Final Paper Prostitution Scribd Upload

PUBL 6140.
030 S
Business and Government
Prostitution in Canada
Professor D B
July 30, 2004
My Name
666 666 666
Table of Contents
Table of Contents.................................................................................................................2
Introduction..........................................................................................................................4
Background..........................................................................................................................4
Prostitution: An International Perspective.......................................................................5
Early Prostitution Legislation in Canada.....................................................................6
Current Prostitution Legislation in Canada......................................................................7
Procuring and Living on the Avails.........................................................................7
Bawdy House Offences ...........................................................................................8
Communicating........................................................................................................8
Sexual Services from Youths...................................................................................8
Analysis................................................................................................................................9
Policy objectives of prostitution Legislation...................................................................9
Stakeholder Analysis.................................................................................................10
Prostitutes...............................................................................................................10
The Community.....................................................................................................10
Police .....................................................................................................................11
Clients of Prostitutes..............................................................................................11
Civil Libertarians...................................................................................................11
Feminist Groups.....................................................................................................11
Social Service Agencies.........................................................................................12
Government............................................................................................................12
Research on Prostitution in Canada...........................................................................12
Profiles of Prostitutes.............................................................................................13
Violence Against Prostitutes..................................................................................13
Findings of the Fraser Committee..........................................................................14
Findings of the Badgley Committee......................................................................16
Reaction of the Government to the Findings of the Committees...........................16
Policy Options................................................................................................................17
A. Criminalization......................................................................................................18
Stakeholders Revisited...............................................................................................20
B. Decriminalization / Legalization with Regulation................................................21
A Model for Legalized Prostitution - Queensland Australia.........................................26
The Sex Worker.....................................................................................................26
The Client...............................................................................................................28
The Community.....................................................................................................28
Stakeholders Revisited...............................................................................................29
Individual Perspectives on Prostitution.....................................................................30
Conclusion........................................................................................................................32
Exhibit 1 Criminal code sections 197, 198, 199, 210, 211, 212, 213, 265....................34
Disorderly Houses, Gaming, and Betting..............................................................34
Presumptions..........................................................................................................35
Search.....................................................................................................................36
Bawdy-houses........................................................................................................37
2
Transporting person to bawdy-house.....................................................................37
Procuring................................................................................................................37
Offence in relation to prostitution..........................................................................38
Assault....................................................................................................................38
Kidnapping, Hostage Taking and Abduction ........................................................39
Extortion................................................................................................................40
Exhibit 2 Age of Respondents by Sex Industry Sector..................................................41
Exhibit 3 Marital Status by Sex Industry Sector............................................................41
Exhibit 4 Reasons provided for Starting in Sex trade industry by current sector..........42
Exhibit 5 job satisfaction by current type of work.........................................................43
Exhibit 6 Comparing the self reported health of female sex workers with age-matched
women from the general population..............................................................................44
Exhibit 7 proportion of respondents reporting ever having been raped or bashed by
current type of work.......................................................................................................45
Exhibit 8 number of respondents reporting ever having been raped or bashed by
current type of work.......................................................................................................45
Exhibit 9 respondents beliefs about whether a brothel has affected their business or
personal activities in areas with to without brothels .....................................................46
Exhibit 10 Respondents answering ‘yes’ to a series of question about sex work .........46
3
Intr oduction
The purpose of this paper is to examine the current model of regulation of
prostitution in Canada and to assess whether or not the current model of regulation is
satisfactory in meeting its objectives and whether or not the regulatory framework best
serves the public interest and addresses the issues related to the major stakeholder groups.
It is the hypothesis of this paper that Canada’s current model for the regulation of
prostitution is defective. While the issue of juvenile prostitution is an important one, it
has already received much attention as compared to adult prostitution, and so the focus of
this paper is on adult prostitution.
A brief background of the sex trade industry is provided along with an
explanation of the early prostitution legislation regime in Canada. An explanation of the
current model of legislating prostitution in Canada (the criminalization model) is
provided and followed by a critical analysis of the criminalization model. A discussion
of decriminalization / legalization with effective regulation is offered as an alternative to
criminalization and the model of regulation currently employed in Queensland, Australia
is highlighted as an example, following which conclusions are drawn.
4
Backg r ound
PROSTITUTION: AN INTERNATIONAL PERSPECTIVE
Prostitution is one of the oldest and most enduring professions. Despite attempts
to control and eradicate it through criminal sanctions, it remains a feature of most
societies over recorded time. 1 The term "prostitute" has generally referred to females
who sell brief encounter sexual services to a variety of men. 2 Social control of
prostitution (especially female) is problematical around the world. Despite over two
decades of an international women's movement, prostitutes in many societies are
subjected to extraordinary public regulations: ghettoization, arrest, jail or prison
sentencing, fines, ridicule, shaming, shunning, and deportation. Additionally, prostitutes
are frequently the victims of violent crime - raped and beaten by clients or pimps and
murdered by unknown serial killers. 3
Generally, street prostitutes demand the lowest price for their services, although
prices can often vary within different areas of a given city. Escorts tend to command
higher prices, although prices can vary among agencies and geographically. Escorts are
more expensive than street prostitutes because a fee is charged by the agency in addition
to the fee charged by the worker providing sexual services. The more exclusive the
prostitute is, the higher the cost, in general. It appears that (at least in the case of
1
Selling Sex in Queensland: Study of Prostitution in Queensland,
http://www.pla.qld.gov.au/pdfs/advertising/PLA_sex_in_qld_complete.pdf
2
Nanette J. Davis; Prostitution: An International Handbook on Trends, Problems, and Policies, Greenwood
p 56
3
p1
5
females), that there is an inverse relation between the public visibility of the prostitute
and the price that she is able to command. 4
EARLY PROSTITUTION LEGISLATION IN CANADA
During the mid 1800’s the status of the prostitute was criminalized based upon
vagrancy laws imported to Canada from England. For example, a prostitute who could
not explain his or her presence in a public place to a police officer was arrested. Moral
reformers claimed to want to protect young women and children involved in prostitution
and wanted male exploiters punished. However, when it came to enforcement, it was
female prostitutes who were arrested. In the early 1900’s there were renewed efforts to
protect prostitutes from the exploitative aspects of the trade. In 1913, the Criminal Code
of Canada was amended to bolster procurement and bawdy house laws. The changes
were enacted in part to address the shortcomings of earlier laws that discriminated against
females involved in prostitution. Following these changes, there was an increase in the
number of charges laid for procuring, pimping and living on the avails of prostitution.
Notwithstanding, it was still primarily female prostitutes who were arrested. Men who
purchased sexual services did so with little fear of criminal censure. The vagrancy laws
relating to prostitution were repealed in 1972 and replaced with Section 195 of the
Criminal Code, which relates to solicitation, which in turn was replaced by with the
communicating law (Section 213). Using the number of prostitution related articles in
the Globe and Mail, Vancouver Sun, and Province from 1920 to 1975 as a proxy; it
4
p 56 - 57
6
appears that more than 60 years would pass before prostitution became a national issue
again. 5
CURRENT PROSTITUTION LEGISLATION IN CANADA
While prostitution per se - has never been a crime in Canada; it has been in the
past and continues to be today attacked indirectly. There are many prohibitions
surrounding the act of taking money for sex that, in most situations are illegal in whatever
form. The relevant provisions are included in the Criminal Code and include offences
that relate to bawdy-houses (section 210 and 211), procuring (section 212), and
communicating (section 213). See Exhibit 1 for relevant sections of the Criminal Code. 6
There are currently four clusters of crimes related to prostitution: (1) procuring for the
purpose of or living on the avails of prostitution, (2) bawdy house offenses, (3)
communicating in a public place for the purpose of buying or selling sexual services, and
(4) purchase of sexual services from youths and children. 7
Procuring and Living on the Avails
The intent of the procuring and living on the avails of prostitution statutes are to
prevent third parties from making any kind of financial gain from the prostitution of other
persons. Section 212 of the Criminal Code contains provisions that prohibit the
procuring of persons to become prostitutes or the enticing of persons to become inmates
of common bawdy houses and prohibits gain arising from the aiding, abetting or
5
Bittle, Steven, YOUTH INVOLVEMENT IN PROSTITUTION: A LITERATURE REVIEW AND
ANNOTATED BIBLIOGRAPHY, p 4 – 5, http://www.justice.gc.ca/en/ps/rs/rep/rr01-13.pdf
6
http://laws.justice.gc.ca/en/C-46/section-210.html
7
p 59
7
compelling of another person to engage in prostitution as well as prohibiting a person
from living "wholly or in part on the avails of prostitution of another person".
Bawdy House Offences
The bawdy house provisions are found in sections 197, 198, 199, 210, and 211 of
the Criminal Code. As per Section 210 it is an indictable offense to "keep" a "common
bawdy house." A bawdy house is defined as a place that is "(a) kept or occupied, or (b)
resorted to by one or more persons for the purpose of prostitution or acts of indecency" as
per Section 197. Under Section 210, it is an offense to be found in or to be an inmate of a
bawdy house, or to have control of any place, or any part of any place, that is let or used
as a common bawdy house. Section 211 prohibits transporting or offering to transport
another person to such a place. Sections 198 and 199 deal with what constitutes evidence
in establishing whether or not a place is a common bawdy house.
Communicating
The communicating law (Section 213) was established in December 1985 and
replaced the solicitation law. Its principal purpose was to reduce the visibility of
prostitution, thus reducing the nuisance aspects of prostitution to the general public. A
noteworthy aspect of the communicating law is that for the first time in the history of
prostitution laws in Canada, the Criminal Code included customers "under the purview of
the law". Thus rendering clients of prostitutes vulnerable to prosecution.
Sexual Services from Youths
In 1988 the federal government introduced Bill C-15 to address sexual offences
children and youth with the clear message that protection of minors was a priority and
8
sexual abuse was unacceptable and would not be tolerated. Section 212 was amended
accordingly to make it easier for police to arrest offenders and provided for stiffer
sentences. 8
Analysis
While prostitution is technically legal in Canada, the combined effect of the laws
relating to bawdy houses, living on the avails of prostitution, procuring, communicating,
and youth related sex make it very difficult for a prostitute to practice prostitution without
breaking the law as noted by Lowman:
“The prostitute has been legislatively encircled; prostitution is permitted as long
as it is not practiced. It is virtually impossible to conceive of a location where
prostitution can occur on a regular basis without one of the parties to the act risking
criminal prosecution” 9
POLICY OBJECTIVES OF PROSTITUTION LEGISLATION
The primary objectives of the government policy with respect to prostitution
appear to be twofold: 1) the protection of prostitutes from exploitation and harm (from
third parties) and 2) the protection of the public from the “nuisance effects” of
prostitution. Lowman has categorized prostitution laws into two segments: those for the
purpose of protecting prostitutes from third parties relating to laws dealing with
procuring, living on the avails (Section 212), running, owning or transporting someone to
8
Bittle, Steven, YOUTH INVOLVEMENT IN PROSTITUTION: A LITERATURE REVIEW AND
ANNOTATED BIBLIOGRAPHY, p 3 – 11, http://www.justice.gc.ca/en/ps/rs/rep/rr01-13.pdf
9
Lowman, J. (1992). Street Prostitution. In V. Sacco (Ed.), Deviance conformity and control in Canadian
society, Scarborough: Prentice-Hall Canada Inc., p 78 – 79.
9
a bawdy house (Section 210-212) and those laws meant to protect the public from the
"nuisance" effects of prostitution such as the law against public solicitation (Section
213).10
STAKEHOLDER ANALYSIS
There are a multitude of stakeholders in the context of regulating prostitution and
a number of these stakeholders and their respective stakes are identified. The focus of
this paper is on prostitutes, the community and the clients of prostitutes.
Prostitutes
The primary concerns from the perspective of sex workers include freedom to ply
their trade freely without being harassed by the police and members of the community.
Furthermore, it is likely that they would appreciate being treated as equally as possible in
so far as practicable in the context of being members of society in general. In other
words – to avoid being marginalized by society at large. A significant concern would
include safety (from harm / violence).
The Community
The primary concerns from the perspective of the community would likely be to
avoid any adverse effects of prostitution in the community’s locale. Denizens would not
want to be unwillingly solicited by prostitutes. Communities would likely want
advertisements for sexual services to be low profile. Any crime or other detrimental
outcomes or effects related to prostitution to local businesses for example (whether actual
or perceived) should be minimized or eliminated in so far as practicable.

10
Lowman, J., "You Can Do It, But Don't do It Here: Some Comments On Proposals for the Reform of
Canadian Prostitution Law", Regulating Sex: An Anthology of Commentaries on the Badgley and Fraser
Reports (Burnaby, B.C.: School of Criminology, Simon Fraser University, 1985) p 193 - 195
10
Police
The mandate of police authorities is to uphold the current law which includes the
various prohibitions related to the practice of prostitution. Concerns would also include
violence against prostitutes, exploitation of sex workers such as juveniles and sex
workers smuggled into the country who are coerced into the sex trade.
Clients of Prostitutes
Clients of (adult) prostitutes (in general) would be concerned with such issues as
variety, quality, value, and discreetness, cleanliness, and avoidance of STDs. In this
light, clients bear similarities to consumers of “normal” goods and services. An
underlying assumption is that these consumers of sexual services are in (most) other
respects law abiding citizens.
Civil Libertarians
Civil libertarians groups would advocate the freedom of a female (or male) to be
free to use their body as they see fit and sell sexual services for money under the proviso
that the transaction is consensual and not coerced.
Feminist Groups
Feminist groups for the most part would like to see the end of prostitution as they
view prostitution as one of the areas of exploitation and unfair treatment of females.
There is a slight contradiction in their objective, in that if a women should have the right
to control her own body – such as the prerogative to have an abortion for example – then
following this logic she ought to also have the right to sell sexual services for money
under consensual conditions absent of duress or coercion.
11
Social Service Agencies
The mandate of most social service agencies is to keep prostitutes from harm and
physical violence and exploitation (especially street workers) and improve the sex
workers quality of life in general, such as in the areas of health, education, self
sufficiency etc.
Government
The various levels of government would be concerned with balancing the
competing interests of the various stakeholder groups.
RESEARCH ON PROSTITUTION IN CANADA
In the late 1970s and early 1980s, public and police concern increased with
respect to street prostitution in major Canadian cities and a multitude of studies were
conducted. The federal government convened two committees with the purpose (among
other objectives) with providing a general picture of the prostitution trade in Canada and
recommendations for reform of social and legal policy relating to it.
The mandate of the Committee on Sexual Offences against Children and Youth
(Badgley Committee, 1981) was "to enquire into the incidence and prevalence in Canada
of sexual offences against children and youths and to recommend improvements in laws
for the protection of young persons from sexual abuse and exploitation" as well as to
examine the problems of juvenile prostitution.
Adult prostitution was the purview of the Special Committee on Pornography and
Prostitution (Fraser Committee, 1983). Its mandate was to describe pornography and
prostitution and the laws regulating them in Canada, to review law in various other
12
countries, to hold public meetings and take submissions about problems associated with
pornography and prostitution, and to recommend solutions to the various problems
identified. 11
Profiles of Prostitutes
The data collected by the Federal Department of Justice for the Fraser Committee (1985)
and for the evaluation of the street communication legislation (1988) are roughly similar
in terms of sex workers' socio-demographics characteristics:
Age: the mean age of prostitutes varies between 22 and 25, and the majority began their
career between 16 and 20.
Gender: women are the majority comprising between 67% and 90% of all prostitutes,
depending on study site.
Abuse: physical abuse is reported in a larger proportion (between 40% and 65%) than
sexual abuse (28% to 44%).
Economic Background: most sex workers come from "comfortable" family backgrounds,
rather than from poor backgrounds.
Choice: between 50% and 75% became involved in prostitution voluntarily, and between
50% and 70% work for themselves and not for a pimp. 12
Violence Against Prostitutes
Street prostitution has always been a dangerous business. In 1984, the Badgley
Committee noted that about two thirds of the street prostitutes interviewed had been
11
Nanette J. Davis; Prostitution: An International Handbook on Trends, Problems, and Policies,
Greenwood p 57 - 58
12
International Conference on Prostitution and Other Sex Work, September 1996, University of Quebec at
Montreal, http://www.walnet.org/csis/groups/when_sex_works/technotes1.html
13
physically assaulted in the course of their work. In the cities of Vancouver, Calgary and
Montreal, researchers were surprised by the recurrent accounts of prostitutes being
confronted by armed assailants, stabbed, threatened, beaten up and robbed. In 1988 a
Calgary study reported that one half of the prostitutes interviewed had been victims of
sexual and physical violence. Interviews conducted in 1988 in Vancouver of women
involved in prostitution suggest that street prostitution is generally more dangerous than
off-street work. A much larger proportion of respondents working on the street reported
that they were robbed, sexually assaulted, beaten, strangled, kidnapped, and were more
likely to be involved in a situation where a weapon was used, or were the victims of
attempted murder. In contrast, the highest incidence of off-street victimization included
"refused condom," "threat/intimidation" and "general harassment." 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
favors indoors. These figures indicates that prostitutes may place them and/or others at
risk. 13
Findings of the Fraser Committee
In 1985 the committee described prostitution as a social problem that required
both legal and social reforms. Hearings conducted indicated that the issue of street
prostitution divided the Canadian public. Groups that included municipal officials,
police, and citizen groups felt that the Criminal Code ought to be strengthened to control
street prostitution. This was in contrast to civil libertarians, women’s groups and social
service agencies who were in favor of some form of decriminalization. The committee
13
Department of Justice, Report and Recommendations in respect of Legislation, Policy and Practices
Concerning Prostitution-Related Activities, 1998, http://www.justice.gc.ca/en/news/nr/1998/toc.html
14
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. 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. 14 The government chose
not to follow the direction proposed by the Fraser Committee and repealed the soliciting
law with the “Communicating for the Purpose of Prostitution” law which was primarily
aimed at dealing with street prostitution. The committee took the view that the law could
play only a minor role in long-term social policy on prostitution. The government's
response should involve policies designed to remove the economic and social inequalities
between men and women that makes prostitution a viable occupational choice for some
people.
The committee recommended sweeping changes to prostitution law in order to
make it logically and philosophically consistent. The committee argued that if
prostitution itself is to continue to be legal in Canada, the legislation ought to be designed
in a manner so that prostitutes can conduct their trade legally. While following this line
of reasoning and rejecting criminalization as either a workable or philosophically
acceptable option, the committee recommended a blend of decriminalization and
legalization and argued:
1. bawdy house laws be changed to allow one or two prostitutes to work out of a
private residence;
14
Department of Justice, Report and Recommendations in respect of Legislation, Policy and Practices
Concerning Prostitution-Related Activities, 1998, http://www.justice.gc.ca/en/news/nr/1998/toc.html
15
2. provincial governments be empowered to license small-scale prostitution
establishments;
3. street prostitution be controlled by a law that would criminalize definable
prostitution-related nuisances;
4. the living on the avails law, because of its paternalistic overreach, should be
revised to apply to coercive or threatening behavior only.15
Findings of the Badgley Committee
The opinion of the Badgley Committee with respect to youth prostitution was
although juvenile prostitutes were as much victims as they were offenders, the only way
to "help" them was to categorize them as offenders in order that they could then be
treated as victims. The committee thus recommended criminalizing juvenile prostitutes
so that they could be "saved." The Fraser Committee rejected this approach on the
premise that it did not subscribe to the belief that youths should be criminalized for an
activity that is legal for adults, which is one of the main principles underlying the
Canadian Young Offenders Act. Nevertheless, both committees agreed that the actions of
customers of youths should be criminalized. The government subsequently acted on this
recommendation. 16
Reaction of the Government to the Findings of the Committees
The reaction of the government was twofold. Firstly, it enacted a law against the
customers of juvenile prostitutes and increased sentences against persons who pimp
youths. Secondly, the government reformed the prostitution law (against the
15
Greenwood p 78 - 79
16
Greenwood p 79
16
recommendations of both the Badgley and Fraser committees) with the effect of revising
the street prostitution statute with the purpose of making it easier to enforce. With this
legal change, and without any other kind of economic or social policy initiative, the
Canadian government consolidated its commitment to the backdoor criminalization of
prostitution and entrenched the contradictory structure of Canadian prostitution law. This
was done in spite of public opinion survey findings that a substantial proportion of
Canadians are prepared to tolerate prostitution in private premises. 17
POLICY OPTIONS
The history of prostitution in Canada and other countries suggests that it is an
activity that is quite impervious to efforts to suppress it. The majority of perspectives
argue that the ultimate goal is for society to be rid of prostitution. Prostitution can be
viewed as a "social evil", a source of neighborhood decay or, a general public nuisance
(especially in residential areas). Prostitution represents an extreme form of turning
women into commodities and objects from the socialist and feminist perspectives.
Troubling for the feminist camp is that prostitution on the one hand is sexual exploitation
and thus ought to be eliminated. On the other hand, if women ought to be allowed to
control their own bodies, then they ought to have the right to prostitute themselves. 18
While there are a number of different approaches to address the issue of
prostitution – criminalization, decriminalization, legalization (either regulated or
deregulated) it seems clear that a main concern is to keep prostitution invisible (as
demonstrated by the objectives of the “public nuisance” laws). Whether the objective is
17
Greenwood p 79
18
Greenwood p 77
17
to eradicate prostitution or tolerate it, Canadians do not wish to be reminded of its
existence. Thus it appears that the insistence on invisibility has in the past and will
continue to be in the foreseeable future an overriding in any policy decision that
addresses prostitution. 19
A. CRIMINALIZATION
Under criminalization all forms of prostitution are criminalized. Canada practices
a form of criminalization in that while prostitution is legal in theory, all forms of
practicing prostitution, such as the public communication for the purpose or prostitution;
or most forms of indoor prostitution including owning, running, transporting and
occupying a bawdy house; and procuring and living off the avails of prostitution are
prohibited by the Criminal Code. The premises underlying this approach are that
prostitution has no intrinsic social value and that it can be eliminated via vigorous
enforcement of criminal law. 20
Interestingly enough there appears to be an inconsistency in this approach of
focusing on either strengthening the laws or more vigorous enforcement given that the
Fraser Committee’s whole purpose was to argue against this strategy. Similarly the
Badgley Committee argued that:
“the effects of legislative amendments focusing primarily on the public manifestations of
(prostitution) might serve the narrow purpose of "clearing the streets," but their
enactment would likely achieve little more than having the effect of displacing or
diverting most or all of these activities to being performed in out of sight private
19
Davis, S., Prostitution in Canada: The Invisible Menace or the Menace of Invisibility? 1994
http://www.walnet.org/csis/papers/sdavis.html#criminalization
20
Reanda, L., "Prostitution as a Human Rights Question: Problems and Prospects of United Nations
Action" (1991) 13 Human Rights Quarterly, p 202 - 203
18
locations. In the instance of juvenile prostitutes, such a shift in locale would not likely
dissuade them from continuing in this line of work, would make their detection by law
enforcement authorities more difficult, and would increase the opportunities for their
exploitation by pimps.” 21
It can be argued that criminalization fails to address the issues of prostitutes as an
important stakeholder group and failing with respect to the policy objective of protecting
prostitutes from exploitation and harm (from third parties). The focus of Section 213
(communicating for the purposes of prostitution) is to protect the public from the
negative effects of prostitution (especially street prostitution). An unintended outcome of
this law has the effect of endangering prostitutes, thus defeating the objectives of Section
210 – 212 (procuring, living off the avails, bawdyhouse offences).
In the criminalization model, sex workers will have a greater incentive to avoid
detection by authorities and be less concerned with health and safety in the context of
working conditions given the broad definitions of “communicating” and “public place” as
per the Criminal Code. 22 Street workers will have little time to assess the suitability of
potential customers thus increasing the risk of assault and less control over the entire
transaction, which may put them in a position of not using a condom. If a criminal record
results for the prostitute, then the economic options for finding other employment is
adversely impacted. Relatively increased levels of stress may lead some workers to cope
with alcohol or drugs thereby further worsening the situation. Furthermore, prostitutes
21
Greenwood p 80
22
Section 213(1) (a-c) communicating includes anything which affects or attempts to affect pedestrian or
vehicular traffic AND Section 213(2) -- the definition of "public place" includes any place to which the
public have express or implied access, and any motor vehicle located within public view.
19
who move indoors to avoid detection by police become subject to the bawdy house
laws.23
The criminalization model makes it difficult for prostitutes to leave the streets
(and prostitution). Therefore, the most the public can expect from criminalization is for it
to operate as a control on where street prostitution is practiced. However, in order to
keep prostitution out of certain areas it must be allowed in others. This contention is
supported by fact that Section 213 (communicating for the purposes of prostitution) was
only successful in changing the location of street prostitution where it was used in a
discretionary fashion. Even today it is evident that there are unofficially sanctioned areas
in major cities where street prostitution exists perhaps because police unofficially allow it
or because the particular locale does not command enough political clout to effect
change. 24
STAKEHOLDERS REVISITED
With respect to the stakeholder groups of prostitutes, the community and the
clients of prostitutes, the criminalization model possesses some shortcomings. With
respect to sex workers it would appear that their profession of choice is stigmatized and
they are unable to ply their trade freely and without harassment from the authorities and
are indeed marginalized by society at large. Street workers especially, face considerable
risk in their line of work. With no clear place where they can practice which is both safe
23
24
20
and accessible to clients, prostitutes will continue to push the envelope of societal
tolerance as they try to survive. 25
With respect to the community, while criminalization legislation serves to protect
the public from the “nuisance” factors related to prostitution, success in eradicating street
prostitution (the major source of “nuisance”) is a function of how police exercise the
enforcement of the relevant laws. So this paper would suggest that by and large most
communities are free from the “nuisance” factors of prostitution with the exception of the
few areas in cities where street prostitution is implicitly allowed to exist to some degree.
Clients of prostitutes in general do not seem to be well served by the current
model in that they along with prostitutes are unable to conduct their transactions in an
open transparent fashion and instead in a clandestine manner. Furthermore, issues as
variety, quality, value, and discreetness, cleanliness, and avoidance of STDs are not
adequately addressed.
B. DECRIMINALIZATION / LEGALIZATION WITH
REGULATION
The term decriminalization in the context of prostitution is used to describe a
model under which the laws against prostitution are removed – in whole or in part.
Decriminalization is usually used to refer to total decriminalization. 26 This would
include those offences dealing with the exploitation and coercion of prostitutes and is
advocated by prostitutes’ rights groups and some feminists.
25
26
http://www.faqs.org/faqs/alt-sex/prostitution/issues/
21
Most references to the term legalization in the context of prostitution refer
to any system that specifically allows some prostitution. Many (or most) societies that
allow legal prostitution do so by giving the state a degree of control over the lives and
businesses of those who work as prostitutes. Legalization has included special taxes for
prostitutes, restricting prostitutes to working in brothels or in certain zones, licenses,
registration of prostitutes and government records of individual prostitutes, and health
checks. 27 Legalization / decriminalization in conjunction with effective regulation of
prostitution would bring clear economic benefit for governments. A tax on the fee
charged by a prostitute, and the imposition of income tax on the earnings of prostitutes
would generate revenue. A similar argument could be made for brothels.
One of the most obvious and understandable arguments in favor of the
legalization and/or decriminalization of prostitution is that prostitution can be viewed as
a business-oriented relationship centered in the exchange of money for a service. It can
be regarded as an entrepreneurial endeavor, with all the advantages that self-employment
offers. It is conceivable that some may view prostitution as fulfilling the vocational wish
to provide for oneself and work with people as are other occupations. 28
The decriminalization / legalization approach seeks to affirm the place of
prostitutes in the community by removing (at least) the legal distinction between
prostitutes and the rest of society. Proponents of this approach feel specialized treatment
merely reinforces the marginalized position of prostitutes and in fact reduces rather than
increases either their quality of life or their chances to leave the profession should they
27
http://www.faqs.org/faqs/alt-sex/prostitution/issues/
28
Geis, G., Not the Law's Business: An Examination of Homosexuality, Abortion, Prostitution, Narcotics,
and Gambling in the United State. New York, Schoken Books, 1979.
22
wish to do so. 29 It should be noted that when we speak of decriminalization or
legalization of prostitution it is within the context of consensual adult sexual activity.
The Fraser Committee rejected complete decriminalization for a number of
reasons:
1. The majority of the committee was not satisfied that the more general provisions
of the law provisions were adequate to take account of "the relational exploitation
which is apparent in prostitution. Offenses such as assault, kidnapping and
extortion tend to concentrate upon single incident criminality.”
2. Removing all mention of prostitution from the Criminal Code might give the
impression that the government endorses the exploitation of prostitutes.
3. Without further discussion between "the various levels of government" there
would be no guarantee that provinces and municipalities would not be resistant to
creating regulatory regimes to "replace the present complex of criminal law
provisions." 30
When the section pertaining to the “living off the avails of prostitution” law
(Section 212(1) j) is compared with the extortion law (Section 346) (see Exhibit 1 for
relevant sections of the Criminal Code), there is little difference between the two
provisions except the reference to the financial earnings of prostitution. The Fraser
Committee mentioned the unique "relational" aspects of exploitation of prostitution as
precluding the effective use of the general criminal laws, but it is unclear what is meant
by that. If the committee meant that abuse or exploitation of prostitutes is unusual in that
the abuse is ongoing rather than a single, isolated incident of abuse, this does not
29
30
Special Committee on Pornography and Prostitution (The Fraser Committee), Pornography and
Prostitution in Canada (Ottawa: Department of Supply and Services, 1985) p 376
23
preclude the use of Section 346 (extortion), Section 265 (assault) or Section 279
(kidnapping) of the Criminal Code (see Exhibit 1). The extortion provision is not limited
to one time occurrences as evidenced by its use of plurals - "threats, accusations,
menaces". The same can be said for the assault or kidnapping provisions which allow for
multiple charges to be laid. 31
Abortion, adultery and attempted suicide are all absent from the Criminal Code
and it does not logically follow that the government is endorsing their abortion, adultery
or attempted suicide. In the case of attempted suicide and adultery, at least, their absence
can be construed as a sign that government believes such matters are not appropriate for
the purview of criminal law. In fact, the trend for the past half century has been to move
away from legislating morality. 32 Lord Wolfenden’s Committee, whose report in 1963
formed the basis for British law reform on prostitution argued:
“[the function of the criminal justice system is] to preserve public order and
decency, to protect the citizen from what is injurious or offensive and to provide
safeguards against the exploitation and corruption of others, ... It is not, in our view, the
function of the law to intervene in the private lives of citizens, or to seek to enforce any
particular code of behavior, further than is necessary to carry out the purposes of what we
have outlined.” 33
On a practical note it would seem that perception of the government’s action as
well as of the term “decency” can be construed in different ways and quite subjectively
by various categories of Canadians indicating there is at least some merit in the Fraser
31
32
33
Lord Wolfenden (1958), Soliciting for Change (Nottingham: Josephine Butler Trust, 1993) p 10
24
Committee findings on the point of the perception of the government endorsing the
exploitation of prostitutes.
The Fraser Committee’s third reason for rejecting decriminalization is significant
since local support can easily subvert legislative intentions. There are many examples of
municipalities utilizing laws other than those specifically directed at prostitutes to
constrain prostitution. Examples include France and New South Wales, Australia, which
both went through periods when street solicitation was decriminalized. General nuisance
laws were used to such an extent that arrest rates of street prostitutes equaled those made
when street solicitation was illegal. For example, in France (1987) Articles R34 ("public
display conduct likely to lead to debauchery") and R40 ("penalizing anyone who publicly
solicits a person of either sex in order to incite them to debauchery") of the French Penal
Code were used to control street solicitation. Although clearly aimed at prostitutes, these
were technically general morality laws presumably because no mention of payment for
sex was mentioned. Local authorities were able to constrain prostitution with general
provisions. 34 Municipalities employed such creative strategies as traffic diversion
schemes, changes to street lighting, and attempting to deprive prostitutes of water,
electricity and phone service. 35 More mundane methods of zoning by-laws to control
prostitution have also been employed. For example in New South Wales, Australia in the
early 1980s, although it was considered legal for individual prostitutes to operate out of
their residences, municipal councils enacted by-laws which prohibited commercial
34
Scibelli, P., "Empowering Prostitutes: A Proposal for International Legal Reform" (1987) 10 Harvard
Women's Law Journal p 149 - 150
35
Lord Wolfenden (1958), Soliciting for Change (Nottingham: Josephine Butler Trust, 1993) p 8 - 9
25
activities in residentially zoned areas, or where there was a contravention of the zoning
regulations in the Environmental Planning and Assessment Act. 36
A MODEL FOR LEGALIZED PROSTITUTION - QUEENSLAND
AUSTRALIA
To regulate prostitution in Queensland, the Prostitution Act 1999 was
implemented and is overseen by the Prostitution Licensing Authority. The legislation
was introduced to regulate the sex industry with two themes in mind: rights based public
health and corporate governance. Rights-based public health has the practical aim of
ensuring equity for all citizens in access to health care and to the conditions that promote
health, including health in the workplace. The driving force of corporate governance is to
ensure that what we do in public life is open and transparent, regardless of the type of
industry or the social context in which it operates. 37
A study conducted by the Prostitution Licensing Authority, the University of
Queensland and the Queensland University of Technology in 2003 (Selling Sex in
Queensland 2003, A Study of Prostitution in Queensland) reported findings in the three
areas of: 1) the sex worker, 2) the client, and 3) the community.
The Sex Worker
Of the 216 women interviewed, 101 worked in legal brothels, 82 were working
privately (mainly as sole operators), and 33 were street-based prostitutes. Their ages
ranged from 19 to 57 years of age (see Exhibit 2) and over half had at least one child and
36
37
Selling Sex in Queensland 2003, A Study of Prostitution in Queensland, pg 8
26
about one-quarter were either married or living in a long term relationship (see Exhibit 3)
and had a university degree. Most women stated that they entered the industry for money
among other reasons (flexible working hours, pursuit of a personal financial goal) while a
significant minority of street workers took up sex work to pay for illicit drug use (see
Exhibit 4). 38
In general, most women had good knowledge of the legal requirements of the sex
industry. Most perceived advantages to working in legalized brothels such as good
security and working conditions, and the company and support of other workers. Those
working privately and on the street viewed legal brothels as unattractive mainly as a
result of the perception that they would have to share income with the owners. Legal
brothels and private workers appeared satisfied with their occupation while street workers
were mostly dissatisfied (see Exhibit 5). 39
The general health of the workers was comparable to the general female
population. Mental health was somewhat poorer and especially in street workers (see
Exhibit 6). As a whole, the use of legal and illicit drugs clearly exceeds those in the
general population. The real distinction is between street workers, who report
problematic consumption of numerous drugs and brothel and private workers. 40
With respect to sexual and physical violence, women working in legal brothels
had a very low risk of being raped or struck by a client; private workers experienced
slightly more violence with street workers and street workers bore the brunt with greater
than 50 per cent having been raped or assaulted (see Exhibits 7 and 8). Most workers
38
Selling Sex in Queensland 2003, A Study of Prostitution in Queensland, 12
39
Selling Sex in Queensland 2003, A Study of Prostitution in Queensland. Pg 12
40
27
indicated they would report any incident of rape or assault. Street workers as a group
were more reluctant to report incidents citing a mistrust of the legal system and
experiences with police harassment, while the opposite held for brothel workers.
The legislation appears to have been effective in promoting the health and safety
for most female workers. Legal brothels appear to offer benefits for both women and
clients with a fairly low risk for health problems and violence. The legislation did not
address issues related to private workers and street workers did not benefit materially
from the change in legislation. In actuality the sex trade can be described as two sex
industries, in which only the workers in one industry (off-street) are being protected. 41
The Client
200 male clients were interviewed and most were between the ages of 24 – 44.
Clients were likely to be single and a substantial proportion either divorced or separated.
Most clients purchased sexual services between once a month and once every few
months. Clients of private workers more often preferred “exotic services” in relation to
the commonly purchased services (in order) of vaginal sex, oral sex (no ejaculation), and
hand relief. The majority of clients reported not having a regular partner. The quality of
the relationships of those clients with a regular partner appears to be poorer when
compared to the general male population. Generally the clients of brothels were less
likely to report incidents of Sexually Transmitted Infections (STI). The rates of legal and
illegal drugs for clients were generally higher than the general male population. 42
41
42
Selling Sex in Queensland 2003, A Study of Prostitution in Queensland. Pg 14 – 15
28
The Community
1,207 surveys were sent out with a response rate of 39.6 per cent. There was
universal agreement that prostitution exists in Queensland from those living in an area
where a brothel was located and those who did not. People living in proximate areas to
brothels clearly noticed their operation and perceived that prostitution was more
widespread than those people who lived in an area without a brothel. The majority of
respondents reported that the operation of brothels had no impact on their business or
personal activities with 0.8 per cent of respondents reporting an impact (see Exhibit 9).
Most respondents supported a process by which sex workers would be licensed and
registered. As a whole, respondents were not against the availability of prostitution; but
reject its public visibility. The presence of brothels in the affected geographic areas did
not create a negative response to their operation (se Exhibit 10). Respondents with strong
spiritual beliefs tended to be more negative about the morality of the sex industry. Those
without strong religious convictions tended to be less negative about the morality of the
sex trade. Overall, community attitudes towards prostitution are supportive as long as the
activities used to attract clients do not impact on the public amenity of an area. 43
STAKEHOLDERS REVISITED
With respect to prostitutes as a stakeholder group, by allowing prostitution and
regulation thereof, sex workers will have more flexibility and freedom to practice
prostitution without harassment by authorities. Furthermore, the stigma attached to their
occupation would likely decrease. Better working conditions and education and support
as well as some input into policy would be welcome. While those sex workers protected
43
29
under legislation would accrue some benefits it would seem that the situation of street
workers may not be significantly improved.
If effectively regulated the community may still avoid much of the nuisance
effects of prostitution and would likely have input into local zoning, by-laws, licensing.
It would seem that with respect to issues related to street prostitution criminal law
regulating it would be replaced by other laws and how much more effective they would
be remains unanswered except in the case where by effectively regulating prostitution
reduces the incidence of street prostitution.
(Otherwise law abiding) clients of prostitutes would benefit from a form
decriminalization or legalization with effective regulation in the form of improved
conditions for conducting transactions, and a more structured system in which to
purchase sexual services.
INDIVIDUAL PERSPECTIVES ON PROSTITUTION
A number of individuals were willing to offer their opinions or experiences as
they related to prostitution.
● Lawyer One: “The law is too gray … the system is too wishy washy … the law
should take a clear position [on prostitution] - either make it more transparent and
properly regulate it, such as they do in Amsterdam or abolish prostitution and enact
the required legislation and enforce the law. [I’m] not sure whether there would be
more people harmed than helped. Prostitutes are marginalized by society and are
placed at a disadvantage.”
● Former RCMP officer: “Prostitution should be brought out into the open and
regulated accordingly. [I think] this would make it safer for the prostitutes in terms of
30
a safer working environment and hopefully reduce the incidence of violence against
them [prostitutes]. Everybody could benefit in terms of better clarification and less
misunderstandings.”
● Toronto Police Officer in Patrol Car: “I don’t really have an opinion … I’m not
that familiar with that [the current model of regulation of prostitution in Canada].
[I’ve] never arrested anyone for prostitution and it would be pretty hard/difficult to
catch someone in the act of soliciting for prostitution … if you’re driving and you see
two people talking on the street how can you know for certain that soliciting is going
on?”
● Lawyer Two: “I haven't had a case in this area for quite a few years so I must admit
my comments may be dated. The law in this area is that prostitution is, in fact, legal.
Anyone can charge money for the performance of the sexual act; but it is illegal to
solicit or communicate for these services in public. That’s the crime [communicating
for the purpose of prostitution]. So in Canada it is legal to do it; just not talk about it!
What was happening on the streets was that the police were selectively enforcing the
prostitution / solicitation laws so the majority of prostitutes were not charged. Those
that were charged generally pled guilty at the earliest opportunity and were given
discharges on first conviction and fines for subsequent offenses. The result was that
the police became not only the investigators, but also the judge and jury as well since
arrest and conviction amounted to the same thing. Prostitutes have lost all legal rights
in practical terms as judges, prosecutors and juries have the duty to fairly evaluate the
evidence prior to conviction; police have no such obligation. In that context
legislation could be improved upon.”
31
Conclusion
Canada is home to a diverse community that has competing needs, interests,
expectations and experiences. Therefore it is essential we as Canadians do not regard
ourselves as being so innocent, moral and righteousness as to deny that there are subjects
such as prostitution that need to be tackled by the different levels of government in an
innovative, open and transparent manner.
The problem of prostitution can be viewed as - until legislation is designed in
such a way that it offers guidance about where prostitutes can work, efforts to eradicate
the street trade will probably be ineffective and discriminatory and do little to protect
either residents from nuisance or prostitutes from violence. 44
In this light it seems that given the ambiguity and the inherent contradiction in the
current model of prostitution regulation (i.e. the criminalization model) that it can be
construed to be ineffective in its two major policy objectives of 1) the protection of
prostitutes from exploitation and harm (from third parties) and 2) the protection of the
public from the “nuisance effects” of prostitution. Following from this line of reasoning
either some form of decriminalization or legalization in conjunction with effective
regulation that serves to balance the interests of stakeholders would be preferred to the
current model of regulation.
Through effective regulation in the short-term and addressing the fundamental
problems (through social policy initiatives)concerning the people who practice the
44
Greenwood p 80
32
profession in the longer-term, a better compromise may be found between prostitutes and
the communities in which they operate and the general public.
33
EXHIBIT 1 CRIMINAL CODE SECTIONS 197, 198, 199, 210, 211,
212, 213, 265.
Disorderly Houses, Gaming, and Betting
197. (1) In this Part,
"bet" means a bet that is placed on any contingency or event that is to take place in or out
of Canada, and without restricting the generality of the foregoing, includes a bet that is
placed on any contingency relating to a horse-race, fight, match or sporting event that is
to take place in or out of Canada;
"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;
"common betting house" means a place that is opened, kept or used for the purpose of
(a) enabling, encouraging or assisting persons who resort thereto to bet between
themselves or with the keeper, or
(b) enabling any person to receive, record, register, transmit or pay bets or to announce
the results of betting;
"common gaming house" means a place that is
(a) kept for gain to which persons resort for the purpose of playing games, or
(b) kept or used for the purpose of playing games
(i) in which a bank is kept by one or more but not all of the players,
(ii) in which all or any portion of the bets on or proceeds from a game is paid, directly or
indirectly, to the keeper of the place,
(iii) in which, directly or indirectly, a fee is charged to or paid by the players for the
privilege of playing or participating in a game or using gaming equipment, or
(iv) in which the chances of winning are not equally favourable to all persons who play
the game, including the person, if any, who conducts the game;
"disorderly house" means a common bawdy-house, a common betting house or a
common gaming house;
"game" means a game of chance or mixed chance and skill;
"gaming equipment" means anything that is or may be used for the purpose of playing
games or for betting;
keeper" includes a person who
(a) is an owner or occupier of a place,
(b) assists or acts on behalf of an owner or occupier of a place,
(c) appears to be, or to assist or act on behalf of an owner or occupier of a place,
(d) has the care or management of a place, or
(e) uses a place permanently or temporarily, with or without the consent of the owner or
occupier thereof;
"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;
34
"public place" includes any place to which the public have access as of right or by
invitation, express or implied.
(2) A place is not a common gaming house within the meaning of paragraph (a) or
subparagraph (b)(ii) or (iii) of the definition "common gaming house" in subsection (1)
while it is occupied and used by an incorporated genuine social club or branch thereof, if
(a) the whole or any portion of the bets on or proceeds from games played therein is not
directly or indirectly paid to the keeper thereof; and
(b) no fee is charged to persons for the right or privilege of participating in the games
played therein other than under the authority of and in accordance with the terms of a
license issued by the Attorney General of the province in which the place is situated or by
such other person or authority in the province as may be specified by the Attorney
General thereof.
(3) The onus of proving that, by virtue of subsection (2), a place is not a common gaming
house is on the accused.
(4) A place may be a common gaming house notwithstanding that
(a) it is used for the purpose of playing part of a game and another part of the game is
played elsewhere;
(b) the stake that is played for is in some other place; or
(c) it is used on only one occasion in the manner described in paragraph (b) of the
definition "common gaming house" in subsection (1), if the keeper or any person acting
on behalf of or in concert with the keeper has used another place on another occasion in
the manner described in that paragraph.
Presumptions
198. (1) In proceedings under this Part,
(a) evidence that a peace officer who was authorized to enter a place was willfully
prevented from entering or was willfully obstructed or delayed in entering is, in the
absence of any evidence to the contrary, proof that the place is a disorderly house;
(b) evidence that a place was found to be equipped with gaming equipment or any device
for concealing, removing or destroying gaming equipment is, in the absence of any
evidence to the contrary, proof that the place is a common gaming house or a common
betting house, as the case may be;
(c) evidence that gaming equipment was found in a place entered under a warrant issued
pursuant to this Part, or on or about the person of anyone found therein, is, in the absence
of any evidence to the contrary, proof that the place is a common gaming house and that
the persons found therein were playing games, whether or not any person acting under
the warrant observed any persons playing games therein; and
(d) evidence that a person was convicted of keeping a disorderly house is, for the purpose
of proceedings against any one who is alleged to have been an inmate or to have been
found in that house at the time the person committed the offence of which he was
convicted, in the absence of any evidence to the contrary, proof that the house was, at that
time, a disorderly house.
(2) For the purpose of proceedings under this Part, a place that is found to be equipped
with a slot machine shall be conclusively presumed to be a common gaming house.
(3) In subsection (2), "slot machine" means any automatic machine or slot machine
35
(a) that is used or intended to be used for any purpose other than vending merchandise or
services, or
(b) that is used or intended to be used for the purpose of vending merchandise or services
if
(i) the result of one of any number of operations of the machine is a matter of chance or
uncertainty to the operator,
(ii) as a result of a given number of successive operations by the operator the machine
produces different results, or
(iii) on any operation of the machine it discharges or emits a slug or token,
but does not include an automatic machine or slot machine that dispenses as prizes only
one or more free games on that machine.
Search
199. (1) A justice who is satisfied by information on oath that there are reasonable
grounds to believe that an offence under section 201, 202, 203, 206, 207 or 210 is being
committed at any place within the jurisdiction of the justice may issue a warrant
authorizing a peace officer to enter and search the place by day or night and seize
anything found therein that may be evidence that an offence under section 201, 202, 203,
206, 207 or 210, as the case may be, is being committed at that place, and to take into
custody all persons who are found in or at that place and requiring those persons and
things to be brought before that justice or before another justice having jurisdiction, to be
dealt with according to law.
2) A peace officer may, whether or not he is acting under a warrant issued pursuant to
this section, take into custody any person whom he finds keeping a common gaming
house and any person whom he finds therein, and may seize anything that may be
evidence that such an offence is being committed and shall bring those persons and things
before a justice having jurisdiction, to be dealt with according to law.
(3) Except where otherwise expressly provided by law, a court, judge, justice or
provincial court judge before whom anything that is seized under this section is brought
may declare that the thing is forfeited, in which case it shall be disposed of or dealt with
as the Attorney General may direct if no person shows sufficient cause why it should not
be forfeited.
(4) No declaration or direction shall be made pursuant to subsection (3) in respect of
anything seized under this section until
(a) it is no longer required as evidence in any proceedings that are instituted pursuant to
the seizure; or
(b) the expiration of thirty days from the time of seizure where it is not required as
evidence in any proceedings.
(5) The Attorney General may, for the purpose of converting anything forfeited under this
section into money, deal with it in all respects as if he were the owner thereof.
(6) Nothing in this section or in section 489 authorizes the seizure, forfeiture or
destruction of telephone, telegraph or other communication facilities or equipment that
may be evidence of or that may have been used in the commission of an offence under
section 201, 202, 203, 206, 207 or 210 and that is owned by a person engaged in
providing telephone, telegraph or other communication service to the public or forming
part of the telephone, telegraph or other communication service or system of that person.
36
(7) Subsection (6) does not apply to prohibit the seizure, for use as evidence, of any
facility or equipment described in that subsection that is designed or adapted to record a
communication.
Bawdy-houses
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.
(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.
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.
(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,
37
(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,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten
years.
(2) Notwithstanding 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.
(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.
(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).
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.
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
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.
(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.
Assault
265. (1) A person commits an assault when
38
(a) without the consent of another person, he applies force intentionally to that other
person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he
has, or causes that other person to believe on reasonable grounds that he has, present
ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or
impedes another person or begs.
(2) This section applies to all forms of assault, including sexual assault, sexual assault
with a weapon, threats to a third party or causing bodily harm and aggravated sexual
assault.
(2) This section applies to all forms of assault, including sexual assault, sexual assault
with a weapon, threats to a third party or causing bodily harm and aggravated sexual
assault.
(4) Where an accused alleges that he believed that the complainant consented to the
conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient
evidence and that, if believed by the jury, the evidence would constitute a defense, shall
instruct the jury, when reviewing all the evidence relating to the determination of the
honesty of the accused's belief, to consider the presence or absence of reasonable grounds
for that belief.
Kidnapping, Hostage Taking and Abduction

279. (1) Every person commits an offence who kidnaps a person with intent
(a) to cause the person to be confined or imprisoned against the person's will;
(b) to cause the person to be unlawfully sent or transported out of Canada against the
person's will; or
(c) to hold the person for ransom or to service against the person's will.
1.1) Every person who commits an offence under subsection (1) is guilty of an indictable
offence and liable
(a) where a firearm is used in the commission of the offence, to imprisonment for life and
to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
(2) Every one who, without lawful authority, confines, imprisons or forcibly seizes
another person is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding ten years;
or
(b) an offence punishable on summary conviction and liable to imprisonment for a term
not exceeding eighteen months.
3) In proceedings under this section, the fact that the person in relation to whom the
offence is alleged to have been committed did not resist is not a defence unless the
accused proves that the failure to resist was not caused by threats, duress, force or
exhibition of force. 279.1 (1) Every one takes a person hostage who
(a) confines, imprisons, forcibly seizes or detains that person, and
(b) in any manner utters, conveys or causes any person to receive a threat that the death
of, or bodily harm to, the hostage will be caused or that the confinement, imprisonment or
detention of the hostage will be continued
39
with intent to induce any person, other than the hostage, or any group of persons or any
state or international or intergovernmental organization to commit or cause to be
committed any act or omission as a condition, whether express or implied, of the release
of the hostage.
(2) Every person who takes a person hostage is guilty of an indictable offence and liable
(3) Subsection 279(3) applies to proceedings under this section as if the offence under
this section were an offence under section 279.
Extortion
346. (1) Every one commits extortion who, without reasonable justification or excuse and
with intent to obtain anything, by threats, accusations, menaces or violence induces or
attempts to induce any person, whether or not he is the person threatened, accused or
menaced or to whom violence is shown, to do anything or cause anything to be done.
1.1) Every person who commits extortion is guilty of an indictable offence and liable
(2) A threat to institute civil proceedings is not a threat for the purposes of this section.
Source: Department of Justice Canada, http://laws.justice.gc.ca/en/c-46/text.html
40
EXHIBIT 2 AGE OF RESPONDENTS BY SEX INDUSTRY SECTOR
Source: Selling Sex in Queensland 2003, A Study of Prostitution in Queensland.

EXHIBIT 3 MARITAL STATUS BY SEX INDUSTRY SECTOR

41
EXHIBIT 4 REASONS PROVIDED FOR STARTING IN SEX TRADE
INDUSTRY BY CURRENT SECTOR

42
EXHIBIT 5 JOB SATISFACTION BY CURRENT TYPE OF WORK

43
EXHIBIT 6 COMPARING THE SELF REPORTED HEALTH OF
FEMALE SEX WORKERS WITH AGE-MATCHED WOMEN
FROM THE GENERAL POPULATION

44
EXHIBIT 7 PROPORTION OF RESPONDENTS REPORTING EVER
HAVING BEEN RAPED OR BASHED BY CURRENT TYPE OF
WORK

EXHIBIT 8 NUMBER OF RESPONDENTS REPORTING EVER

HAVING BEEN RAPED OR BASHED BY CURRENT TYPE OF
WORK

45
EXHIBIT 9 RESPONDENTS BELIEFS ABOUT WHETHER A
BROTHEL HAS AFFECTED THEIR BUSINESS OR
PERSONAL ACTIVITIES IN AREAS WITH OR WITHOUT
BROTHELS

EXHIBIT 10 RESPONDENTS ANSWERING ‘YES’ TO A SERIES OF

QUESTION ABOUT SEX WORK

46
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PUBL 6140.

July 30, 2004

prostitution is defective. While the issue of juvenile prostitution is an important one, it

this paper is on adult prostitution.

A brief background of the sex trade industry is provided along with an

explanation of the early prostitution legislation regime in Canada. An explanation of the

current model of legislating prostitution in Canada (the criminalization model) is

provided and followed by a critical analysis of the criminalization model. A discussion

of decriminalization / legalization with effective regulation is offered as an alternative to

criminalization and the model of regulation currently employed in Queensland, Australia

is highlighted as an example, following which conclusions are drawn.

PROSTITUTION: AN INTERNATIONAL PERSPECTIVE

to control and eradicate it through criminal sanctions, it remains a feature of most

decades of an international women's movement, prostitutes in many societies are

subjected to extraordinary public regulations: ghettoization, arrest, jail or prison

sentencing, fines, ridicule, shaming, shunning, and deportation. Additionally, prostitutes

murdered by unknown serial killers. 3

and the price that she is able to command. 4

EARLY PROSTITUTION LEGISLATION IN CANADA

CURRENT PROSTITUTION LEGISLATION IN CANADA

(4) purchase of sexual services from youths and children. 7

Procuring and Living on the Avails

procuring of persons to become prostitutes or the enticing of persons to become inmates

from living "wholly or in part on the avails of prostitution of another person".

Bawdy House Offences

per Section 197. Under Section 210, it is an offense to be found in or to be an inmate of a

as a common bawdy house. Section 211 prohibits transporting or offering to transport

in establishing whether or not a place is a common bawdy house.

the law". Thus rendering clients of prostitutes vulnerable to prosecution.

Sexual Services from Youths

relating to bawdy houses, living on the avails of prostitution, procuring, communicating,

breaking the law as noted by Lowman:

“The prostitute has been legislatively encircled; prostitution is permitted as long

as it is not practiced. It is virtually impossible to conceive of a location where

POLICY OBJECTIVES OF PROSTITUTION LEGISLATION

The primary objectives of the government policy with respect to prostitution

There are a multitude of stakeholders in the context of regulating prostitution and

this paper is on prostitutes, the community and the clients of prostitutes.

so far as practicable in the context of being members of society in general. In other

words – to avoid being marginalized by society at large. A significant concern would

include safety (from harm / violence).

want to be unwillingly solicited by prostitutes. Communities would likely want

or perceived) should be minimized or eliminated in so far as practicable.

light, clients bear similarities to consumers of “normal” goods and services. An

respects law abiding citizens.

that the transaction is consensual and not coerced.

under consensual conditions absent of duress or coercion.

The various levels of government would be concerned with balancing the

competing interests of the various stakeholder groups.

RESEARCH ON PROSTITUTION IN CANADA

recommendations for reform of social and legal policy relating to it.

examine the problems of juvenile prostitution.

pornography and prostitution, and to recommend solutions to the various problems

in terms of sex workers' socio-demographics characteristics:

career between 16 and 20.

depending on study site.

sexual abuse (28% to 44%).

rather than from poor backgrounds.

Violence Against Prostitutes

Montreal, researchers were surprised by the recurrent accounts of prostitutes being

confronted by armed assailants, stabbed, threatened, beaten up and robbed. In 1988 a

sexual and physical violence. Interviews conducted in 1988 in Vancouver of women