Prostitution in Canada

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Prostitution in Canada is legal as there are no laws prohibiting the exchange of sex for money or other consideration. On the 20th December 2013, the Supreme Court of Canada found the laws prohibiting brothels, public communication for the purpose of prostitution, and living on the profits of prostitution to be unconstitutional. The ruling gave the Canadian parliament 12 months to rewrite the prostitution laws with a stay of effect so that the current laws remain in force.[1] Amending legislation was introduced in June 2014.

While the prohibition of the activities surrounding the sex trade makes it difficult to practice prostitution without breaking any law, the act of exchanging sex for money has never been illegal in Canada, a situation which has created and continues to create confusion and controversy. The prostitution laws have been largely unchanged since the early 19th century despite frequent commissions, studies and constitutional challenges since the introduction of the Canadian Charter of Rights and Freedoms in 1982.

There is a general agreement that the status quo of prostitution in Canada is problematic, but there is no consensus on what should be done.[2] There is an ideological disagreement between those who want to see prostitution eliminated (prohibitionism), generally because they view it either as an exploitative or unacceptable part of society, and those who view prostitution as a transaction between consenting adults and advocate decriminalisation. The term "sex work" is used interchangeably with "prostitution" in this article, in accordance with the World Health Organisation (WHO 2001; WHO 2005) and the United Nations (UN 2006; UNAIDS 2002).[3] However the Conservative majority Government of Canada is committed to a prohibitionist position, as laid out in its new legislation introduced in 2014.

History[edit]

Canada inherited laws from the United Kingdom. The first recorded laws dealing with prostitution were in Nova Scotia in 1759. Following Canadian Confederation, the laws were consolidated in the Criminal Code. These dealt principally with pimping, procuring, operating brothels and soliciting. Most amendments to date have dealt with the latter, originally classified as a vagrancy offence, this was amended to soliciting in 1972, and communicating in 1985. Since the Charter of Rights and Freedoms became law, the constitutionality of Canada's prostitution laws have been challenged on a number of occasions, successfully so in 2013, leading to a new legislative approach introduced in 2014.

Legal status[edit]

While the exchange of sexual gratification for consideration between consenting adults is legal, the law prohibits those activities Parliament deems to be a threat to public order or offensive to public decency, under the powers given to the federal government.[4]

The activities related to sex work that are prohibited by law include operating a premises (sexual services establishment or brothel) where such activities take place, being found in such an establishment, procuring for such purposes, or communicating such services (soliciting) in a public place are illegal, making it difficult to engage in prostitution without breaking any law. Automobiles are considered public space if they can be seen. On the other hand, working as an independent sex worker and private communication for such purposes (telephone, internet, e-mail, etc.) is legal. This ambivalence can cause confusion[4][5] leading to one judge referring to the laws as 'Alice-in-Wonderland'[6] and the Chief Justice of the Supreme Court to refer to the situation as "bizarre":

We find ourselves in an anomalous, some would say bizarre, situation where almost everything related to prostitution has been regulated by the criminal law except the transaction itself. The appellants' argument then, more precisely stated, is that in criminalizing so many activities surrounding the act itself, Parliament has made prostitution de facto illegal if not De_jure illegal., per Dickson CJ at page 44[7]

The legal situation has also been challenged in the rulings of two courts in Ontario in Bedford v. Canada—the respondents/appellants are sex worker activists Terri-Jean Bedford, Amy Lebovitch and Valerie Scott—which described the laws as 'ancient' and emphasised that the purpose of the laws was not to eradicate prostitution but to mitigate harms emanating from it: "We are satisfied that the challenged provisions are not aimed at eradicating prostitution, but only some of the consequences associated with it, such as disruption of neighbourhoods and the exploitation of vulnerable women by pimps." OCA at 169[8]

In a dissenting opinion (2:3) regarding the potential harm of the laws, the appellate justices wrote:

The 1985 addition of the communicating provision to the existing bawdy-house and living on the avails provisions created an almost perfect storm of danger for prostitutes. Prostitutes were first driven to the streets, and then denied the one defence, communication, that allowed them to evaluate prospective clients in real time. OCA at 364

'Prostitution' is not defined in Canadian statute law, but is based on case law which deems that three elements are necessary to establish that prostitution is taking place: (i) provision of sexual services, (ii) the indiscriminate nature of the act (soliciting rather than choosing clients), and (iii) the necessity for some form of payment.[4]

On October 25, 2012, the Supreme Court of Canada granted leave to appeal and cross-appeal the Ontario Court of Appeal Bedford decision.[9] The court also granted the motion to stay the Ontario Court of Appeal decision until judgement is passed, meaning that the Criminal Code sections at stake were still in-force in Ontario. Chief Justice Beverley McLachlan wrote:

These appeals and the cross-appeal are not about whether prostitution should be legal or not. They are about whether the laws Parliament has enacted on how prostitution may be carried out pass constitutional muster. I conclude that they do not. I would therefore make a suspended declaration of invalidity, returning the question of how to deal with prostitution to Parliament.[10]

In a decision dated 20 December 2013, the Supreme Court of Canada struck down the laws in question. They delayed the enforcement of their decision for one year—also applicable to the Ontario sections—to give the government a chance to write new laws. Following the announcement of the decision, Scott stated in the media that, regardless of the decision, sex workers must be involved in the process of constructing the new legislation: "The thing here is politicians, though they may know us as clients, they do not understand how sex work works. They won't be able to write a half-decent law. It will fail. That's why you must bring sex workers to the table in a meaningful way."[10][11]

In response, Peter MacKay the Minister of Justice introduced amending legislation, C-36[12] the "Protection of Communities and Exploited Persons Act" on June 4 2014, [13] which received first reading. The proposed act is criticized by sex workers as actually worse for their safety, by forcing the sex industry further underground, than the previous laws.[14]

Provisions of Criminal Code[edit]

The Criminal Code of Canada makes the following unlawful:[15]

  • owning, managing, leasing, occupying, or being found in a bawdy house, as defined in Section 197 (Section 210) declared invalid by the Ontario Court of Appeal, March 2012[16]
  • transporting anyone to a bawdy house (Section 211)
  • procuring (Section 212)
  • Living on the avails of prostitution declared invalid by the Ontario Court of Appeal, March 2012, except in circumstances of exploitation[17]
  • paying for sex with anyone under the age of 18 (Section 212[4])
  • communication in a public place for the purposes of prostitution (Section 213)
  • and transporting someone for the purpose of exploiting them or facilitating their exploitation (Section 279). This does not specify for any particular purpose, such as sexual exploitation

On March 26, 2012 the Ontario Court of Appeal struck down part of two provisions, subject to appeal, and the declaration is not in effect.[8] An appeal was lodged with the Supreme Court of Canada on April 25, 2012,[18] including an extension of the stay in effect. Lawyers for the respondents pointed out that the last minute appeal left them little time to respond.[19][20]

Canadian Criminal Code C-46[edit]

PART VI INVASION OF PRIVACY (Sections 183-196)[21]
183 (a) xxxiv-xxxviii Offences
Provides for prostitution related offences to be included under authorisation to intercept communication.

PART VII DISORDERLY HOUSES, GAMING AND BETTING (Sections 197-213)

197 Definitions[22]

“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; The Ontario Court of Appeal held the word 'prostitution' should be struck, see note above

“disorderly house” means a common bawdy-house, a common betting house or a common gaming house;

“place” includes any place, whether or not (a) it is covered or enclosed, (b) it is used permanently or temporarily, or (c) any person has an exclusive right of user with respect to it;

“prostitute” means a person of either sex who engages in prostitution;

“public place” includes any place to which the public have access as of right or by invitation, express or implied.

Bawdy-houses (Sections 210-1)[23]

Keeping common bawdy-house
See note above
210. (1) Every one who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. (Amended to 5 years, 2010)[24]

Landlord, inmate, etc.

(2) Every one who (a) is an inmate of a common bawdy-house, (b) is found, without lawful excuse, in a common bawdy-house, or (c) as owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or control of any place, knowingly permits the place or any part thereof to be let or used for the purposes of a common bawdy-house, is guilty of an offence punishable on summary conviction.

Notice of conviction to be served on owner

(3) Where a person is convicted of an offence under subsection (1), the court shall cause a notice of the conviction to be served on the owner, landlord or lessor of the place in respect of which the person is convicted or his agent, and the notice shall contain a statement to the effect that it is being served pursuant to this section.

Duty of landlord on notice

(4) Where a person on whom a notice is served under subsection (3) fails forthwith to exercise any right he may have to determine the tenancy or right of occupation of the person so convicted, and thereafter any person is convicted of an offence under subsection (1) in respect of the same premises, the person on whom the notice was served shall be deemed to have committed an offence under subsection (1) unless he proves that he has taken all reasonable steps to prevent the recurrence of the offence.

Transporting person to bawdy-house
211. Every one who knowingly takes, transports, directs, or offers to take, transport or direct, any other person to a common bawdy-house is guilty of an offence punishable on summary conviction.

Procuring
212. (1) Every one who
(a) procures, attempts to procure or solicits a person to have illicit sexual intercourse with another person, whether in or out of Canada,
(b) inveigles or entices a person who is not a prostitute to a common bawdy-house for the purpose of illicit sexual intercourse or prostitution,
(c) knowingly conceals a person in a common bawdy-house,
(d) procures or attempts to procure a person to become, whether in or out of Canada, a prostitute,
(e) procures or attempts to procure a person to leave the usual place of abode of that person in Canada, if that place is not a common bawdy-house, with intent that the person may become an inmate or frequenter of a common bawdy-house, whether in or out of Canada,
(f) on the arrival of a person in Canada, directs or causes that person to be directed or takes or causes that person to be taken, to a common bawdy-house,
(g) procures a person to enter or leave Canada, for the purpose of prostitution,
(h) for the purposes of gain, exercises control, direction or influence over the movements of a person in such manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution with any person or generally,
(i) applies or administers to a person or causes that person to take any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower that person in order thereby to enable any person to have illicit sexual intercourse with that person, or
(j) lives wholly or in part on the avails of prostitution of another person
in circumstances of exploitation (italicized phrase appended by the Ontario Court of Appeal - see notes above)
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Living on the avails of prostitution of person under eighteen

(2) Despite paragraph (1)(j), every person who lives wholly or in part on the avails of prostitution of another person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of two years.

Aggravated offence in relation to living on the avails of prostitution of a person under the age of eighteen years

(2.1) Notwithstanding paragraph (1)(j) and subsection (2), every person who lives wholly or in part on the avails of prostitution of another person under the age of eighteen years, and who (a) for the purposes of profit, aids, abets, counsels or compels the person under that age to engage in or carry on prostitution with any person or generally, and (b) uses, threatens to use or attempts to use violence, intimidation or coercion in relation to the person under that age, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years but not less than five years.

Presumption

(3) Evidence that a person lives with or is habitually in the company of a prostitute or lives in a common bawdy-house is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution, for the purposes of paragraph (1)(j) and subsections (2) and (2.1).

Offence — prostitution of person under eighteen

(4) Every person who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years and to a minimum punishment of imprisonment for a term of six months.

Offence in relation to prostitution
213. (1) Every person who in a public place or in any place open to public view (a) stops or attempts to stop any motor vehicle, (b) impedes the free flow of pedestrian or vehicular traffic or ingress to or egress from premises adjacent to that place, or (c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction.

Definition of “public place”

(2) In this section, “public place” includes any place to which the public have access as of right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view.

PART XIV JURISDICTION (Sections 468-492)

Sections 487.04 and 487.055 allow the ordering of a DNA test[25]

Section 490.011 allows those convicted of crimes relating to prostitution to be entered onto the Sex Offender Register.[26]

PART XVI COMPELLING APPEARANCE OF ACCUSED BEFORE A JUSTICE AND INTERIM RELEASE (Sections 493-534)

Judicial Interim Release

Section 515 allows a justice to release an accused on an undertaking on conditions. In practice this has meant imposing boundary restrictions on the accused, so that they may be excluded from designated neighbourhoods. Breach of the condition is may be subject to imprisonment.[27]

Regulations[edit]

Section 467.11(4) allows the Government to respond rapidly to organised crime by amending the Criminal Code through Order in Council rather than by parliamentary legislation. A regulation passed on July 13, 2010 was published in the Canada Gazette on August 4, and thus became law. This makes keeping a bawdy house a "serious offence" and therefore subject to 5 years imprisonment.[24][28][29] The Opposition were quick to challenge such a move, which bypassed parliamentary debate and tried to have the matter referred to the Public Safety Committee.[30]

Constitutional and case law[edit]

The passage of the Canadian Charter of Rights and Freedoms in 1982 allowed for the provision of challenging the constitutionality of laws governing prostitution in Canada in addition to interpretative case law. Other legal proceedings have dealt with ultra vires issues (whether a jurisdiction, such as a Provincial Government or municipality, has the powers to legislate on the matter).

In 1990, the Supreme Court of Canada upheld the law which bans public solicitation of prostitution, arguing that the law had the goal to abolish prostitution, which was a valid goal. Reference re ss. 193 and 195.1 of Criminal Code, (the Prostitution Reference), [1990] 1 S.C.R. 1123 is a decision of the Supreme Court of Canada on the right to freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms, and on prostitution. The Court held that, although the criminal code provision that prohibited communication for the purpose of engaging in prostitution was in violation of the right to freedom of expression, it could be justified under section 1 of the Charter and so it was upheld. The majority found, with a 5:2 split and both women dissenting that the purpose of eliminating prostitution was a valid goal, and that the provision was rationally connected and proportional to that goal. Accordingly, the provision was upheld.

In 2010 a decision of the Ontario Superior Court in Bedford v. Canada held that the key provisions of the Criminal Code dealing with prostitution (Keeping a bawdy house; Living of the avails; Soliciting or Communicating for the purpose) were invalid, but a stay of effect was put in place. This was appealed by the crown resulting in a decision by the Ontario Court of Appeal on March 26, 2012.[8] That court upheld the lower court's ruling on bawdy houses, modified the ruling on living on the avails to make exploitation a criminal offence, but reversed the decision on soliciting, holding that the effect on communities justified the limitation. Two of the five judges dissented from the last ruling, stating that the law on solicitation was not justifiable. The court continued a stay of effect of a further twelve months on the first provision, and thirty days on the second.

Both parties had up to sixty days to appeal this decision to the Supreme Court of Canada and on April 25, the federal government stated it would do so.[31] On October 25, 2012, the Supreme Court of Canada agreed to hear the appeal. [32][33] The Supreme Court also agreed to hear a cross-appeal by sex-trade workers on the Court of Appeal for Ontario's decision to ban solicitation. The Supreme Court of Canada heard the case on June 13, 2013[34] and overturned all restrictions on sex work, ruling that a ban on solicitation and brothels violated prostitutes' rights to safety.[35]

Meanwhile a related challenge was mounted in British Columbia in 2007,[36] but did not proceed due to a procedural motion by the Attorney General of Canada seeking dismissal on the grounds of lack of standing by the litigants. This was upheld by the BC Supreme Court in 2008, but successfully appealed in 2010. The Attorney General then appealed this decision of the British Columbia Court of Appeal to the Supreme Court of Canada who released their decision on September 21, 2012. They dismissed the appeal enabling the case to once again proceed in the court of first instance.[37]

Demographics[edit]

Justice Statistics[edit]

The Canadian Centre for Justice Statistics report Street Prostitution in Canada (1993) stated that police activity is mainly directed at the street level. Over 10,000 prostitution-related incidents were reported in 1992; 95% communicating offences and 5% bawdy-house and pimping offences.

In 1997, they reported a sharp increase in the number of prostitution-related incidents recorded by police for 1995, following two years of decline. Since these are police figures they are just as likely to reflect enforcement rather than actual activity.[38] The report also stated that in the period 1991-5, 63 known prostitutes were murdered (5% of all women killed in Canada).[4]

Separate reports have not been published since, but included in Crime Statistics in Canada. Data from the 2007 report show 5,679 offences in 2006 (17/100,000 population), and 4,724 in 2007 (14). This translates into a change in -17.6% between 2006 and 2007, and -27.6% between 1998 and 2007.[39]

Other[edit]

The exact number of people in sex work is not known, since this cannot be collected reliably. Estimates vary widely, and should be interpreted with caution.

About 10% to 33% of all prostitutes have been estimated to work primarily outside, and are thus more visible.[40] The 2006 Subcommittee on Solicitation estimated 5-20%.[2]

According to some estimates, most sex workers are young women (average 22-25), who began working between 16 and 20, most are single, and estimates of the number of prostitutes who have children suggest this is between 30-70%. In some field studies, 62% of prostitutes in Vancouver, 50% in Toronto, and 69% in Montréal claimed that they worked for themselves, while the presence and influence of pimps was more extensive in the Maritimes and on the Prairies. Drug use has been found to vary substantially by region and gender: it is highest in the Atlantic provinces, lowest in Québec, and appears to be a problem for the men more than the women. However, all these figures need to be interpreted with caution and compared to the general population.[40]

A 1998 poll suggested 7% of Canadian men have paid for sex at least once in their life.[41] This is much lower than in the United States, where in 1994, 18% of men stated they had paid for sex[42] and 15% in 2004.[43] However, these polls cannot be directly compared because the questions asked in each were not identical.

Street prostitution[edit]

Street prostitution may be connected to other illegal activities such as drug addiction, pimping, and criminal gangs[citation needed]. While authorities may "close their eyes" to escort or dating services, "massage parlors", "holistic centers", or "saunas" which may be fronts for prostitution, street prostitution is considered[by whom?] a more serious problem because of its visibility leading to citizen action.[citation needed] Prostitution is more common in big cities than in small towns or rural places.[citation needed]

Nearly all law enforcement of the anti-prostitution laws concerns the people involved in street prostitution, with the other forms of prostitution being virtually ignored. The enforcement generally focuses on the prostitutes, and not on their customers.[44]

Effects of section 213 (communicating)[edit]

More than 90% of prosecutions are under section 213 (communicating). Consequently it has become the target of criticism that, while designed to prevent public nuisance, it ignores public safety. In practice, the communication law has not altered the extent of street based sex work, but merely displaced it, often to more dangerous locations.[15] The STAR project showed that relocation to poorly lit underpopulated areas reduced unwelcome attention by police and residents but increased the likelihood of 'bad dates'.[2] Displacement and relocation also isolates sex workers from agencies and social and health services who have reported difficulty reaching street workers because of this section. Camaraderie and mutual protection (spotting) are important to sex workers' health and safety; when they are isolated they are removed from sources of information on clients, and health and safety information.[citation needed]

Another issue is that section 213 places sex workers in greater risk of violence when they have to conduct negotiations with clients quickly in order to avoid police attention. Negotiation with clients is crucial in assessing the risk of danger. Hurried discussions initially may undermine the sex worker's bargaining position, making them more vulnerable.[citation needed]

An examination of the statistics on section 313 shows both gender and role imbalance in prosecution and sentencing. Women, who are in the majority, receive higher conviction rates and harsher sentences than male workers, clients or third parties. In 2003-4, 68% of women were found guilty once charged compared to 30% for men.[citation needed]

Prostitution issues by province[edit]

British Columbia[edit]

While sex work exists in all cities, one that has received a large amount of publicity is Vancouver[45] due to poor socio-economic conditions in the Downtown Eastside, and the murder of a large number of women working in the sex trade, a disproportionate number of whom were aboriginal. The authorities here have been more tolerant of prostitution leading some people to believe that some forms of prostitution are legal in the city.[citation needed] "Body rub parlours" may be establishments in which sex work takes place, which would be illegal under bawdy house and communicating laws. Vancouver's milder climate may favour street prostitution. However sex workers and their support services in Vancouver have been very organised and vocal in responding to media criticisms.[46][47][48][49] They have an uneasy relationship with the police.[50][51] British Columbia has also been the area of Canada where most research has been carried out.

The Robert Pickton murder of sex workers from the downtown eastside of Vancouver in the 1990s and subsequent trials focussed national attention on the safety of sex workers under current legislation, which eventually led to court cases challenging the constitutionality of those laws. In 2011 a public inquiry into missing and murdered women again drew attention to the interaction between safety and legislation.[52][53][54] It is most likely that Pickton was able to kill those women, specifically because they'd been displaced from the Downtown core in the "stroll" bounded by Helmcken Street north Seymour to Nelson, east to Richards and south to Helmcken Street to the industrial area in the DERA.

In 2012, Stephen Charlie of Victoria was convicted on charges relating to the prostitution of a child online. He was sentenced to three years in prison.[55]

Ontario[edit]

In Ontario, women arrested for offenses related to prostitution are placed in a Streetlight Support Services program through the criminal justice system.[56] These women are required to take the program by court order[57] as an alternative sentence to imprisonment or a fine.[58] The program is composed of a one-day class on the subject of choices and an eight-week life skills-based course financed by the proceeds from a john school.[59]

Prostitution and health[edit]

A study was reported as showing that 26% of Vancouver's female sex workers were infected with HIV, and that Vancouver's overall prevalence of HIV was about 1.21%, six times higher than the national rate. Dr. Patricia Daly, chief medical health officer for Vancouver Coastal Health, was quoted as saying "Our message has always been that you should assume sex trade workers are HIV positive". This remark was criticised as offensive and inaccurate. Subsequent correspondence showed this figure to be misleading. The data actually represented injectable drug users attending health services. With more health related problems in middle age groups[60]

Saskatchewan's HIV problems have received some publicity when health authorities blamed injectable drug users (IDU) and street sex workers in 2009. However HIV is uncommon amongst sex workers unless they are also IDUs and the Regina Street Workers Advocacy Project was critical of statements that demonised one group.[61]

Prostitution and minors[edit]

Child prostitution is illegal, but there are community concerns that it is a growing problem related to homelessness. While expansive claims have been made as to its extent, expert reports conclude that such estimates cannot be relied on. For instance, a 2002 report of the Justice Institute of British Columbia states that "Because of the illicit nature of commercial sexual exploitation, there is no way to accurately measure the number of children and youth being commercially sexually exploited. Estimates of the number of commercially sexually exploited children and youth in BC vary greatly."[62]

Federal initiatives[edit]

The Criminal Code was amended in 1988 to include child sexual abuse, and linking juvenile prostitution to the “procuring” section. In 1995 the Federal-Provincial-Territorial Working Group on Prostitution stated that these provisions “have been ineffective in bringing customers and pimps of youths involved in prostitution to justice.” They reported that charges under these provisions were rare, and that juvenile prostitutes and their clients, continued to be charged under the general summary conviction offence prohibiting street prostitution, as with adults. Enforcement problems resulted from the reluctance of youths to testify against pimps, and the difficulty of apprehending clients.

Bill C-27[edit]

The 1996 amendments addressed the Working Group report. Bill C-27 included a new indictable offence of “aggravated” procuring. This applied to pimps who coerce juveniles into prostitution through violence or intimidation, with a mandatory minimum sentence of five years in jail, and a maximum of 14 years. Bill C-27 extended some procedural safeguards to juvenile witnesses appearing in court, entitling them to testify outside the courtroom behind a screen (or on video). Publication bans could protect the identity of complainants or witnesses under the age of 18. The addition of an offence for obtaining or attempting to obtain the sexual services of a person whom the offender believed to be under 18 was intended to make enforcement of s. 212(4) easier. s. 212(5) then added that evidence that a person was represented to the accused as being under 18 was proof of that belief, in the absence of evidence to the contrary. It was intended that undercover agents rather than minors themselves would be used to detect such offences. C-27 was given Assent in April 1997.

The provinces then expressed concerns that convictions would be difficult to obtain because the Crown had to prove the belief of the accused as to the age of the young person, while the working group were unsure about the constitutionality.

Bill C-51[edit]

In June 1998, C-51 was introduced, changing “attempts to obtain” to “communicates with any person for the purpose of obtaining” to simplify prosecution by removing any need to prove belief of age. Electronic surveillance was also explicitly allowed, and this was assented in March 1999.[4]

Provincial and municipal initiatives[edit]

In June 1999, provincial and territorial leaders declared child prostitution abuse rather than a crime and agreed to harmonise child welfare legislation. Several provinces and municipalities appointed task forces to implement the child as victim concept. Alberta led the way in this, followed by British Columbia, Saskatchewan, Manitoba, Nova Scotia and Ontario (June 2002).[4]

British Columbia[edit]

Media reports claim that Vancouver has about 500 street prostitutes under the age of 17, while some have claimed that many more children may be involved in indoor prostitution.[63] However such numbers should be treated with extreme caution (see above). Approximately 50% to 80% of the child sex trade in British Columbia is carried on in massage parlours, karaoke bars, and “trick pads”; only 20% to 50% of the trade is visible above ground with children being openly solicited on the streets. In smaller BC communities, the sexual exploitation of children is even less visible. It occurs in private homes, back alleys, and parks, at public docks and truck stops, and on fishing boats.[64][65] Some adolescents in care had advertised sex for sale on Craigslist when the erotic services category was still available. Craigslist removed this category on December 18, 2010.[66]

Aboriginal children[edit]

In certain areas of BC, aboriginal youth, who constitute 3–5% of the general population, account for the majority of children working in the sex trade. Estimates of the number of aboriginal sexually exploited youth in BC range from 14% to 60%, a problem blamed on the residential schools.[65]

Alberta[edit]

Alberta's Child Welfare Act (1997) added the purchase of sex from someone under 18 as child abuse, with fines up to $2,000 and/or six months in jail in addition to Criminal Code penalties.

The Protection of Children Involved in Prostitution Act (February 1999) provided that a child wanting to exit prostitution may access community support programs, but if not could be apprehended by police. They could then be confined for up to 72 hours in a protective safe house, where they can receive emergency care, treatment, assessment and planning. Customers and pimps can be charged with child sexual abuse and fined up to $25,000, 2 years jail or both.

However in July 2000, the law was ruled unconstitutional. The Provincial Court determined that it did not respect a child’s legal rights because it lacked the “procedural safeguards” to allow youth the right to answer allegations or seek judicial appeal. But in December the Court of Queen’s Bench quashed this. Nevertheless the government had already introduced amendments ensuring that when a child is confined they be informed in writing as to why they were being confined, its duration, court dates and the right to legal representation. The child is also given an opportunity to contact Legal Aid and that they may request court review of the confinement.

Amendments were also made to enable children to receive additional care and support, including extending the confinement period for up to five days and allowing for authorities to apply for a maximum of two additional confinement periods of up to 21 days each.[4]

Manitoba[edit]

In Winnipeg, evidence was given at a 2008 inquest that hundreds of children, some as young as eight years old, are selling sex to adult men for money, drugs and even food and shelter. It is estimated that 70% of the prostituted girls are Aboriginal, more than 70% are wards of Child and Family Services, and more than 80% get involved after running away from their placements.[67]

the rates charged in Winnipeg fluctuate widely, from 2 cigarettes to 2 packs of cigarettes.

Ontario[edit]

Ontario's child welfare legislation goes further than Alberta by allowing the province to sue pimps and others who sexually exploit children for profit, in order to recover the costs of treatment and services required by their victims.[4] In Toronto, it has been estimated there may be as many as 1,500 minors involved in prostitution.[68]

Extent[edit]

The numbers involved are disputed.[64] [65][69] According to Police statistics only 5% of those charged with prostitution activities are youth, and of those over 80% are young women, though others claim higher figures.[40]

It has been claimed that there are about 10,000 child prostitutes across Canada.[68] A 2006 ECPAT report states that while according to Statistics Canada, between 10 and 15 per cent of people involved in street prostitution are under 18, this figure is viewed by most child advocates as a gross underestimate.[70] On the other hand doubt has been raised by UNICEF regarding ECPAT's methods.[71]

Locale[edit]

Most child-prostitutes do not work on the streets, but behind closed doors: "You can't have children standing on the corner because they will be spotted immediately. So what pimps and recruiters do is keep them off-street," said Raven Bowen, from Vancouver.[63]

Recruitment[edit]

A 2002 British Columbia Government report[65] stated that some children end up in prostitution after running away from home, where they were victims of physical and/or sexual abuse. The report cited as causes of commercial sexual exploitation of children factors such as social isolation; low self-esteem; a dysfunctional family where violence and substance misuse were common; neglect; early sexual abuse or other traumatizing experience; dropping out of school; hidden disabilities, including Fetal Alcohol Syndrome—factors which pushed children into prostitution. Many children had a history of provincial care in a foster or group home, or living on their own, but some youth from well-functioning families had left home after a traumatic event becoming at risk of sexual exploitation once on the street. Some children came from families where prostitution was practiced by other members, or from communities where prostitution was common.

They found that some children were preyed on by pimps who may slowly gain their trust, befriend them and provide them with food, accommodation and clothes before hooking them on drugs and alcohol and forcing them into sexual service. However only a small proportion were found to be controlled in this manner, and older girls frequently introduced younger ones into the trade. Some pimps were considered as boyfriends, the report found. Pimps may use romantic techniques to seduce young girls. Where pimps appeared to be involved in recruitment they worked in areas where young people congregate such as food courts in malls, community centres and schools, preferring unsupervised venues including fast food restaurants and bus stops but also supervised locations including drop-in programs, group homes, juvenile detention centres, youth shelters and treatment centres.[64] Runaway children are easily spotted by pimps at the bus and train stations of major Canadian cities.

Sex tourism[edit]

In the early 1990s, pressure was building for action on the sexual exploitation of foreign children by Canadian tourists travelling abroad, even though the extent was unknown, leading to the introduction of a number of private member's bills.

C-27 (1996) amended s. 7 of the Criminal Code to address this. s. 7(4.1) extended its extraterritorial provisions to 11 sexual and sex-related offences against minors (but does not specify purchase of sex), and applies Canadian law to foreign jurisdictions.

Following enactment of C-27 in 1997, the Department of Justice was involved in the development of the United Nations’ Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, and Canada became a signatory in November 2001 (in force as of January 2002). At the same time C-15 simplified such prosecutions which had previously distinguished between prostitution and other forms of sexual abuse.[4]

In 2009, Joy Smith introduced Bill C-268, An Act to amend the Criminal Code (minimum sentence for offences involving trafficking of persons under the age of eighteen years). This Bill amended Section 279.01 of Canada’s Criminal Code to create a new offence for child trafficking with a five-year mandatory penalty. Bill C-268 has received broad support from stakeholders concerned with human trafficking including law enforcement, victims’ services, First Nations representatives, and religious and secular non-governmental organizations. MP Joy Smith worked with her colleagues across party lines to gain support for the legislation. On September 30, 2009, Bill C-268 received near unanimous support from Conservative, Liberal and NDP parties and was passed by the House of Commons, although opposed by the Bloc Québécois. On June 29, 2010, Bill C-268 was granted Royal Assent and became law. The successful passage of a Private Members Bill is rare and it is only the 15th time in the history of the Canada that a Private Members Bill amended the Criminal Code.

Policy issues[edit]

Wendy Babcock, a Canadian activist for the rights of sex workers

Policy development around sex work in Canada is complex, divided across areas of jurisdictions and agencies. Issues that policy making bodies need to deal with include which jurisdiction should exercise powers, and which powers. There is debate on how far a government can go in terms of intruding into private lives, and even whether prostitution is actually a problem or merely part of larger problems.[4]

While the outdoor scene is the most visible and the one most likely to lead to complaints, there is an opinion that actions against them merely move the problem around rather than solve it, and that what harms there are in prostitution derive from public attitudes and inconsistent laws. The legal status has been described as "quasi-legal"[4]

Debate comes from feminists, civil libertarians, politicians and law and order officials. The debates range over morality, constitutional rights and freedoms, and the fact that it is one of the few areas of consensual sexual activity that is still subject to legal control.[4]

Politics[edit]

Various government committees and task forces have made many recommendations, very few of which have been implemented. The most recent was the 2006 report of the parliamentary subcommittee on solicitation which split on ideological party lines, with recommendations for decriminalisation from the majority opposition parties, and for eradication by the minority government members.

The current majority Conservative government supports the prohibition of prostitution. Responding to the 2006 report Prime Minister Stephen Harper stated "In terms of legalization of prostitution I can just tell you that obviously that's something that this government doesn't favour".[72] Justice Minister Rob Nicholson also stated: "We are not in the business of legalizing brothels, and we have no intention of changing any of the laws relating to prostitution in this country.”

Such a move would likely be met with opposition from some feminists and women's organizations who are opposed to prostitution, which they consider to be a form of exploitation of women and of male dominance (see Feminist views on prostitution). They point out that in Sweden, Norway[73] and Iceland[74] it is illegal to pay for sex (the client commits a crime, but not the prostitute) and argue that countries with a high commitment to gender equality don't tolerate prostitution. On the other hand other feminists and women's groups see the laws prohibiting sex work as oppressive of the labour of women and argue for their repeal as a basic human rights issue.[15][75]

In October 2011 Conservative MP Joy Smith stated she was preparing legislation that would prohibit the purchase of sex.[76] In response, Vancouver lawyer, Katrina Pacey of PIVOT has outlined the legal arguments against such an approach.[77]

In September 2012, following the decision by the Supreme Court of Canada to allow sex workers in British Columbia to proceed with a constitutional challenge to the laws, the Justice Minister repeated the government's opposition to any change in the status quo.[78]

Public opinion[edit]

Most public opinion polls, which were first introduced in 1984, demonstrate a lack of understanding of the law, which could influence responses. The polls have also been frequently cited misleadingly.[79]

A 2006 opinion poll showed that 68% of Canadians consider prostitution to be "immoral" (76% of women and 59% of men).[80] By 2009 an online survey of a representative national sample of 1,003 Canadian adults conducted by Angus Reid Public Opinion showed that prostitution was considered "morally acceptable" by 42% of Canadians, but there were differences by age and gender. Young people were the most critical of prostitution: only 36% of those aged 18–34 considered prostitution "morally acceptable", compared to 45% of those aged 35–54, and 44% of those older than 55. 29% of women saw prostitution as acceptable, compared to 56% of men. 60% of respondents supported allowing indoor work. Only 16% supported the status quo, 25% supported prohibition, while 50% supported decriminalisation. [81]

In 2012, 21% of respondents to an Ipsos Reid poll (1,004 adults between March 30 and April 1) strongly agreed and 44% somewhat agreed that prostitution in brothels should be legal, while 20% strongly disagreed and 15% somewhat disagreed (65 for, 35 against). 75 per cent of men and 56 per cent of women agreed. All age groups and all regions agreed, although there was regional variation[82][83]

Following introduction of amending legislation in June 2014, an Angus Reid poll (1,007 adults between June 6 and 7) showed that 45% thought buying sex should be legal, 45% that it should be illegal, and 11% were undecided. 51% believed selling sex should be legal. [84]

Human trafficking and crime[edit]

A human trafficking awareness poster from the Canadian Department of Justice.

As in other countries, debates around human trafficking for the purpose of sexual exploitation often dominate the larger debate on prostitution. These debates tend to be highly emotive and controversial, examples of which occurred following the Supreme Court's 2013 decision regarding the unconstitutional nature of Canada's prostitution laws. A psychotherapist stated: "I find it disturbing, disappointing, because it removes the only restraint on the men who are trolling for women,” he said. “It’s already an exceedingly dangerous work environment for the women. I now know that the police won’t be patrolling or doing sting operations, so it’s basically open season.", while Karen Mykietka, president of the Alberta Avenue Community League, said to the media:

Anyone working in that industry is going to know that it’s a free-for-all and nobody is going to be enforcing anything. I’m expecting we’re probably going to see an increase in (prostitution) especially over the summer months, and that’s not what the community likes to see on their streets.[85]

Operation Northern Spotlight[edit]

Shortly following the decision of the Supreme Court, the police of 30 centres across Canada, including Halifax Regional Municipality, Saint John and Edmonton, commenced a two-day investigation into human trafficking and sexual exploitation named Operation Northern Spotlight. The operation, led by the Integrated Vice Unit in Halifax, occurred on January 22 and 23, 2014 and focused on the hotel and motel establishments located on major arteries, as well as sex work venues.[86][87] According to the Global Network of Sex Work Projects (NSWP), 180 police personnel interviewed 333 women, and identified 25 suspected human traffickers.[88]

According to press reports, one arrest and two suspected human traffickers were identified in Ontario, police in York arrested and laid charges against a male individual and the names of two alleged human traffickers from Windsor were revealed as a result of the two-day blitz.[89] The NSWP reported that police in the Peel and Durham regions of Ontario interviewed 53 women between 16 and 45 years old, and reported: "Many of the women appear to be making their own decisions to participate for financial gain. Part or all of the proceeds from the sexual encounters were kept by their adult male controller or pimp." In the two regions, nine men were arrested and face 83 charges related to human trafficking, firearm offences, drug possession and child pornography. In Edmonton, police vice unit Detective Steven Horchuk stated that police will continue to focus on the clients of prostitution, in particular cases involving exploitive circumstances, but would no longer press charges related to communicating for the purpose of prostitution due to the Supreme Court's decision.[85]

Social movements[edit]

At the same time a number of movements arose either advocating the eradication of sex work as exploitation, or for better protection of workers and decriminalisation based on human rights. A 1983 committee recommended both stronger sanctions to deal with the visible spectrum of sex work, but also wider reforms. In 1983 the law was made technically gender neutral and provisions for prosecuting communication were widened in 1985, while special provisions for minors were enacted in 1988. None of this abated debate and currently the laws are under challenge in two cases based on the Charter of Rights and Freedoms.[40]

Several national women's groups, such as the Canadian Association of Sexual Assault Centers[90] and the Native Women's Association of Canada,[91] several provincial groups, including le Centre d'aide et de lutte contre les aggressions a charactere sexuelles[92] and L'action ontarienne contre la violence faite aux femmes,[93] local groups, including La Cles,[94] Vancouver Rape Relief and Women's Shelter,[95] Exploited Voices Educating,[96] University Women's Club,[97] The Aboriginal Women's Action Network[98] The Asian Women's Coalition Ending Prostitution, are advocating an abolitionist approach to policy. The Servants Anonymous Society is a nonprofit women's organization[99] that provides aid to young women in exiting the sex industry.[100]

See also[edit]

References[edit]

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Bibliography[edit]