. The person who receives payment for sexual services is called a prostitute and the person who receives such services is known by a multitude of terms, including a "john". Prostitution is one of...
, brothels and procuring
Procuring (prostitution)
Procuring or pandering is the facilitation or provision of a prostitute in the arrangement of a sex act with a customer. Examples of procuring include:*trafficking a prostitute into a country for the purpose of soliciting sex...
are outlawed.
While the prohibition of the activities surrounding the sex trade makes it difficult to practice prostitution without breaking any law, the act of exchanging sex for money has never been illegal in Canada, a situation which has created and continues to create confusion and controversy.
The prostitution laws have been largely unchanged since the early 19th century despite frequent commissions, studies and constitutional challenges since the introduction of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
in 1982.
There is a general agreement that the status quo
Status quo
Statu quo, a commonly used form of the original Latin "statu quo" – literally "the state in which" – is a Latin term meaning the current or existing state of affairs. To maintain the status quo is to keep the things the way they presently are...
of prostitution in Canada is problematic but there is no consensus on what should be done. There is an ideological disagreement between those who want to see prostitution eliminated, generally because they view it either as an exploitative and unacceptable part of society, and those who view prostitution as a transaction between consenting adults and advocate decriminalization
Decriminalization
Decriminalization or Decriminalisation is the abolition of criminal penalties in relation to certain acts, perhaps retroactively, though perhaps regulated permits or fines might still apply . The reverse process is criminalization.Decriminalization reflects changing social and moral views...
.
The current Conservative government
Conservative Party of Canada
The Conservative Party of Canada , is a political party in Canada which was formed by the merger of the Canadian Alliance and the Progressive Conservative Party of Canada in 2003. It is positioned on the right of the Canadian political spectrum...
is in favour of stronger sanctions, having rejected recommendations from the 2006 parliamentary committee for reform, an agenda which had been a matter of discussion since the 1985 Fraser report.
History
Canada inherited laws from the United KingdomUnited Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
. The first recorded laws dealing with prostitution were in Nova Scotia
Nova Scotia
Nova Scotia is one of Canada's three Maritime provinces and is the most populous province in Atlantic Canada. The name of the province is Latin for "New Scotland," but "Nova Scotia" is the recognized, English-language name of the province. The provincial capital is Halifax. Nova Scotia is the...
in 1759. Following Canadian Confederation
Canadian Confederation
Canadian Confederation was the process by which the federal Dominion of Canada was formed on July 1, 1867. On that day, three British colonies were formed into four Canadian provinces...
, the laws were consolidated in the Criminal Code. These dealt principally with pimping, procuring, operating brothels and soliciting. Most amendments to date have dealt with the latter, originally classified as a vagrancy offence, this was amended to soliciting in 1972, and communicating in 1985. Since the Charter of Rights and Freedoms became law, the constitutionality of Canada's prostitution laws have been challenged on a number of occasions.
Legal status
While the exchange of sexual gratification for consideration between consenting adults is not illegal, the law prohibits those activities which Parliament deems a threat to public order or offensive to public decency, under the powers given to the federal government.The activities related to sex work that are prohibited by law include operating a premise (sexual services establishment or brothel
Brothel
Brothels are business establishments where patrons can engage in sexual activities with prostitutes. Brothels are known under a variety of names, including bordello, cathouse, knocking shop, whorehouse, strumpet house, sporting house, house of ill repute, house of prostitution, and bawdy house...
) where such activities take place, being found in such an establishment, procuring
Procuring (prostitution)
Procuring or pandering is the facilitation or provision of a prostitute in the arrangement of a sex act with a customer. Examples of procuring include:*trafficking a prostitute into a country for the purpose of soliciting sex...
for such purposes, or communicating such services (soliciting) in a public place are illegal, making it difficult to engage in prostitution without breaking any law. Automobiles are considered public space if they can be seen. Canada is a federation, but criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
is a federal jurisdiction. On the other hand working as an independent sex worker and private communication for such purposes (e.g. telephone, internet, e-mail) is legal. This ambivalence can cause confusion
leading to one judge referring to the laws as 'Alice-in-Wonderland'
and the Chief Justice of the Supreme Court as "bizarre".
“We find ourselves in an anomalous, some would say bizarre, situation where almost everything related to prostitution has been regulated by the criminal law except the transaction itself. The appellants' argument then, more precisely stated, is that in criminalizing so many activities surrounding the act itself, Parliament has made prostitution de facto illegal if not de jure illegal.”, per Dickson CJ at page 44
'Prostitution' is not defined in Canadian statute law, but is based on case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
which deems that 3 elements are necessary to establish that prostitution is taking place - (i) provision of sexual services, (ii) the indiscriminate nature of the act (soliciting rather than choosing clients), and (iii) the necessity for some form of payment.
Provisions of Criminal Code
The Criminal Code of CanadaCriminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
makes unlawful the following:
- owning, managing, leasing, occupying, or being found in a bawdy house, as defined in Section 197 (Section 210) declared invalid by the Ontario Superior Court - under appeal
- transporting anyone to a bawdy house (Section 211)
- procuring or living on the avails of prostitution anyone (Section 212)declared invalid by the Ontario Superior Court - under appeal
- paying for sex with anyone under the age of 18 (Section 212[4])
- communication in a public place for the purposes of prostitution (Section 213)declared invalid by the Ontario Superior Court - under appeal
- and transporting someone (Section 279). This does not specify for any particular purpose, such as sexual exploitation
Canadian Criminal Code C-46
PART VI INVASION OF PRIVACY (Sections 183-196)183 (a) xxxiv-xxxviii Offences
Provides for prostitution related offences to be included under authorisation to intercept communication.
PART VII DISORDERLY HOUSES, GAMING AND BETTING (Sections 197-213)
197 Definitions
“common bawdy-house” means a place that is
(a) kept or occupied, or
(b) resorted to by one or more persons
for the purpose of prostitution or the practice of acts of indecency;
“disorderly house” means a common bawdy-house, a common betting house or a common gaming house;
“place” includes any place, whether or not
(a) it is covered or enclosed,
(b) it is used permanently or temporarily, or
(c) any person has an exclusive right of user with respect to it;
“prostitute” means a person of either sex who engages in prostitution;
“public place” includes any place to which the public have access as of right or by invitation, express or implied.
Bawdy-houses (Sections 210-1)
Keeping common bawdy-house
declared invalid by the Ontario Superior Court - under appeal
210. (1) Every one who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. (Amended to 5 years, 2010)
Landlord, inmate, etc.
(2) Every one who
(a) is an inmate of a common bawdy-house,
(b) is found, without lawful excuse, in a common bawdy-house, or
(c) as owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or control of any place, knowingly permits the place or any part thereof to be let or used for the purposes of a common bawdy-house,
is guilty of an offence punishable on summary conviction.
Notice of conviction to be served on owner
(3) Where a person is convicted of an offence under subsection (1), the court shall cause a notice of the conviction to be served on the owner, landlord or lessor of the place in respect of which the person is convicted or his agent, and the notice shall contain a statement to the effect that it is being served pursuant to this section.
Duty of landlord on notice
(4) Where a person on whom a notice is served under subsection (3) fails forthwith to exercise any right he may have to determine the tenancy or right of occupation of the person so convicted, and thereafter any person is convicted of an offence under subsection (1) in respect of the same premises, the person on whom the notice was served shall be deemed to have committed an offence under subsection (1) unless he proves that he has taken all reasonable steps to prevent the recurrence of the offence.
Transporting person to bawdy-house
211. Every one who knowingly takes, transports, directs, or offers to take, transport or direct, any other person to a common bawdy-house is guilty of an offence punishable on summary conviction.
Procuring
212. (1) Every one who
(a) procures, attempts to procure or solicits a person to have illicit sexual intercourse with another person, whether in or out of Canada,
(b) inveigles or entices a person who is not a prostitute to a common bawdy-house for the purpose of illicit sexual intercourse or prostitution,
(c) knowingly conceals a person in a common bawdy-house,
(d) procures or attempts to procure a person to become, whether in or out of Canada, a prostitute,
(e) procures or attempts to procure a person to leave the usual place of abode of that person in Canada, if that place is not a common bawdy-house, with intent that the person may become an inmate or frequenter of a common bawdy-house, whether in or out of Canada,
(f) on the arrival of a person in Canada, directs or causes that person to be directed or takes or causes that person to be taken, to a common bawdy-house,
(g) procures a person to enter or leave Canada, for the purpose of prostitution,
(h) for the purposes of gain, exercises control, direction or influence over the movements of a person in such manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution with any person or generally,
(i) applies or administers to a person or causes that person to take any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower that person in order thereby to enable any person to have illicit sexual intercourse with that person, or
(j) lives wholly or in part on the avails of prostitution of another person, declared invalid by the Ontario Superior Court - under appeal
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
Living on the avails of prostitution of person under eighteen
(2) Despite paragraph (1)(j), every person who lives wholly or in part on the avails of prostitution of another person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of two years.
Aggravated offence in relation to living on the avails of prostitution of a person under the age of eighteen years
(2.1) Notwithstanding paragraph (1)(j) and subsection (2), every person who lives wholly or in part on the avails of prostitution of another person under the age of eighteen years, and who
(a) for the purposes of profit, aids, abets, counsels or compels the person under that age to engage in or carry on prostitution with any person or generally, and
(b) uses, threatens to use or attempts to use violence, intimidation or coercion in relation to the person under that age,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years but not less than five years.
Presumption
(3) Evidence that a person lives with or is habitually in the company of a prostitute or lives in a common bawdy-house is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution, for the purposes of paragraph (1)(j) and subsections (2) and (2.1).
Offence — prostitution of person under eighteen
(4) Every person who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years and to a minimum punishment of imprisonment for a term of six months.
Offence in relation to prostitution
213. (1) Every person who in a public place or in any place open to public view
(a) stops or attempts to stop any motor vehicle,
(b) impedes the free flow of pedestrian or vehicular traffic or ingress to or egress from premises adjacent to that place, or
(c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person declared invalid by the Ontario Superior Court - under appeal
for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction.
Definition of “public place”
(2) In this section, “public place” includes any place to which the public have access as of right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view.
PART XIV JURISDICTION (Sections 468-492)
Sections 487.04 and 487.055 allow the ordering of a DNA test
Section 490.011 allows those convicted of crimes relating to prostitution to be entered onto the Sex Offender Register.
PART XVI COMPELLING APPEARANCE OF ACCUSED BEFORE A JUSTICE AND INTERIM RELEASE (Sections 493-534)
Judicial Interim Release
Section 515 allows a justice to release an accused on an undertaking on conditions. In practice this has meant imposing boundary restrictions on the accused, so that they may be excluded from designated neighbourhoods. Breach of the condition is may be subject to imprisonment.
Regulations
Section 467.11(4) allows the Government to respond rapidly to organised crime by amending the Criminal Code through Order in Council rather than by parliamentary legislation. A regulation passed on July 13, 2010 was published in the Canada GazetteCanada Gazette
The Canada Gazette is an official publication by the government of Canada that publishes all laws and Orders in Council issued by the government. It also contains other information on things such as hearing and tribunals, proposed changes and any thing else the government feels should be told to...
on August 4, and thus became law. This makes keeping a bawdy house a "serious offence" and therefore subject to 5 years imprisonment.
The Opposition were quick to challenge such a move, which bypassed parliamentary debate and tried to have the matter referred to the Public Safety Committee.
Constitutional and case law
The passage of the Canadian Charter of Rights and FreedomsCanadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
in 1982 allowed for the provision of challenging the constitutionality of laws governing prostitution in Canada
Prostitution in Canada
In Canada, the buying and selling of sexual services are not illegal, but most surrounding activities, such as public communication for the purpose of prostitution, brothels and procuring are outlawed....
in addition to interpretative case law. Other legal proceedings have dealt with ultra vires
Ultra vires
Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...
issues (whether a jurisdiction, such as a Provincial Government or municipality, has the powers to legislate on the matter).
In 1990, the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
upheld the law which bans public solicitation of prostitution, arguing that the law had the goal to abolish prostitution, which was a valid goal. Reference re ss. 193 and 195.1 of Criminal Code, (the Prostitution Reference
Prostitution Reference
Reference re ss. 193 & 195.1 of Criminal Code , , [1990] 1 S.C.R. 1123 is a decision of the Supreme Court of Canada on the right to freedom of expression under section 2 of the Canadian Charter of Rights and Freedoms, and on prostitution in Canada...
), [1990] 1 S.C.R. 1123 is a decision of the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
on the right to freedom of expression under section 2(b)
Section Two of the Canadian Charter of Rights and Freedoms
Section Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada's Charter of Rights that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
, and on prostitution
Prostitution
Prostitution is the act or practice of providing sexual services to another person in return for payment. The person who receives payment for sexual services is called a prostitute and the person who receives such services is known by a multitude of terms, including a "john". Prostitution is one of...
. The Court held that, although the criminal code provision that prohibited communication for the purpose of engaging in prostitution was in violation of the right to freedom of expression, it could be justified under section 1
Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...
of the Charter and so it was upheld. The majority found, with a 5:2 split and both women dissenting that the purpose of eliminating prostitution was a valid goal, and that the provision was rationally connected and proportional to that goal. Accordingly, the provision was upheld. However this provision is again under challenge following the decision of the Ontario Court in Bedford v. Canada
Bedford v. Canada
Bedford v. Canada was a legal challenge to Canada's prostitution laws filed in the Superior Court of Ontario in 2007. The applicants, Terri-Jean Bedford, Amy Lebovitch and Valerie Scott, argued that Canada's prostitution laws were unconstitutional...
in 2010, which was heard by the appeal court in 2011.
Justice Statistics
The Canadian Centre for Justice Statistics report Street Prostitution in Canada (1993) stated that police activity is mainly directed at the street level. Over 10,000 prostitution-related incidents were reported in 1992; 95% communicating offences and 5% bawdy-house and pimping offences.In 1997 they reported a sharp increase in the number of prostitution-related incidents recorded by police for 1995, following two years of decline. Since these are police figures they are just as likely to reflect enforcement rather than actual activity.
The report also stated that in the period 1991-5, 63 known prostitutes were murdered (5% of all women killed in Canada).
Separate reports have not been published since, but included in Crime Statistics in Canada. Data from the 2007 report show 5,679 offences in 2006 (17/100,000 population), and 4,724 in 2007 (14). This translates into a change in -17.6% between 2006 and 2007, and -27.6% between 1998 and 2007.
Other
The exact number of people in sex work is not known, since this cannot be collected reliably. Estimates vary widely, and should be interpreted with caution.About 10% to 33% of all prostitutes have been estimated to work primarily outside, and are thus more visible.
The 2006 Subcommittee on Solicitation estimated 5-20%.
According to some estimates, most sex workers are young women (average 22-25), who began working between 16 and 20, most are single, and estimates of the number of prostitutes who have children suggest this is between 30-70%. In some field studies, 62% of prostitutes in Vancouver, 50% in Toronto, and 69% in Montréal claimed that they worked for themselves, while the presence and influence of pimps was more extensive in the Maritimes
Maritimes
The Maritime provinces, also called the Maritimes or the Canadian Maritimes, is a region of Eastern Canada consisting of three provinces, New Brunswick, Nova Scotia, and Prince Edward Island. On the Atlantic coast, the Maritimes are a subregion of Atlantic Canada, which also includes the...
and on the Prairies. Drug use has been found to vary substantially by region and gender: it is highest in the Atlantic provinces, lowest in Québec, and appears to be a problem for the men more than the women. However, all these figures need to be interpreted with caution and compared to the general population.
A 1998 poll suggested 7% of Canadian men have paid for sex at least once in their life.
This may be lower than in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
where in 1994 18% of men stated they had paid for sex
and 15% in 2004.
However these polls cannot be directly compared.
Street prostitution
Street prostitutionStreet prostitution
Street prostitution is a form of prostitution in which a sex worker solicits customers from a public place, most commonly a street, while waiting at street corners or walking alongside a street, but also other public places such as parks, beaches, etc. The street prostitute is often dressed in a...
may be connected to other illegal activities such as drug addiction, pimping, and criminal gangs. While authorities may "close their eyes" to escort or dating services, "massage parlors", "holistic centers", or "saunas" which may be fronts for prostitution, street prostitution is considered a more serious problem because of its visibility leading to citizen action. Prostitution is more common in big cities than in small towns or rural places.
Nearly all law enforcement of the anti-prostitution laws concerns the people involved in street prostitution, with the other forms of prostitution being virtually ignored. The enforcement generally focuses on the prostitutes, and not on their customers.
Effects of section 213 (communicating)
More than 90% of prosecutions are under section 213 (communicating). Consequently it has become the target of criticism that, while designed to prevent public nuisance, it ignores public safety. In practice, the communication law has not altered the extent of street based sex work, but merely displaced it, often to more dangerous locations.The STAR project showed that relocation to poorly-lit underpopulated areas reduced unwelcome attention by police and residents but increased the likelihood of 'bad dates'.
Displacement and relocation also isolates sex workers from agencies and social and health services who have reported difficulty reaching street workers because of this section. Camaraderie and mutual protection (spotting) are important to sex workers' health and safety; when they are isolated they are removed from sources of information on clients, and health and safety information.
Another issue is that section 213 places sex workers in greater risk of violence when they have to conduct negotiations with clients quickly in order to avoid police attention. Negotiation with clients is crucial in assessing the risk of danger. Hurried discussions initially may undermine the sex worker's bargaining position, making them more vulnerable.
An examination of the statistics on section 313 shows both gender and role imbalance in prosecution and sentencing. Women, who are in the majority, receive higher conviction rates and harsher sentences than male workers, clients or third parties. In 2003-4, 68% of women were found guilty once charged compared to 30% for men.
British Columbia
While sex work exists in all cities, one that has received a large amount of publicity is VancouverVancouver
Vancouver is a coastal seaport city on the mainland of British Columbia, Canada. It is the hub of Greater Vancouver, which, with over 2.3 million residents, is the third most populous metropolitan area in the country,...
due to poor socio-economic conditions in the Downtown Eastside
Downtown Eastside
The Downtown Eastside is one of the oldest neighbourhoods in Vancouver, British Columbia, Canada and is known as "Canada's poorest postal code"....
, and the murder of a large number of women working in the sex trade, a disproportionate number of whom were aboriginal
Aboriginal peoples in Canada
Aboriginal peoples in Canada comprise the First Nations, Inuit and Métis. The descriptors "Indian" and "Eskimo" have fallen into disuse in Canada and are commonly considered pejorative....
. The authorities here have been more tolerant of prostitution leading some people to believe that some forms of prostitution are legal in the city. "Body rub parlours" may be establishments in which sex work takes place, which would be illegal under bawdy house and communicating laws. Vancouver's milder climate may favour street prostitution. However sex workers and their support services in Vancouver have been very organised and vocal in responding to media criticisms.
They have an uneasy relationship with the police.
British Columbia has also been the area of Canada where most research has been carried out.
The Robert Pickton
Robert Pickton
Robert William "Willie" Pickton of Port Coquitlam, British Columbia, Canada is a former pig farmer and serial killer convicted of the second-degree murders of six women. He is also charged in the deaths of an additional twenty women, many of them prostitutes and drug users from Vancouver's...
murder of sex workers from the downtown eastside of Vancouver in the 1990s and subsequent trials focussed national attention on the safety of sex workers under current legislation, which eventually led to court cases
Prostitution in Canada (Constitutional and case law)
The passage of the Canadian Charter of Rights and Freedoms in 1982 allowed for the provision of challenging the constitutionality of laws governing prostitution in Canada in addition to interpretative case law...
challenging the constitutionality of those laws. In 2011 a public inquiry into missing and murdered women again drew attention to the interaction between safety and legislation.
Prostitution and health
A study was reported as showing that 26% of Vancouver's female sex workers were infected with HIVHIV
Human immunodeficiency virus is a lentivirus that causes acquired immunodeficiency syndrome , a condition in humans in which progressive failure of the immune system allows life-threatening opportunistic infections and cancers to thrive...
, and that Vancouver's overall prevalence of HIV
HIV
Human immunodeficiency virus is a lentivirus that causes acquired immunodeficiency syndrome , a condition in humans in which progressive failure of the immune system allows life-threatening opportunistic infections and cancers to thrive...
was about 1.21%, six times higher than the national rate. Dr. Patricia Daly, chief medical health officer for Vancouver Coastal Health
Vancouver Coastal Health
Vancouver Coastal Health is a regional health authority providing direct and contracted health services including primary, secondary, tertiary and quaternary care, home and community care, mental health services, population and preventive health and addictions services in part of Greater Vancouver...
, was quoted as saying "Our message has always been that you should assume sex trade workers are HIV
HIV
Human immunodeficiency virus is a lentivirus that causes acquired immunodeficiency syndrome , a condition in humans in which progressive failure of the immune system allows life-threatening opportunistic infections and cancers to thrive...
positive". This remark was criticised as offensive and inaccurate. Subsequent correspondence showed this figure to be misleading. The data actually represented injectable drug users
Drug injection
In substance dependence and recreational drug use, drug injection is a method of introducing a drug into the body with a hollow needle and a syringe which is pierced through the skin into the body...
attending health services. With more health related problems in middle age groups
Saskatchewan
Saskatchewan
Saskatchewan is a prairie province in Canada, which has an area of . Saskatchewan is bordered on the west by Alberta, on the north by the Northwest Territories, on the east by Manitoba, and on the south by the U.S. states of Montana and North Dakota....
's HIV
HIV
Human immunodeficiency virus is a lentivirus that causes acquired immunodeficiency syndrome , a condition in humans in which progressive failure of the immune system allows life-threatening opportunistic infections and cancers to thrive...
problems have received some publicity when health authorities blamed injectable drug users (IDU) and street sex workers in 2009. However HIV is uncommon amongst sex workers unless they are also IDUs and the Regina Street Workers Advocacy Project was critical of statements that demonised one group.
Prostitution and minors
Child prostitution is illegal, but there are community concerns that it is a growing problem related to homelessness. While expansive claims have been made as to its extent, expert reports conclude that such estimates cannot be relied on. For instance, a 2002 report of the Justice Institute of British Columbia states that "Because of the illicit nature of commercial sexual exploitation, there is no way to accurately measure the number of children and youth being commercially sexually exploited. Estimates of the number of commercially sexually exploited children and youth in BC vary greatly."Federal initiatives
The Criminal Code was amended in 1988 to include child sexual abuseChild sexual abuse
Child sexual abuse is a form of child abuse in which an adult or older adolescent uses a child for sexual stimulation. Forms of child sexual abuse include asking or pressuring a child to engage in sexual activities , indecent exposure with intent to gratify their own sexual desires or to...
, and linking juvenile prostitution to the “procuring” section. In 1995 the Federal-Provincial-Territorial Working Group on Prostitution stated that these provisions “have been ineffective in bringing customers and pimps of youths involved in prostitution to justice.” They reported that charges under these provisions were rare, and that juvenile prostitutes and their clients, continued to be charged under the general summary conviction offence prohibiting street prostitution, as with adults. Enforcement problems resulted from the reluctance of youths to testify against pimps, and the difficulty of apprehending clients.
Bill C-27
The 1996 amendments addressed the Working Group report. Bill C-27 included a new indictable offence of “aggravated” procuring. This applied to pimps who coerce juveniles into prostitution through violence or intimidation, with a mandatory minimum sentence of five years in jail, and a maximum of 14 years. Bill C-27 extended some procedural safeguards to juvenile witnesses appearing in court, entitling them to testify outside the courtroom behind a screen (or on video). Publication banPublication ban
A publication ban is a court order which prohibits the public or media from disseminating certain details of an otherwise public judicial procedure. In Canada, publication bans are most commonly issued when the safety or reputation of a victim or witness may be hindered by having their identity...
s could protect the identity of complainants or witnesses under the age of 18. The addition of an offence for obtaining or attempting to obtain the sexual services of a person whom the offender believed to be under 18 was intended to make enforcement of s. 212(4) easier. s. 212(5) then added that evidence that a person was represented to the accused as being under 18 was proof of that belief, in the absence of evidence to the contrary. It was intended that undercover agents rather than minors themselves would be used to detect such offences. C-27 was given Assent in April 1997.
The provinces then expressed concerns that convictions would be difficult to obtain because the Crown had to prove the belief of the accused as to the age of the young person, while the working group were unsure about the constitutionality.
Bill C-51
In June 1998 C-51 was introduced, changing “attempts to obtain” to “communicates with any person for the purpose of obtaining” to simplify prosecution by removing any need to prove belief of age. Electronic surveillance was also explicitly allowed, and this was assented in March 1999.Provincial and municipal initiatives
In June 1999 provincial and territorial leaders declared child prostitution abuse rather than a crime and agreed to harmonise child welfare legislation. Several provinces and municipalities appointed task forces to implement the child as victim concept. Alberta led the way in this, followed by British Columbia, Saskatchewan, Manitoba, Nova Scotia and Ontario (June 2002).British Columbia
Media reports claim that VancouverVancouver
Vancouver is a coastal seaport city on the mainland of British Columbia, Canada. It is the hub of Greater Vancouver, which, with over 2.3 million residents, is the third most populous metropolitan area in the country,...
has about 500 street prostitutes under the age of 17, while some have claimed that many more children may be involved in indoor prostitution.
However such numbers should be treated with extreme caution (see above).
Approximately 50% to 80% of the child sex trade in British Columbia is carried on in massage parlours, karaoke bars, and “trick pads”; only 20% to 50% of the trade is visible above ground with children being openly solicited on the streets. In smaller BC communities, the sexual exploitation of children is even less visible. It occurs in private homes, back alleys, and parks, at public docks and truck stops, and on fishing boats.
Some adolescents in care had advertised sex for sale on Craigslist
Craigslist
Craigslist is a centralized network of online communities featuring free online classified advertisements, with sections devoted to jobs, housing, personals, for sale, services, community, gigs, résumés, and discussion forums....
when the erotic services category was still available. Craigslist removed this category on December 18, 2010.
Aboriginal children
In certain areas of BC, aboriginal youth, who constitute 3-5% of the general population, account for the majority of children working in the sex trade. Estimates of the number of aboriginal sexually exploited youth in BC range from 14% to 60%, a problem blamed on the residential schools.
Alberta
Alberta's Child Welfare Act (1997) added the purchase of sex from someone under 18 as child abuse, with fines up to $2,000 and/or six months in jail in addition to Criminal Code penalties.The Protection of Children Involved in Prostitution Act (February 1999) provided that a child wanting to exit prostitution may access community support programs, but if not could be apprehended by police. They could then be confined for up to 72 hours in a protective safe house
Safe house
In the jargon of law enforcement and intelligence agencies, a safe house is a secure location, suitable for hiding witnesses, agents or other persons perceived as being in danger...
, where they can receive emergency care, treatment, assessment and planning. Customers and pimps can be charged with child sexual abuse and fined up to $25,000, 2 years jail or both.
However in July 2000, the law was ruled unconstitutional. The Provincial Court
Provincial Court of Alberta
The Provincial Court of Alberta is a Provincial Court for the Canadian province of Alberta. The court oversees matters relating to criminal law, family law, youth law, civil law and traffic laws....
determined that it did not respect a child’s legal rights because it lacked the “procedural safeguards” to allow youth the right to answer allegations or seek judicial appeal. But in December the Court of Queen’s Bench
Court of Queen's Bench of Alberta
The Court of Queen's Bench of Alberta is the superior court of the Canadian province of Alberta....
quashed this. Nevertheless the government had already introduced amendments ensuring that when a child is confined they be informed in writing as to why they were being confined, its duration, court dates and the right to legal representation. The child is also given an opportunity to contact Legal Aid
Legal aid
Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial.A number of...
and that they may request court review of the confinement.
Amendments were also made to enable children to receive additional care and support, including extending the confinement period for up to five days and allowing for authorities to apply for a maximum of two additional confinement periods of up to 21 days each.
Manitoba
In WinnipegWinnipeg
Winnipeg is the capital and largest city of Manitoba, Canada, and is the primary municipality of the Winnipeg Capital Region, with more than half of Manitoba's population. It is located near the longitudinal centre of North America, at the confluence of the Red and Assiniboine Rivers .The name...
, evidence was given at a 2008 inquest that hundreds of children, some as young as eight years old, are selling sex to adult men for money, drugs and even food and shelter. It is estimated that 70% of the prostituted girls are Aboriginal
Aboriginal peoples in Canada
Aboriginal peoples in Canada comprise the First Nations, Inuit and Métis. The descriptors "Indian" and "Eskimo" have fallen into disuse in Canada and are commonly considered pejorative....
, more than 70% are wards of Child and Family Services, and more than 80% get involved after running away from their placements.
Ontario
Ontario's child welfare legislation goes further than Alberta by allowing the province to sue pimps and others who sexually exploit children for profit, in order to recover the costs of treatment and services required by their victims.In Toronto
Toronto
Toronto is the provincial capital of Ontario and the largest city in Canada. It is located in Southern Ontario on the northwestern shore of Lake Ontario. A relatively modern city, Toronto's history dates back to the late-18th century, when its land was first purchased by the British monarchy from...
it has been estimated there may be as many as 1,500 minors involved in prostitution.
Extent
The numbers involved are disputed.According to Police statistics only 5% of those charged with prostitution activities are youth, and of those over 80% are young women, though others claim higher figures.
It has been claimed that there are about 10,000 child prostitutes across Canada.
A 2006 ECPAT
ECPAT
ECPAT is an international non-governmental organisation and network headquartered in Thailand which is designed to end commercial sexual exploitation of children...
report states that while according to Statistics Canada, between 10 and 15 per cent of people involved in street prostitution
Street prostitution
Street prostitution is a form of prostitution in which a sex worker solicits customers from a public place, most commonly a street, while waiting at street corners or walking alongside a street, but also other public places such as parks, beaches, etc. The street prostitute is often dressed in a...
are under
18, this figure is viewed by most child advocates as a gross underestimate.
On the other hand doubt has been raised by UNICEF regarding ECPAT's methods.
Locale
Most child-prostitutes do not work on the streets, but behind closed doors: "You can't have children standing on the corner because they will be spotted immediately. So what pimps and recruiters do is keep them off-street," said Raven Bowen, from Vancouver.Recruitment
A 2002 British Columbia Government reportstated that some children end up in prostitution after running away from home, where they were victims of physical and/or sexual abuse
Child sexual abuse
Child sexual abuse is a form of child abuse in which an adult or older adolescent uses a child for sexual stimulation. Forms of child sexual abuse include asking or pressuring a child to engage in sexual activities , indecent exposure with intent to gratify their own sexual desires or to...
. The report cited as causes of commercial sexual exploitation of children
Commercial sexual exploitation of children
Commercial sexual exploitation of children constitutes a form of coercion and violence against children and amounts to forced labour and a contemporary form of slavery....
factors such as social isolation; low self-esteem; a dysfunctional family where violence and substance misuse were common; neglect; early sexual abuse or other traumatizing experience; dropping out of school; hidden disabilities, including Fetal Alcohol Syndrome-- factors which pushed children into prostitution. Many children had a history of provincial care in a foster or group home, or living on their own, but some youth from well-functioning families had left home after a traumatic event becoming at risk of sexual exploitation once on the street. Some children came from families where prostitution was practiced by other members, or from communities where prostitution was common.
They found that some children were preyed on by pimps who may slowly gain their trust, befriend them and provide them with food, accommodation and clothes before hooking them on drugs and alcohol and forcing them into sexual service. However only a small proportion were found to be controlled in this manner, and older girls frequently introduced younger ones into the trade. Some pimps were considered as boyfriends, the report found. Pimps may use romantic techniques to seduce young girls. Where pimps appeared to be involved in recruitment they worked in areas where young people congregate such as food courts in malls, community centres and schools, preferring unsupervised venues including fast food restaurants and bus stops but also supervised locations including drop-in
programs, group homes, juvenile detention centres, youth shelters and treatment centres.
Runaway children are easily spotted by pimps at the bus and train stations of major Canadian cities.
Sex tourism
In the early 1990s pressure was building for action on the sexual exploitation of foreign children by Canadian tourists travelling abroad, even though the extent was unknown, leading to the introduction of a number of private member's bills.C-27 (1996) amended s. 7 of the Criminal Code to address this. s. 7(4.1) extended its extraterritorial provisions to 11 sexual and sex-related offences against minors (but does not specify purchase of sex), and applies Canadian law to foreign jurisdictions.
Following enactment of C-27 in 1997, the Department of Justice was involved in the development of the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
’ Optional Protocol to the Convention on the Rights of the Child
Convention on the Rights of the Child
The United Nations Convention on the Rights of the Child is a human rights treaty setting out the civil, political, economic, social, health and cultural rights of children...
on the sale of children, child prostitution and child pornography
Child pornography
Child pornography refers to images or films and, in some cases, writings depicting sexually explicit activities involving a child...
, and Canada became a signatory in November 2001 (in force as of January 2002). At the same time C-15 simplified such prosecutions which had previously distinguished between prostitution and other forms of sexual abuse.
In 2009, Joy Smith
Joy Smith
Joy Ann Smith is a Canadian politician. She served in the Legislative Assembly of Manitoba between 1999 and 2003, and was elected to the Canadian House of Commons in 2004.-Education and business career:...
introduced Bill C-268, An Act to amend the Criminal Code (minimum sentence for offences involving trafficking of persons under the age of eighteen years). This Bill amended Section 279.01 of Canada’s Criminal Code to create a new offence for child trafficking with a five year mandatory penalty. Bill C-268 has received broad support from stakeholders concerned with human trafficking including law enforcement, victims’ services, First Nations representatives, and religious and secular non-governmental organizations. MP Joy Smith worked with her colleagues across party lines to gain support for the legislation. On September 30, 2009, Bill C-268 received near unanimous support from Conservative, Liberal and NDP parties and was passed by the House of Commons, although opposed by the Bloc Quebecois.
On June 29, 2010, Bill C-268 was granted Royal Assent and became law. The successful passage of a Private Members Bill is rare and it is only the 15th time in the history of the Canada that a Private Members Bill amended the Criminal Code.
Policy issues
While the outdoor scene is the most visible and the one most likely to lead to complaints, there is an opinion that actions against them merely move the problem around rather than solve it, and that what harms there are in prostitution derive from public attitudes and inconsistent laws. The legal status has been described as "quasi-legal"
Debate comes from feminists, civil libertarians, politicians and law and order officials. The debates range over morality, constitutional rights and freedoms, and the fact that it is one of the few areas of consensual sexual activity that is still subject to legal control.
Politics
Various government committees and task forces have made many recommendations, very few of which have been implemented. The most recent was the 2006 report of the parliamentary subcommittee on solicitation which split on ideological party lines, with recommendations for decriminalisation from the majority opposition parties, and for eradication by the minority government members.The current majority Conservative government supports the prohibition of prostitution. Responding to the 2006 report Prime Minister Stephen Harper
Stephen Harper
Stephen Joseph Harper is the 22nd and current Prime Minister of Canada and leader of the Conservative Party. Harper became prime minister when his party formed a minority government after the 2006 federal election...
stated "In terms of legalization of prostitution I can just tell you that obviously that's something that this government doesn't favour".
Justice Minister Rob Nicholson
Rob Nicholson
Robert Douglas "Rob" Nicholson, PC, QC, MP , is the Minister of Justice and Attorney General of Canada. He is a current member of the Canadian House of Commons, representing the riding of Niagara Falls for the Conservative Party and the current Minister of Justice after serving for one year as...
also stated: "We are not in the business of legalizing brothels, and we have no intention of changing any of the laws relating to prostitution in this country.”
Such a move would likely be met with opposition from some feminists and women's organizations who are opposed to prostitution, which they consider to be a form of exploitation of women and of male dominance (see feminist objections to prostitution).
They point out that in Sweden
Sweden
Sweden , officially the Kingdom of Sweden , is a Nordic country on the Scandinavian Peninsula in Northern Europe. Sweden borders with Norway and Finland and is connected to Denmark by a bridge-tunnel across the Öresund....
, Norway
Norway
Norway , officially the Kingdom of Norway, is a Nordic unitary constitutional monarchy whose territory comprises the western portion of the Scandinavian Peninsula, Jan Mayen, and the Arctic archipelago of Svalbard and Bouvet Island. Norway has a total area of and a population of about 4.9 million...
and Iceland
Iceland
Iceland , described as the Republic of Iceland, is a Nordic and European island country in the North Atlantic Ocean, on the Mid-Atlantic Ridge. Iceland also refers to the main island of the country, which contains almost all the population and almost all the land area. The country has a population...
it is illegal to pay for sex (the client commits a crime, but not the prostitute) and argue that countries with a high commitment to gender equality
Gender equality
Gender equality is the goal of the equality of the genders, stemming from a belief in the injustice of myriad forms of gender inequality.- Concept :...
don't tolerate prostitution. On the other hand other feminists and women's groups see the laws prohibiting sex work as oppressive of the labour of women and argue for their repeal as a basic human rights issue.
Conservative MP Joy Smith
Joy Smith
Joy Ann Smith is a Canadian politician. She served in the Legislative Assembly of Manitoba between 1999 and 2003, and was elected to the Canadian House of Commons in 2004.-Education and business career:...
stated she is preparing legislation that would prohibit the purchase of sex.
In response, Vancouver lawyer, Katrina Pacey of PIVOT
Pivot Legal Society
Pivot Legal Society is a legal advocacy organization based in Vancouver, British Columbia's Downtown Eastside. Founded in 2000, Pivot's stated aim is to represent and defend the marginalized and disenfranchised.-Media coverage:...
has outlined the legal arguments against such an approach.
Public Opinion
A 2006 opinion polls have shown that 68% of Canadians consider prostitution to be "immoral" (76% of women and 59% of men).A 2009 online survey of a representative national sample of 1,003 Canadian adults conducted by Angus Reid
Angus Reid
Angus Reid is an offensive lineman for the BC Lions of the Canadian Football League. Reid went to Simon Fraser University and played for the Simon Fraser Clan. He began his career with the Montreal Alouettes but was traded, along with a 5th round draft pick, to BC for Adriano Belli...
Public Opinion showed that prostitution was considered "morally acceptable" by 42% of Canadians, but there were differences by age and gender. Young people were the most critical of prostitution: only 36% of those aged 18–34 considered prostitution "morally acceptable", compared to 45% of those aged 35–54, and 44% of those older than 55. 29% of women saw prostitution as acceptable, compared to 56% of men.
Human trafficking and crime
Social movements
At the same time a number of movements arose either advocating the eradication of sex work as exploitation, or for better protection of workers and decriminalisation based on human rights. A 1983 committee recommended both stronger sanctions to deal with the visible spectrum of sex work, but also wider reforms. In 1983 the law was made technically gender neutral and provisions for prosecuting communication were widened in 1985, while special provisions for minors were enacted in 1988. None of this abated debate and currently the laws are under challenge in two cases based on the Charter of Rights and Freedoms.Several national women's groups, such as the Canadian Association of Sexual Assault Centers and the Native Women's Association of Canada, several provincial groups, including le Centre d'aide et de lutte contre les agressions a caractere sexuelles and L'action ontarienne contre la violence faite aux femmes, several local groups, including La Cles, Vancouver Rape Relief and Women's Shelter, Exploited Voices Educating, University Women's Club, The Aboriginal Women's Action Network, The Asian Women's Coalition Ending Prostitution, are advocating an abolitionist approach to policy.