Prostitution in Canada (Constitutional and case law)
Encyclopedia
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. 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).
Nova Scotia
's Appeal Court ruled the legislation violated the guarantee of freedom of expression in the Charter of Rights and Freedoms, by constraining communication in relation to legal activity (R. v. Skinner (1987), 35 C.C.C. (3d) 203). The Alberta Court of Appeal disagreed, holding that infringement of freedom of expression was a justifiable limitation as no “clear and convincing” alternative was available for dealing with the nuisance of street prostitution (R. v. Jahelka (1987), 79 A.R. 44).
The Manitoba Court of Appeal
upheld section 195.1(1)(c) on the grounds that there was no prima facie
case of freedom of expression (Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1987] 6 W.W.R. 289).
When referred to the Supreme Court
, it upheld the sections (Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123])Chief Justice Dickson
for the majority (Madam Justice Wilson
and Madam Justice L'Heureux‑Dubé
dissenting), agreed that freedom of expression was restricted by what was now 213(1)(c) it did not infringe or deny the freedom of association guaranteed by section 2(d) of the Charter. He also held that it did not infringe the right to be treated fairly when life, liberty and security are affected by governmental action, as guaranteed by section 7 of the Charter. The reference to the court also included the bawdy house provisions which were held to not infringe the guarantee of freedom of expression provided for by section 2(b) of the Charter. Finally the impugned infringement of the freedom of expression guaranteed by section 2(b) of the Charter was justifiable under section 1 of the Charter as being a reasonable limit on a protected right.
The justification was set out in three stages. (1) The court must first characterize the objective of the law (a remedy for solicitation in public places and the eradication of social nuisance from the public display of the sale of sex). This was constructed as restricted to taking prostitution off the streets and out of public view. In this respect, Dickson disagreed with the opinion of another justice that the legislative objective addressed the broader questions of the exploitation, degradation and subordination of women. (2) The court must assess the proportionality of the legislation to the objectives; in particular any infringement of rights must be the minimum to achieve this. It was held the provisions were not unduly intrusive. (3) The court must determine if the effects of the law so infringe a protected right that it outweighs the objective. It was held that the curtailment of street solicitation was in keeping with the interests of society, for its nuisance‑related aspects.
In a decision handed down by Madam Justice Susan Himel
in the Ontario Superior Court of Justice on September 28, 2010, the prostitution laws were declared invalid.
The decision was stayed and an appeal was heard heard in June, 2011. It could take months for the court to rule on the case.
Another relates to the alternative definition of "the practice of acts of indecency", since this leaves open the definition of indecency, which may not be universally understood or accepted. One definition of community standards
comes from the Supreme Court decision in R. v. Tremblay, [1993] 2 S.C.R. 932. In considering nude dancing the majority held that the acts were not indecent since they did not fall below the community standard of tolerance, citing the circumstances surrounding the act, the degree of harm that could result from public exposure, and expert evidence. No complaints had been received; the acts were in a closed room between consenting adults without physical contact, while expert witnesses suggested this was voyeurism
and exhibitionism
that caused no harm.
When Tremblay was used in Ontario to determine that lap dancing or table dancing was not indecent Toronto passed a by-law prohibiting close-contact dancing. However the Court of Appeal reversed the decision on the grounds that this constituted prostitution (R. v. Mara, 27 O.R. (3d) 643). Furthermore the court ruled that Parliament intended to abolish prostitution as a form of violence against women, and thus the dancing exceeded public acceptability. The Supreme Court confirmed this in June 1997 holding that sexual contact constitutes prostitution and exceeds community standards.
such as this contravenes the presumption of evidence under section 11(d) of the Charter and was challenged. The Supreme Court found this justifiable in Downey v. R.( [1992] 2 S.C.R. 10). The majority accepted that an accused might be convicted despite the existence of reasonable doubt
, for instance, a person may share accommodation with someone without necessarily living on their earnings. The Court found this a reasonable limit on the presumption of innocence because the intent was to prevent exploitation by pimps and that there was no real danger of innocent persons being found guilty if they provided evidence to the contrary, thereby constituting reasonable doubt. It was felt that this provision protected sex workers from abuse.
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 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).
Sections 193, 195 (213)
The new formulations of section 213 found themselves under challenge in the lower courts within a year, with conflicting results (R. v. McLean (1986), 28 C.C.C. (3d) 176; R. v. Bear (1986), 54 C.R. (3d) 68).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...
's Appeal Court ruled the legislation violated the guarantee of freedom of expression in the Charter of Rights and Freedoms, by constraining communication in relation to legal activity (R. v. Skinner (1987), 35 C.C.C. (3d) 203). The Alberta Court of Appeal disagreed, holding that infringement of freedom of expression was a justifiable limitation as no “clear and convincing” alternative was available for dealing with the nuisance of street prostitution (R. v. Jahelka (1987), 79 A.R. 44).
The Manitoba Court of Appeal
Manitoba Court of Appeal
The Manitoba Court of Appeal is the highest Court of Appeal in the Canadian province of Manitoba. It was established in 1906. It is located in the Old Law Courts building at 408 York Avenue in Winnipeg, the capital city of Manitoba...
upheld section 195.1(1)(c) on the grounds that there was no prima facie
Prima facie
Prima facie is a Latin expression meaning on its first encounter, first blush, or at first sight. The literal translation would be "at first face", from the feminine form of primus and facies , both in the ablative case. It is used in modern legal English to signify that on first examination, a...
case of freedom of expression (Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1987] 6 W.W.R. 289).
When referred to the Supreme Court
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...
, it upheld the sections (Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123])Chief Justice Dickson
Brian Dickson
Robert George Brian Dickson, , commonly known as Brian Dickson, was appointed Chief Justice of Canada on April 18, 1984. He retired on June 30, 1990 and died October 17, 1998.-Career:...
for the majority (Madam Justice Wilson
Bertha Wilson
Bertha Wernham Wilson, CC was a Canadian jurist and the first woman Puisne Justice of the Supreme Court of Canada.-Early life:...
and Madam Justice L'Heureux‑Dubé
Claire L'Heureux-Dubé
Claire L'Heureux-Dubé, served as a justice on the Supreme Court of Canada from 1987 to 2002. She was the first woman from Quebec and the second woman appointed to this position.- Personal history :...
dissenting), agreed that freedom of expression was restricted by what was now 213(1)(c) it did not infringe or deny the freedom of association guaranteed by section 2(d) of the Charter. He also held that it did not infringe the right to be treated fairly when life, liberty and security are affected by governmental action, as guaranteed by section 7 of the Charter. The reference to the court also included the bawdy house provisions which were held to not infringe the guarantee of freedom of expression provided for by section 2(b) of the Charter. Finally the impugned infringement of the freedom of expression guaranteed by section 2(b) of the Charter was justifiable under section 1 of the Charter as being a reasonable limit on a protected right.
The justification was set out in three stages. (1) The court must first characterize the objective of the law (a remedy for solicitation in public places and the eradication of social nuisance from the public display of the sale of sex). This was constructed as restricted to taking prostitution off the streets and out of public view. In this respect, Dickson disagreed with the opinion of another justice that the legislative objective addressed the broader questions of the exploitation, degradation and subordination of women. (2) The court must assess the proportionality of the legislation to the objectives; in particular any infringement of rights must be the minimum to achieve this. It was held the provisions were not unduly intrusive. (3) The court must determine if the effects of the law so infringe a protected right that it outweighs the objective. It was held that the curtailment of street solicitation was in keeping with the interests of society, for its nuisance‑related aspects.
Section 198
A part of section 198(1)(d) was challenged in 1991, namely that a previous conviction of keeping a disorderly house amounts to proof of the nature of the premises in subsequent proceedings. This was held to contravene sections 11(d) and 7 of the Charter (R. v. Janoff (1991), 68 C.C.C. (3d) 454 (Que. C.A.)), and became inoperative.Ontario constitutional challenge 2007-
A legal challenge to three of Canada's many prostitution laws was filed in Ontario Superior Court in March 2007.In a decision handed down by Madam Justice Susan Himel
Susan Himel
Susan G. Himel is a judge in the Ontario Superior Court of Justice for the Toronto region. Previously, she served as the assistant Deputy Attorney General of Ontario.-References:...
in the Ontario Superior Court of Justice on September 28, 2010, the prostitution laws were declared invalid.
The decision was stayed and an appeal was heard heard in June, 2011. It could take months for the court to rule on the case.
British Columbia constitutional challenge 2007
In October 2010 the BC Court of Appeal ruled that a further challenge can proceed there.Section 197: Bawdy house definition
The wording of section 197 allows of some interpretation. One requisite is that a place must be resorted to for prostitution on a habitual and regular basis (R. v. Patterson (1968), 67 D.L.R. (2d) 82 (S.C.C.)). A woman who used her own apartment, alone, but regularly was convicted (R. v. Worthington (1972), 22 C.R.N.S. 34 (Ont. C.A.)).Another relates to the alternative definition of "the practice of acts of indecency", since this leaves open the definition of indecency, which may not be universally understood or accepted. One definition of community standards
Community standards
Community standards are local norms bounding acceptable conduct. Sometimes these standards can be itemized in a list that states the community's values and sets guidelines for participation in the community...
comes from the Supreme Court decision in R. v. Tremblay, [1993] 2 S.C.R. 932. In considering nude dancing the majority held that the acts were not indecent since they did not fall below the community standard of tolerance, citing the circumstances surrounding the act, the degree of harm that could result from public exposure, and expert evidence. No complaints had been received; the acts were in a closed room between consenting adults without physical contact, while expert witnesses suggested this was voyeurism
Voyeurism
In clinical psychology, voyeurism is the sexual interest in or practice of spying on people engaged in intimate behaviors, such as undressing, sexual activity, or other activity usually considered to be of a private nature....
and exhibitionism
Exhibitionism
Exhibitionism refers to a desire or compulsion to expose parts of one's body – specifically the genitals or buttocks of a man or woman, or the breasts of a woman – in a public or semi-public circumstance, in crowds or groups of friends or acquaintances, or to strangers...
that caused no harm.
When Tremblay was used in Ontario to determine that lap dancing or table dancing was not indecent Toronto passed a by-law prohibiting close-contact dancing. However the Court of Appeal reversed the decision on the grounds that this constituted prostitution (R. v. Mara, 27 O.R. (3d) 643). Furthermore the court ruled that Parliament intended to abolish prostitution as a form of violence against women, and thus the dancing exceeded public acceptability. The Supreme Court confirmed this in June 1997 holding that sexual contact constitutes prostitution and exceeds community standards.
This type of activity is harmful to society in many ways. It degrades and dehumanizes women; it desensitizes sexuality and is incompatible with the dignity and equality of each human being. Mr. Justice Sopinka, 26 June 1997
Section 210: Bawdy house Bawdy house keeping
Participation alone is insufficient under 210 (1), without “some degree of control over the care and management of the premises” (R. v. Corbeil, [1991] 1 S.C.R. 83).Section 212: Procuring
Subsection 3 provides a presumption of offence of living on the avails, if associated with a sex worker or premise. A reverse onusReverse onus
A reverse onus clause is a provision within a statute that shifts the burden of proof on to the individual specified to disprove an element of the information. Typically, this provision concerns a shift in burden onto a defendant in either a criminal offence or tort claim...
such as this contravenes the presumption of evidence under section 11(d) of the Charter and was challenged. The Supreme Court found this justifiable in Downey v. R.( [1992] 2 S.C.R. 10). The majority accepted that an accused might be convicted despite the existence of reasonable doubt
Reasonable doubt
Proof beyond a reasonable doubt is the standard of evidence required to validate a criminal conviction in most adversarial legal systems . Generally the prosecution bears the burden of proof and is required to prove their version of events to this standard...
, for instance, a person may share accommodation with someone without necessarily living on their earnings. The Court found this a reasonable limit on the presumption of innocence because the intent was to prevent exploitation by pimps and that there was no real danger of innocent persons being found guilty if they provided evidence to the contrary, thereby constituting reasonable doubt. It was felt that this provision protected sex workers from abuse.