Current laws passed by the Parliament of Canada in 2014 make it illegal to purchase or advertise sexual services and illegal to live on the material benefits from sex work. The law officially enacted criminal penalties for "Purchasing sexual services and communicating in any place for that purpose."
This marks the first time in Canadian history that the exchange of sexual services for money has been made illegal. The Canadian Department of Justice claims that the new legal framework "reflects a significant paradigm shift away from the treatment of prostitution as 'nuisance', as found by the Supreme Court of Canada in Bedford, toward treatment of prostitution as a form of sexual exploitation". Many sex workers' rights organizations, however, argue that the new law entrenches and maintains harm against sex workers since sex workers are still committing a crime, albeit there is an immunity from arrest for material benefits and advertising.
The new laws came in response to the Canada (AG) v Bedford ruling of the Supreme Court of Canada, which found the laws prohibiting brothels to be unconstitutional, public communication for the purpose of prostitution and living on the profits of prostitution. The ruling gave Parliament of Canada 12 months to rewrite the prostitution laws with a stay of effect so that the current laws remain in force. Amending legislation came into effect on December 6, 2014, which made the purchase of sexual services illegal.
Background There has long been a general agreement that the status quo of prostitution in Canada was problematic, but there has been little consensus on what should be done. There is an ideological disagreement between those who want to see prostitution eliminated, generally because they view it either as an exploitative or unacceptable part of society, and those advocating decriminalization because they view sex workers as having agency and prostitution as a transaction. Advocates of decriminalization believe that prohibition encourages the exploitation of sex workers by denying them legal and regulatory protections. The Conservative government ensured that Canada's current prostitution law was committed to a prohibitionist position.
While the act of exchanging sex for money has been legal for most of Canada's history, the prohibition of the activities surrounding the sex trade has made it difficult to practise prostitution without breaking any law. This is the first time that the exchange of sexual services for money is made illegal.
The term "sex work" is used interchangeably with "prostitution" in this article, in accordance with the World Health Organization (WHO 2001; WHO 2005) and the United Nations (UN 2006; UNAIDS 2002).
History
Canada inherited laws from the United Kingdom. The first recorded laws dealing with prostitution were in Nova Scotia in 1759. Following Canadian Confederation in 1867, the laws were consolidated in the Criminal Code in 1892. 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 inclusion of the Charter of Rights and Freedoms in the Canadian constitution, the constitutionality of Canada's prostitution laws have been challenged on a number of occasions, culminating with the Supreme Court striking down several provisions of the law in Canada (AG) v Bedford in 2013, leading to a new legislative approach introduced in 2014.
Before the provisions were struck down, the Criminal Code made the following unlawful:
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.'To remedy the constitutional problem posed by s. 210, we strike the word "prostitution" from the definition of "common bawdy-house" in s. 197(1) as it applies to s. 210 at 326', subject to stay of effect for 12 months. 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 exploitationModified to read "Everyone who lives wholly or in part on the avails of prostitution of another person in circumstances of exploitation is guilty of an indictable offence". Emphasis read in at 267. paying for sex with anyone under the age of 18 (Section 212) 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
At the turn of the twentieth century, pickpockets and pimps converged on Canadian train platforms. As an historian reported, "Young girls fleeing the dead-end monotony of rural Canada were particularly easy prey for the bordello runners. These confused newcomers were susceptible to a smiling face and soothing words that led only to a cruel life of sexual slavery."["The Train Doesn't Stop Here Anymore: An Illustrated History of Railway Stations in Canada" - Fourth Edition], by Ron Brown, Dundurn Publishing, 2014
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. An appeal was lodged with the Supreme Court of Canada on April 25, 2012, 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.
Legal status
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, and communicating such services (soliciting) in a public place. This made it difficult to engage in prostitution without breaking any law. Automobiles are considered public spaces 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,The staggering incoherence of Canada's prostitution laws, Vancouver Sun, June 14, 2010. leading one judge to refer to the laws as 'Alice-in-Wonderland',R. v. Hrabchak M.J. No. 554. Devine J, at 7. and the Chief Justice of the Supreme Court to call the situation "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
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 emphasized 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
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.
On October 25, 2012, the Supreme Court of Canada granted leave to appeal and cross-appeal the Ontario Court of Appeal Bedford decision.Attorney General of Canada et al. v. Terri Jean Bedford et al., 2012 CanLII 64742 (SCC), retrieved on October 31, 2012. 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.
In a decision dated December 20, 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, Valerie 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."
In response, Peter MacKay, the Minister of Justice, introduced amending legislation, C-36, the "Protection of Communities and Exploited Persons Act" on June 4, 2014, which received first reading. It came into effect on December 6, 2014. The act is criticized by sex workers who believe that it is worse for their safety than the previous law because it forces the sex industry further underground.
Nordic model approach to prostitution Bill C-36, the Protection of Communities and Exploited Persons Act, introduced by Conservative Party leader Stephen Harper, received Royal Assent on November 6, 2014. The legislation was opposed by all opposition parties, including the Liberals, who declared that the legislation was unconstitutional and did not follow the guidelines set out in Bedford v. Canada. Justin Trudeau promised to further reform Bill C-36 during his 2015 federal election campaign. As of 2021, there has been no reformation of the legislation.
The legislation treats sex work as a form of exploitation and sexual inequality (the Criminal Code only addresses women and girls in this legislation). Between 2009 and 2014, women accounted for 43% of prostitution related offences, but when the legislation was enacted in 2014, only 9% of those accused of prostitution offences were female while there was an increase to 81% for male prostitution offences. Unfortunately, given the language of the legislation, it is unclear if transgender sex workers are addressed under the law. There has been very limited research on transgender people in the sex-trade industry. Bill C-36 claims to protect the dignity and equality of all Canadians by prohibiting the purchasing of sexual services. Bill C-36 was heavily influenced by the Nordic model approach to prostitution.