Prostitution per se has never been a
crime in
These laws were developed in an ad hoc
manner and reflect concerns that arose at different points in our history.
Constance Backhouse [3] notes
that early prostitution legislation in
The early 1970s marked the inception of modern street prostitution legislation.
In 1972, "Vag C" or the vagrancy law, dating from the prohibition
era, was repealed. The vagrancy law held that a woman had to be able to account
for her presence on the street or risk being prosecuted as a "common"
prostitute. Changing times and objections from civil libertarians and women's
groups necessitated the shifting focus of prostitution law from a "status
offence," involving no specific behavior, to one prohibiting soliciting.
S. 195.1 of the Criminal Code, which replaced the vagrancy
law, stated: "Every person who solicits any person in a public place for
the purpose of prostitution is guilty of a summary conviction offence."
Prostitution itself was not an offence, but soliciting or publicly obtaining
customers became one.
Between 1972 and 1981, courts throughout the country struggled with
interpretations of what the new term "solicit" meant. Provincial
courts of appeal were asked to rule as to whether a wink, a nod or a casual
conversation constituted soliciting. Court decisions generally held that where
a level of importuning or persuasion was exercised, soliciting had taken place.
In 1978, the Supreme Court of Canada ruled that soliciting, to be seen as a
crime, had to be pressing or persistent. Subsequently, the
Supreme Court also ruled that to be pressing or persistent, the conduct had to
be directed toward a single potential customer and could not consist of an
accumulation of advances toward different potential customers.
Court decisions also differed on whether customers, as well as prostitutes,
could be charged with soliciting and on what was meant by the term "public
place." Such decisions, and in particular those that found that a motor
vehicle was not a public place, were seen by police forces as a critical
impediment to the control of street prostitution. By the early 1980s, the
soliciting section (s. 195.1) virtually ceased to be used.
In June 1983, faced with considerable public pressure to remedy the
"street prostitution problem," the Government of Canada established
the Special Committee on Pornography and Prostitution to study the problem and
to report solutions to the Minister of Justice. Known as the Fraser Committee,
it held public and private hearings across the country in an attempt to obtain
maximum input from the Canadian public as to its concerns about prostitution.
The hearings illustrated that the street prostitution issue divided the
Canadian public; it pitted municipal officials, police forces and citizens'
groups, who felt that the Criminal Code should be strengthened to
control street prostitution, against civil libertarians, women's groups and
social services agents who favoured some form of decriminalization.
In May 1985, the Committee reported to the Minister of Justice. [4]
Prostitution was described as a social problem that required both legal and
social reforms. The Committee argued that it was the "contradictory and
often self-defeating nature of the various Criminal Code sections
relating to prostitution" that led to an increase in street prostitution.
The Committee noted that even though prostitution is legal, the law could be
used against it in most venues and/or situations. The Committee held that if
prostitution is indeed legal, then the issue of "where" and
"when" it can occur should be addressed.
On
When the legislation was introduced in the House of Commons, the then
Minister of Justice, the Honourable John Crosbie, stated that the purpose
behind the legislation was not an attempt to deal generally with all the legal
issues connected with prostitution, but was a limited attempt to address the
nuisance created by street soliciting that sought to balance the concerns of
law enforcement agencies, citizens' groups, women's groups and civil
libertarians. It made criminal the public activities most frequently
engaged in for the purpose of offering or purchasing sexual services.
Considerable controversy and concern surrounded this new legislation.
Parliament included a requirement to review the legislation within three years
from the time it was enacted. On
In May 1987, studies to evaluate the effects of the communicating provision
were initiated by the federal Department of Justice. Before the research was
complete, the communicating law was challenged on the basis that the provisions
around communicating (s. 213), or keeping of bawdy-houses (s. 210), or both,
were inconsistent with the Canadian Charter of Rights and Freedoms.
In May 1990, however, the Supreme Court of Canada held that, while the
communicating section is an infringement on the freedom of expression, the
elimination of street solicitation, and the social nuisance it creates, is a
governmental objective of sufficient importance to justify a limitation on the freedom
of expression guaranteed by ss. 2(b) of the Charter. The
dissenting opinion found that since both communication and prostitution are
lawful, the legislative response of potential imprisonment for a combination of
these actions was far too drastic.
In its Fourth Report of the Standing Committee on Justice and the
Solicitor General on Section 213 of the Criminal Code
(Prostitution-Soliciting), released on October 4, 1990, the Standing
Committee presented the results of the research on the effects of the
communicating provision, as well as recommendations concerning s. 213. The
results indicated that while s. 213 had not reduced levels of street
prostitution in
The first recommendation of the Standing Committee in respect of s. 213 was
that funding be developed for agencies providing programs for prostitutes
wishing to leave the street trade, and that were responsive to their needs. The
Committee also recommended that the Identification of Criminals Act
be amended to allow for the fingerprinting and photographing of those charged
under s. 213 of the Criminal Code, whether as prostitutes or as
customers. Finally, the Committee recommended that s. 213 be amended to provide
sentencing judges with the discretion to prohibit persons convicted of street
solicitation involving a motor vehicle, in addition to any other penalty
imposed, from driving a motor vehicle for a period not to exceed three months.
The last two recommendations were carried despite lack of consensus.
The federal government tabled its response to the Report in the House of
Commons on
Before the passage of Bill C-49 in 1985, a number of objections to the
legislation were voiced by critics. Many social agencies and women's groups
anticipated that women working in the sex trade would be more vulnerable as a
result of the law, not only because they were liable to arrest and prosecution,
but because that they would be more at risk of victimization by pimps and
customers. It was suggested that the street prostitution trade would be
displaced to new locations that offered less protection (in terms of street
lighting, for example) and that women would be forced to work in less familiar,
and hence more dangerous, locations to avoid apprehension.
Statistics from the Canadian Centre for Justice Statistics show that 63
known prostitutes were found murdered between 1991 and 1995 (Canadian Centre
for Justice Statistics, 1997). Almost all of the murdered prostitutes were
female (60 of the 63). During this period, known prostitutes were the victims
in 5% of all female homicides reported (1,118 deaths). At the end of 1996, 54%
of homicides involving known prostitutes reported between 1991 and 1995
remained unsolved (34 incidents). In comparison, only 20% of all homicide
incidents remained unsolved when they involved victims other than known
prostitutes.
Research was proposed that would attempt to better explain these homicides
and other violence experienced by prostitutes since the new legislation.
Street prostitution has always been a dangerous business. In 1984, the
report of the Committee on Sexual Offences against Children and Youths [5]
(Badgley Committee) noted that about two thirds of the street prostitutes
interviewed had been physically assaulted in the course of their work.
Researchers evaluating the input of Bill C-49 in many of the cities studied
(Vancouver, Calgary and Montreal) were surprised by the recurrent accounts of
prostitutes being confronted by armed assailants, stabbed, threatened, beaten
up and robbed. In the 1988
The same study found that 40% of the 65 sex trade workers interviewed
carried a weapon while working on the street, whereas only 15% of the sample
carried a weapon while trading sexual favours indoors. This fact may place them
and/or others at risk. Between 1991 and 1995, for instance, 18 prostitutes were
implicated in the deaths of 10 "tricks", one pimp, and five other
individuals (Canadian Centre for Justice Statistics, 1997).
On behalf of the Federal-Provincial-Territorial Working Group on
Prostitution, studies on violence against prostitutes were conducted in 1994
and 1995 in
Specifically, the following was found. In
In 1992, in
Consultation participants were frustrated by what they perceived as the low
sentences imposed on pimps and customers of youth. Two major factors were cited
as explanations for that: the perceived lack of understanding of the courts for
the impact of these crimes on youth and the lack of enforcement of certain Criminal
Code provisions, particularly ss. 212(4).
Respondents felt that if justice personnel had better awareness regarding
the exploitation and victimization resulting from prostitution, there could be
more convictions and higher penalties obtained. Others pointed to the dangers
associated with the courts imposing very high or mandatory minimum sentences,
particularly in respect of pimps: the dangers could be passed on to youth, as
pimps would have more at stake. There was also the concern that heightened
criminalization of these offences could have the effect of driving youth
involved in prostitution further underground.
The most common frustration expressed was that police did not have adequate
powers to enforce ss. 212(4) and, as a result, many customers either were
not apprehended or were charged with the less serious offence of communicating
(s. 213), thus receiving light sentences (often conditional discharges or
absolute discharges). [29] In
certain areas of the country (e.g., Vancouver), the enforceability of
ss. 212(4), before the coming into force of Bill C-27, had been identified
by the community as a problem, and nearly all respondents endorsed the option
of amending the subsection to make it more enforceable.
Many people felt that the current levels of sentences available for the
offence of procuring youth were appropriate. Also, the actual court
dispositions would be similarly appropriate if the problems just described
could be addressed.
Most respondents felt that criminal sanctions against pimps and customers
alone would have little effect, and that only through a multi-disciplinary
approach, including increased public awareness, social interventions, and
measures such as treatment or therapy for customers would a real change of
behavior occur in respect of prostitution involving youth. In
A few respondents suggested that, in any event, the provisions of the Criminal
Code dealing with youth involved in prostitution should be repealed and
that provisions in the Criminal Code and in provincial legislation
relating to child sexual abuse should be utilized. As noted earlier,
BAWDY-HOUSES
Keeping common
bawdy-house
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.
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.