C a n a d a ' s C u r r e n t L a w s

Canada's current prostitution laws initially intended to keep prostitution illegal. Nevertheless, the law has been played out in such a way that technically it is not illegal to be a prostitute in Canada. Many activities related to prostitution are illegal and women bear the brunt of this. Illegal activities include soliciting, procuring, living off the avails of prostitution and keeping a common bawdy house, which are found in sections 210 to 213 of the Criminal Code. It is important to note that there are several provisions in the Criminal Code that could be used to protect women in prostitution but are grossly underused. Provisions such as laws prohibiting abduction, confinement, various types of assault, human trafficking, intimidation and theft are rarely used to protect prostituted women, while the burden of proof in an instance of rape remains on the victim. Before attempting to repeal the following provisions in the Criminal Code, Canada needs to make an honest attempt at using existing laws to protect all women from violence and Canada needs to use existing laws to prosecute johns and abusers effectively. Click here for more information regarding gender imbalance in the use of Canadian prostitution laws.

Keeping a Common Bawdy House: section 210 (1): It is illegal for an owner, landlord, tenant, agent or property manager to knowingly allow their property or any part of the premises to be used as a place for prostitution (sex for money).

Being an Inmate of Common Bawdy House section 210 (2): It is illegal to work or live in a space that is used as a space where sex for money takes place.

Notice of Conviction of Keeping a Common Bawdy House section 210 (3) (4): When a person is convicted of keeping a common bawdy house [section 210 (1)], the court serves a notice to the landlord, property owner or manager saying that the tenant or occupier has been convicted of this offense. The landlord is then expected to take all reasonable steps to evict the person charged, and if he or she doesn't and the person gets charged again then the landlord or property owner will also be charged.

Transportation of a Person to a Common Bawdy House section 211: It is illegal to take, offer to take, or direct anyone to a common bawdy house.

Procuring section 212 (1): It is illegal to influence a person who is not a sex worker to become a sex worker, whether inside or outside Canada.

Exercising Control, Direction or Influence section 212 (1) (h): It is illegal to control the movements of a sex worker or force a sex worker to work for gain or profit.

Living on the avails section 212 (1) (J): It is illegal for anyone who lives with or who is habitually in the company of a sex worker to live partly or wholly on the income made from a sex worker. The purpose of this law is to target pimps who receive a portion of a sex worker’s earnings.

An escort service is guilty of section 212 if it profits from the prostitution (most escort agencies say they only charge for the companionship and time) of its employees.

Communication for the purposes of prostitution section 213: It is illegal for a sex worker and client to talk openly in public about exchanging money for sex. Public places include vehicles, parking lots, restaurants/bars, hotel lobbies, streets, or any place that the public has access to or that the public can view. A non-public place would be a hotel room, apartment or house (apartments and homes can be at risk through the bawdy house laws). It is also illegal to stop or attempt to stop or impede motor or pedestrian traffic.

Indecent act -- section 173 (1): also called exposure. Most people think this only applies to flashers or other perverts, but if a john and a prostitute are engaging in a sex act in a public place they can both be charged with this offense if they intended to offend passerby, or if the act takes place in the presence of other persons. Other offenses that might apply are sexual interference (section 151) and even sexual assault (section 271) if the prostitute is under 14; invitation to sexual touching (section 152); sexual exploitation (section 153); anal intercourse (section 159); and, child pornography provisions (section 163.1).

Loitering: Loitering is not illegal. In the past, prostitutes could be arrested under vagrancy laws if they were standing for some time on a street corner. These laws were repealed some time ago. Police can only encourage prostitutes to move from a certain location. They cannot arrest them unless they are doing something illegal.

Criminal code summary borrowed from CIHS Toolkit.
Click here to view the full criminal code.

R e p e a l i n g C a n a d a ' s P r o s t i t u t i o n L a w s?

In early 2007, the Parliamentary Subcommittee on Solicitation Laws released a report entitled “THE CHALLENGE OF CHANGE: A STUDY OF CANADA’S CRIMINAL PROSTITUTION LAWS”. The committee was comprised of 6 MPs, including 2 members of the Conservative Party, 2 members of the Liberal Party, 1 member of the Bloc Québécois and 1 member of the New Democratic Party. This study was the second attempt since 2003. The Subcommittee reviewed relevant literature and heard testimony from approximately 300 witnesses at public and private hearings and meetings across Canada from January 31 to May 30, 2005.

The committee had difficulty arriving at a consensus. Representatives from 3 or the 4 political parties felt that repealing all of Canada's prostitution laws were a reasonable option:

"Members from the Liberal, New Democratic, and Bloc Québécois Parties are of the view that sexual activities between consenting adults that do not harm others, whether or not payment is involved, should not be prohibited by the state." (ch.7.C)

The Conservative party members were the only members of the committee that were not in favor of repealing the laws:

"Unlike other parties, the Conservatives do not believe it is possible for the state to create isolated conditions in which the consensual provision of sex in exchange for money does not harm others. They believe that all prostitution has a social cost, and that any effort by the state to decriminalize prostitution would impoverish all Canadians — and Canadian women in particular — by signalling that the commodification and invasive exploitation of a woman’s body is acceptable." (ch.7. D)

The committee unanimously agreed on the following points:
-The commercial sexual exploitation of minors and trafficking in persons is unacceptable
-The status quo for prostituted persons in Canada is unacceptable
-Criminal laws pertaining to prostitution are unequally applied in Canada
-There is an urgent need for legislation and programs
-There is a need for further research and data collection

C o n s t i t u t i o n a l C h a l l e n g e of L a w s

Alan Young of Osgoode Hall is currently leading the Constitutional challenge of prostitution laws (Bedford vs. Canada). The Ontario Court of Appeal released it's judgement on March 26, 2012. Read more about the implications of the judgement here. The judge ruled that living off of the avails of prostitution and the bawdy house laws are unconstitutional and must be struck down.

"...the Court of Appeal upheld the trial judge’s decision that criminalizing brothels was a violation of section 7 of the Charter and struck it down. This aspect of the judgment will create a significant change in Canadian law if this decision stands." -Laura Johnston

If the Supreme Court deems that Canada's prostitution laws are indeed unconstitutional, parliament will be required to re-write or repeal Canada's legislation in regards to prostitution.

The Supreme Court has the ultimate power of judicial review over Canadian federal and provincial laws' constitutional validity. If a federal or provincial law has been held contrary to the division of power provisions of one of the various Constitution Acts, the legislature or Parliament must either live with the result, amend the law so that it complies, or obtain an amendment to the constitution. If a law is declared contrary to certain sections of the Charter of Rights and Freedoms, Parliament or the provincial legislatures may make that particular law temporarily valid again against by using the "override power" of the notwithstanding clause. In one case, the Quebec National Assembly invoked this power to override a Supreme Court decision (Ford v. Quebec (A.G.)) that held that one of Quebec's language laws banning the display of English commercial signs was inconsistent with the charter. Saskatchewan used it to uphold labour laws. This override power can be exercised for five years, after which time the override must be renewed, or the decision comes into force.

source: answers.com

Vancouver's Proposed Legal Brothels

In June 2007, Vancouver's Living In Community issued a report that was formulated over the course of 2 years. Action 21 of their action plan called for:

Action 21: Support the call from sex workers for the development and implementation of a multistakeholder cooperative to provide safe indoor workspaces, a code of conduct, education, and training for the most vulnerable sex workers.

Lead organizations: British Columbia Coalition of Experiential Women/Communities, with support from community and government organizations, including the Vancity Community Foundation, the Vancouver Agreement, and the Vancouver Police Department.

A safe place to work is needed immediately for the most vulnerable survival sex worker populations, who continue to work in isolated, dark and dangerous locations. Supporting sex workers to transition to less harmful conditions and non-exploitative environments, particularly from on-street to off-street locations, will reduce harm to them, increase their human rights, and keep neighbourhoods cleaner and safer.

The British Columbia Coalition of Experiential Women and Communities (BCCEW/C) is a consortium of sex worker activists who work to eliminate the oppressive systems and forces that create harm for individuals in the sex industry. BCCEW/C has been working in partnership with community organizations and sex workers themselves to explore the creation of Vancouver’s first sex worker cooperative: a massage parlour. Health and safety guidelines and a code of conduct for workers and for operating the establishment would help to ensure there would be no exploitation, safety would be maximized, and that the business was run in a way that was supportive of the health and safety of the entire community.

In Vancouver, there is a safe injection site called Insite, where drug users can legally inject drugs in the interest of harm reduction. These proposed cooperative brothels are seeking legal exemptions such as the ones under which Insite operates. There has been massive media attention on the proposed legal brothels and a degree of support from law enforcement and various levels of government.

For more information, see the Vancouver Sun "Coalition pushes for legal brothel" Nov. 12 2007

And a published Response to Vancouver Sun article Nov. 15 2007