Legal Context

In this section, we’ve included an overview of Canadian prostitution laws, as well as summaries of the Ontario and British Columbia cases currently challenging these laws.  We’ve also included information about different countries’ approaches to regulating sex work. 

CANADIAN PROSTITUTION LAWS

FEDERAL LAWS

It is the Canadian criminal code that primarily regulates prostitution; provinces are limited in their jurisdiction over prostitution:

The federal laws pertaining to prostitution (sections 210-213 of Criminal Code) address keeping or using a bawdy-house (as well as transporting a person to a bawdy-house), procuring, living off the avails of a prostitute, and public solicitation.

*Note that a bawdy house can be anything from a hotel to a parking lot. It can be any space regularly used for the purposes of prostitution, can even be an apartment used by one person.

PROVINCIAL LAWS

“Complementing Parliament’s direct jurisdiction over the criminal law on prostitution, section 92 of the Constitution Act provides the provinces with control over the administration of the criminal law. Courts also sometimes recognize a legitimate overlap between federal and provincial criminal jurisdiction, thus validating provincial legislation that deals with criminal issues in particular situations. Essentially, legislation that merely regulates morality and criminal conduct is considered to be under provincial jurisdiction, but legislation that creates an actual prohibition akin to criminal law falls under federal jurisdiction. The harsher the penalty, the more such provincial legislation is considered to trespass on federal jurisdiction” (Barnett & Nicol, 2012).

Here are some ways that provinces have tried to regulate prostitution within their jurisdiction:

    • Injunctions against public nuisances is one way provinces have tried to regulate prostitution, but this is only a temporary solution.
    • In Alberta, Manitoba and Saskatchewan, there is legislation for police to seize vehicles involved in prostitution-related offences.
    • In Saskatchewan, the Traffic Safety Act allows for penalties to be given to those who repeatedly drive through or park in areas frequented by prostitutes.
    • In Alberta, Manitoba, Yukon, Nova Scotia, Saskatchewan and New Brunswick, the Safer Communities and Neighborhoods Act (SCAN) allows for closure of buildings in response to prostitution concerns.
    • In BC, Alberta, Saskatchewan, PEI and Yukon, child protection legislation that allows for the placement of a child in the welfare system who is at risk of prostitution
    • In BC and Alberta, legislation allows for the issuing of a restraining order against a person coercing or likely to coerce a youth from the child welfare system into prostitution.
    • In Saskatchewan, there is “emergency intervention” legislation to keep an offender suspected of child abuse or prostitution-related offences away from child.
    • In Alberta, there is legislation allowing for involuntary detention of child involved in prostitution and penalties for pimps and clients.

MUNICIPAL LAWS

“Also operating within this provincial framework, municipalities have independent power to control prostitution through municipal by-laws and other local measures. Because municipalities receive their authority from the provincial legislature, the same restrictions that apply to provincial powers to regulate prostitution in terms of overlap with federal criminal jurisdiction also apply at the local level. Accordingly, municipalities cannot create outright prohibitions of prostitution that would be akin to criminal legislation.  Local police are in fact more likely to use municipal by-laws to regulate prostitution than to lay charges under the Criminal Code, given that it is easier to issue tickets for an infraction of a by-law than to collect evidence for a criminal charge. By-laws can also be more easily moulded to fit a local context”  (Barnett & Nicol, 2012).

In the early 1980s, many Canadian cities had by-laws that forbade the use of public areas for the purpose of prostitution, but these laws were eventually struck down by the Supreme Court of Canada for infringing on federal jurisdiction.

Here are some ways municipalities have tried to regulate prostitution:

    • Municipalities often use anti-jaywalking and loitering laws to ticket areas frequented by prostitutes. Many municipalities also have “by-laws that require dating and escort services, exotic entertainers, massage parlours, and others to obtain business licenses like other business establishments” (Barnett & Nicol, 2012). Zoning by-laws are used to restrict location of adult entertainment business.
    • In 1983, Montreal passed a by-law forbidding the selling of any services on city streets without a permit, which essentially outlawed street prostitution. This by-law was upheld by the Quebec Superior Court, but later overruled by the Supreme Court of Canada.
    • In Winnipeg and Vancouver, there are by-laws against “obstructive solicitation”, which forbids the impediment of pedestrian traffic or the harassment of pedestrians with solicitation. These regulations were primarily created for panhandlers but are used against sex workers.
    • In Surrey, police can give tickets to anyone engaging in prostitution within 300 meters of a school or 20 meters of a residence.

CURRENT CHALLENGES TO PROSTITUTION LAWS

In Ontario, a case was launched in 2007 challenging federal prostitution laws (keeping a bawdy house, living on the avails of prostitution, communicating for the purposes of prostitution), arguing that they violate the Charter of Rights and Freedoms, “depriving sex workers of their right to liberty and security in a manner that is not in accordance the principles of fundamental justice” (challenge as cited by Black, 2007)

In September 2010, the Ontario Superior Court struck down all three prostitution laws. This was appealed by the federal and Ontario governments.

In March 2012, the Ontario Court of Appeal struck down law banning brothels (does not take effect for 12 months so parliament can draft new law),modified the law prohibiting living off the avails of prostitution to only apply to circumstances of exploitation, and upheld the law that bans public communication for the purpose of prostitution (change comes in effect in 30 days, 3 out of 5 judges agreed to uphold this law).

In April 2012, the federal government announced that it will appeal the Ontario Court of Appeal decision to the Supreme Court of Canada.

In December 2013, the Supreme Court of Canada struck down all three prostitution laws.

In British Columbia, a similar case was launched in 2007 by Sex Workers United Against Violence (a group of current and former sex workers from the Downtown Eastside of Toronto) challenging federal prostitution laws, also arguing that they violate the Charter of Rights and Freedoms.

In 2008, the BC Supreme Court ruled that SWUAV did not have legal standing to challenge the prostitution laws because there were no charges laid against them. SWUAV appealed this decision to the BC Court of Appeal.

In 2010, the BC Court of Appeal ruled that group could challenge prostitution laws.

In 2012, the federal government appealed BC Court of Appeal position to Supreme Court of Canada. On September 21st 2012, the Supreme Court of Canada ruled that the sex workers do have legal standing to proceed with their case and to challenge prostitution laws. The case will now return to the BC Supreme Court.

KEY FACTS AND PLAYERS IN ONTARIO CHALLENGE:

The case challenged the following 2 laws:

1. Criminal law against keeping a common brothel- ruled that it violated Charter of Rights and Freedoms, to be legal in Ontario

Stakes: argument that sex work is safer indoors (ideally a chosen, safe environment) and safer with prostitutes working in groups, sex workers less vulnerable to violence/ some argue that brothels are run by people who are exploiting sex workers or forcing them to work

2. Criminal law against living off the avails of prostitution- ruled that this violated Charter of Rights and Freedoms, legal in Ontario (except when it is exploitative)

Stakes: sex workers can now hire bodyguards and drivers for protection/this will allow sex workers and their employees to go about their business openly in any neighborhood- and could bring crime, drugs and other problems with them

3. Criminal law against communicating in public for the purposes of prostitution, initially ruled that this violated Charter of Rights and Freedoms but overturned by Ontario Court of Appeal, still illegal in Ontario

Stakes: sex workers can assess a potential client properly as they don’t want to be arrested for this, forced to jump into a car without enough knowledge/ this law helps keep prostitution away from residential neighborhoods

Other arguments:

Prostitution is itself legal, but laws surrounding it made it illegal. By forcing prostitutes into illegal acts, it leads them to be “unreasonably exposed to crime and associated dangers”.

Some argue that prostitution is inherently exploitative and is never a choice, and that changing these laws will only perpetuate prostitution, while the government should be working towards eradicating it.

While the Crown argued that prostitutes choose to go into a dangerous profession, judges ruled that they deserved to be protected just like any other citizen.

Some argue prostitutes more likely to go to police with any issues they have- be it a commercial transaction, violence, etc…

The players involved included:

Justice Susan Himel, made initial judgment in 2010- struck down three anti-prostitution provisions in Criminal Code- which was then appealed

Challenge initiated by: Terri-Jean Bedord (dominatrix), Amy Lebovitch (prostitute),Valerie Scott (former sex worker, from Sex Professionals of Canada)
Represented by Lawyer Alan Young (Professor at York University)

Justice Minister/prosecutor Rob Nicholson**  many other lawyers also involved in the case
Michael Morris, lawyer for Attorney-General of Canada
John Gerretson, Ontario Attorney-General

19 groups offered different opinions on the Ontario court case, including Women’s Coalition for Abolition of Prostitution (represents 7 Canadian agencies), Maggie’s (run by sex workers to offer support and advocacy), POWER (Ottawa support group for prostitutes), Concertation des luttes contre l’exploitation sexuelles (CLES), Downtown Eastside Sex Workers United Against Violence Society, Catholic Civil Rights League, PACE Society (Providing Alternatives Counselling & Education, for sex workers)

Five-judge panel: Justice David Doherty, Justice Kathryn Feldman, Justice Marc Rosenberg (majority opinion), Justice James MacPherson, Justice Eleanore Cronk (minority opinion)

The following parties were often asked to comment in Quebec media:

Emilie Laliberté, executive director of Stella (support and advocacy for sex workers)- for court ruling, but wanted communicating in public for the purpose of prostitution to be legal
Rose Dufour, founder of la Maison de Marthe (helps prostitutes leave sex work)- doesn’t think ruling will help
Genevieve Quinty, PIPQ (Project Intervention Prostitution Quebec)- doesn’t think ruling will help
Julie Miville-Dechene, president du Conseil du statut de la femme- against court ruling

After Ontario ruling- Conseil du statut de la femme made an official recommendation to the Justice of Quebec to not penalize sex work but punish pimps and clients (Swedish model) – asks for them to pressure federal government, wants to eradicate prostitution

Other people of note mentioned in Quebec media:
Tim Lambrinos, director general de l’Association canadienne du divertissement pour adultes
Amelie Bedard- LUNE (offers housing for street prostitutes)
Anna-Louise Crago, coordinator of Stella

Others often quoted in National Media:
Nikki Thomas- Executive Director of Sex Professionals of Canada, for Ontario ruling
Katrina MacLeod- Walk with Me (support and advocacy for survivors of human trafficking), against Ontario ruling

PROSTITUTION LAWS AROUND THE WORLD

USA

Prostitution is against the law, except in Nevada. It is primarily state legislation that governs prostitution. Most states criminalize prostitution as well as the activities surrounding it, including soliciting in public and running a brothel. Some jurisdictions have created additional criminal sanctions to control prostitution, such as the creation of prostitution-free zones in various cities. However, there is little consistency in the enforcement of these laws.

Nevada

Prostitution is only permitted in licensed brothels. Counties have zoning regulations that limit the location and the number of brothels within its territory. Consequently, Nevada has had a relatively consistent number of brothels since the 1970s. Some counties even regulate brothels’ number of employees and working hours. All prostitutes must register with police and pass a mandatory HIV/STD test. Furthermore, regular monthly testing is enforced.

Elsewhere

Counties have traditionally restricted prostitutes’ mobility, including placing limits on when they may go into town and where they can go. Recent research suggests, however,   that most counties no longer police the activities of persons selling sexual services” (Hindle, Barnett & Casavant, 2008).

 In 2009, Rhode Island closed a loophole that allowed for indoor prostitution.

 In Louisiana, a convicted prostitute must register as a sex offender.

THE NETHERLANDS

The country’s approach to prostitution is labelled as “pragmatic tolerance.”

Since October 2000, prostitution is legal in brothels as long as it does not become a public nuisance. Prostitutes are protected under labour law and must pay taxes. Self-employed prostitutes have to register with the government. Those who exploit or coerce prostitutes are punishable under the criminal code.

Critics of this approach have said that these changes to prostitution laws have made life easier for European Union resident prostitutes, but have pushed illegal immigrant sex workers further underground.

SWEDEN

Sweden defines “prostitution [as] a form- a serious form- of male violence against women” (Hindle, Barnett & Casavant 2008), and laws were created with the view that all sex workers are victims. It is illegal to buy sex, but not to sell it, placing the criminality on the customer.

These has been a large decrease in prostitution since these laws were created, however not many customers have been convicted, as the laws are difficult to enforce. Some critics argue that these laws have simply driven sex work underground.

Norway and Iceland have adopted this model.

FRANCE

Prostitution is not illegal, but activities surrounding the trade are illegal including running a brothel and soliciting in public.

“In the aftermath of the scandal surrounding Dominique Strauss-Kahn last year, the French National Assembly signed a Resolution that “reaffirms the abolitionist position of France, the objective of which is ultimately a society without prostitution” on December 6, 2011. This resolution represents France’s recognition that prostitution is not sex work that should be legalized or regulated, but that it should rather be addressed as incompatible with France’s values of gender equality and human rights. Now, there is pending new legislation that follows the Nordic, or Swedish, model law–which would provide services and resources for women in prostitution and would criminalize sex buyers and pimps (Raymond, 2012).”

GERMANY

Prostitution is legal, and is municipally-regulated, restricted to certain areas. Brothels are considered regular businesses and do not require special licences.