Canada inherited its criminal laws from England. The first recorded laws dealing with prostitution were in Nova Scotia in 1759, although as early as August 19, 1675 the Sovereign Council of New France convicted Catherine Guichelin, one of the King's Daughters, with leading a "life scandalous and dishonest to the public", declared her a prostitute and banished her from the walls of Quebec City under threat of the whip. 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.
Until the Second World War Canada originally inherited many of its criminal laws from England. The first legislation dealing with prostitution in Canada was a Nova Scotia Act of 1759 which allowed imprisonment for "lewd behaviour". Most prostitution in the early days of Canadian history took place in brothels which were in every city. Action by the authorities occurred only in the context of other criminal or socially undesirable activity taking place in or in the vicinity of these brothels such as creating a public nuisance. As in many other countries, what control there was of prostitution existed under vagrancy laws designed to keep public places free of "undesirables". Owners or operators of brothels (bawdy houses) could also be prosecuted as vagrants. These were based on the British Vagrancy Act 1824.
Once the federal government came into being following Confederation in 1867, it became possible to develop common criminal laws for all of Canada. Women under 21 were protected from 'defilement' from that date, while in 1869, vagrancy provisions were consolidated and extended to include males 'living on the avails' of prostitution. The penalties were increased in 1874, and bawdy houses regulated from 1886.
By a lack of suitable alternatives, women were annexed into the sex industry. Only from about 1890 was there concern about the actual existence of prostitution, with religious groups, early feminists and women's groups such as Woman's Christian Temperance Union (WCTU) and the National Council of Women of Canada campaigning for social purity and against prostitution, which was condemned as a 'social evil', and 'white slave trade', a popular concern of the time. This produced an enthusiasm for rescuing 'fallen women'. However, with increasing action against brothels, more and more people working in prostitution carried out their business on the streets.
The federal Parliament enacted the first Criminal Code in 1892. Existing provisions were included and refined in the new Code, including making it an offence to procure women 'for unlawful carnal connection'. The laws continued to be amended in various ways over the years. From 1892 to 1972, this created an offence under 175(1)(c) for
a vagrant who: being a common prostitute or nightwalker is found in a public place and does not, when required, give a good account of herself.
Up to the 1880s prostitution was largely tolerated in the Prairie provinces. Before 1909 there were few arrests and even fewer fines for prostitution, in part because those caught were encouraged to leave town rather than be jailed. As the population became more settled, however, public opinion regarding this resource for itinerant men turned hostile. For example, a smallpox epidemic in the red light districts of Calgary ignited a crackdown as demanded by middle-class women reformers. Local chapters of the Woman's Christian Temperance Union vigorously opposed both saloons and prostitution, and called for woman suffrage as a tool to end those evils.Judy Bedford, "Prostitution In Calgary 1905-1914". Alberta History 1981 29(2): 1-11; Nancy M. Sheehan, "The WCTU on the Prairies, 1886-1930: An Alberta-Saskatchewan Comparison." Prairie Forum (1981) 6#1 pp 17-33.
Postwar The social purity movement became much less prominent after World War I but had little effect on the extent of prostitution, but there was now less public concern. Throughout enforcement was heavily gendered, with only a few men prosecuted under the avails and procurement laws. In 1947, it became an offence to transport a woman to a bawdy house.
Vagrancy The original 1892 Criminal Code described 12 ways in which a "loose, idle or disorderly person or vagrant" might be arrested and upon conviction subjected to a maximum fine of $50 or imprisonment not exceeding six months with or without hard labour. This was directed at the person as "vagrant" (status law). In 1954, amendments made vagrancy the doing of a prohibited act, and these were reduced to five. Three of them dealt with street disorder and were nicknamed Vag A, B and C after the respective clauses, and thus the prostitution prohibition as Vag C or vagrancy (c).
The original vagrancy laws were discriminatory in that they were applied overwhelmingly to women and criminalised the status of "being a common prostitute" rather than criminalising the behaviours associated with prostitution. For these reasons, the original status offences for prostitution could be said to contravene the current Charter of Rights and Freedoms.
Both the judiciary and the 1970 Report of the Royal Commission on the Status of Women complained about this.
In 1972 section 164.1:
No Apparent Means of Support Every one commits vagrancy who: (a) -not having any apparent means of support is found wandering abroad or trespassing and does not, when required, justify his presence in the place where he is found; (b) -begs from door to door or in a public place; (c) -being a common prostitute or night walker is found in a public place and does not, when required, give a good account of herself
was replaced by language prohibiting soliciting (communicating) for the purposes of prostitution (section 195.1), which read: every person who solicits any person in a public place for the purpose of prostitution is guilty of an offence punishable on summary conviction.
The new law was now gender neutral and defined an offence based on an act (although not the nature of the act) and was thought to have addressed the social nuisance concerns of residents. However it soon became clear that there were now new problems.
In Hutt v. R. (1978) [SCC 82 D.L.R. (3d) 95] it was held that for the activities of a prostitute to be criminal their conduct must conform to the dictionary definition of "solicit"; it must be importuning, or "pressing or persistent" and constitute more than a mere indication that she was willing to prostitute herself. A plainclothes police officer permitted the appellant to enter his car. She then identified herself as a prostitute and discussed terms. The Court did not believe that this fell within the intent of parliament to prohibit acts "which would contribute to public inconvenience." Four judges indicated that they would not have considered an automobile a "public place," also excluding the actions from section 195.1. Following this there was concern that the police could no longer act against street prostitution unless there was "pressing or persistent" behaviour.
Municipal initiatives Residents started to campaign against sex work as a public nuisance, primarily to have it shifted out of their neighbourhoods. The 1978 Hutt decision led to public pressure to amend section 195.1 to expand the definition of soliciting. Street prostitution was described as a " plague" and there was pressure to deal with activity that was claimed to blight residential and commercial areas, and to be associated with criminal activity, including drugs and exploitation of children.
The federal government was seen to not be proactive on this prompting some cities to take action. Montreal (1980) and Calgary (1981) enacted bylaws that banned the use of streets and other public areas for prostitution. These cities claimed powers, derived from the provinces, to regulate the streets and restrict criminality. Although police and city officials claimed the bylaws to be effective, they were found to be unconstitutional. In Westendorp v R (1983) the Supreme Court found the Calgary by‑law was ultra vires. Similarly for Montreal (Goldwax et al. v. City of Montreal, 2 S.C.R. 525). These rulings therefore nullified other similar bylaws enacted or proposed in Vancouver, Niagara Falls, Regina and Halifax. However, a 1983 Montreal by‑law forbidding the selling of any services on city streets without a permit was upheld in Quebec Superior Court.
Agitation for change continued at the municipal level as being most directly affected by the presence of prostitution. Ottawa and Edmonton created task forces in 1992 while Halifax, Montreal and Toronto police addressed juvenile prostitution and, in particular, exiting schemes.
Ottawa Ottawa made 33 recommendations. Many of these focused on enforcement, while others addressed crime prevention, education and crisis intervention programs. Others supported the 1990 C49 report for a re-examination of the Fraser Report. Specifically, these addressed funding for research and more control of harassment or obstruction. The Ottawa report also asked the Minister to work with municipalities to establish a National Crime Prevention Council. In response, the City took action to deter automobile traffic in certain areas.
Edmonton Edmonton focused on the juvenile issue, proposing amendments to child welfare legislation and the Criminal Code. It also proposed bylaws to regulate dating and escort services, exotic entertainers and massage parlours, including licensing, which were subsequently enacted.
Toronto In response to the 1995 Federal-Provincial-Territorial Working Group on Prostitution report "Dealing with Prostitution in Canada," Toronto's Board of Health advocated decriminalisation in 1995, with the City taking the responsibility of regulating the industry. The City then endorsed these proposals, further specifying that it involved only adult prostitution, supporting the federal report's proposals on juveniles.
Toronto also enacted a bylaw to restrict intimate erotic lap dancing in August 1995 to prohibit physical contact, including touching, between patrons and attendants, with a maximum fine of $50,000, and revocation of licences. Adult entertainment parlours were unsuccessful in having this quashed by the courts. In Ont. Adult Entertainment Bar Assn. v. Toronto, 26 O.R. (3d) 257 , it was held that the bylaw was enacted for valid objectives relating to business regulation, including health, safety and the prevention of crime, and did not usurp the Government's jurisdiction over criminal law. The court did not believe that the bylaw violated dancers' freedom of expression. Close-contact dancing was not a constitutionally protected right. This was upheld at the appellate level.
Other Other cities saw Edmonton and Toronto as examples of allowing municipal intervention without being ultra vires and the 1990s saw Victoria, Vancouver, Calgary, Winnipeg, Sault Ste. Marie and Windsor following suit. Civil suits, however, were undertaken on the basis of over-charging licence fees In 2002, an Edmonton prostitute commenced an action against the City, demanding it lower the license fee for escorts from $1,600. The action claimed that the City of Edmonton was "living off the avails of prostitution" by imposing such a high licence fee.
Provincial initiatives