JUST Committee Report
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CHAPTER FOUR: THE LEGAL RESPONSE TO PROSTITUTION
Canada’s prostitution laws have a long and troubled history. Stemming from England’s 19th century vagrancy laws, governments have frequently attempted to control prostitution through various legislative and other reforms. Despite this and the numerous studies commissioned to resolve problems related to prostitution, nothing thus far has produced results that are satisfactory to everyone. Twenty years ago, the Fraser Report — considered to be one of the most prominent studies of prostitution in Canada — made a series of recommendations aimed at improving the lives of both prostitutes and the communities affected by prostitution. The Report proposed to amend the current contradictory legal framework, in which adult prostitution per se is legal, although most activities related to it are illegal.
Notwithstanding this report, the current laws pertaining to adult prostitution are quite similar to those in effect in 1972 and earlier.
This chapter sets out the history of the prostitution laws in Canada. It also describes the legal framework surrounding prostitution-related activities, and the various problems with the application of those laws.
In any discussion of Canada’s legislative history, it must be noted that adult prostitution has always been legal. Nonetheless, adult prostitution “has been, and continues to be, attacked indirectly”111 through prostitution-related nuisance and exploitation laws. Canada’s prostitution laws have evolved from social and moral reform movements of the time, ranging from those who sought to treat prostitutes as victims in need of protection to those who sought the elimination of prostitution through a moral or criminal justice approach.
The Criminal Code was first passed in 1892 and dealt with prostitution through both vagrancy and bawdy house laws. Adapted from the English model, these laws treated brothels and street prostitution as nuisances and violations of public order. The bawdy house law made it an offence to keep a bawdy house, to be an inmate in a bawdy house, or to be found in a bawdy house — similar to the law that still exists today. In practice, the vagrancy law essentially made it an offence for women to engage in prostitution. Section 175(1)(c) deemed “a common prostitute or nightwalker [who] is found in a public place and does not, when required, give a good account of herself” to be a vagrant. These laws were obviously aimed at women prostitutes but not their clients
By the early twentieth century, the laws had been expanded to include provisions against pimping — procuring and living on the avails of prostitution. These new laws stemmed from a global concern about the “white slave trade”. Seen by many today to have been guided by paternalistic notions,113 this movement was grounded in the need to protect women and children from exploitation.114 Like the bawdy house laws, the procuring provisions were substantially similar to those in the Criminal Code today.
Although the bawdy house and procuring laws endured over time, the vagrancy law was adapted to modern sensibilities. In 1970, the Report of the Royal Commission on the Status of Women115 recommended repeal of the vagrancy provision and a study of how best to deal with street prostitution. Numerous other feminist and civil liberties organizations also increased pressure for such a change. What followed was the repeal of the vagrancy law in 1972 to shift the focus from a status offence, to one prohibiting a specific behaviour, namely, the act of soliciting for the purposes of prostitution in a public place. Section 195.1 of the Criminal Code now stated that “Every person who solicits any person in a public place for the purpose of prostitution is guilty of a summary conviction offence.” In its structure and purpose, this was the birth of the communicating law that exists today. The new law also appeared to rectify one form of discrimination that was inherent in the earlier law, since “person” could now apply equally to men and women selling sexual services.116
However, the new law was not without its drawbacks. As stated by Richard Mosley, then of the Department of Justice,
It caused a considerable amount of difficulty, in that its interpretation was disputed over the ensuing years. There was a considerable question in the courts as to what “solicit” meant. Did it mean a wink, a nod, or a casual conversation…? What level of importuning or persuasion was required in order to meet the standard of solicitation? There were questions as to whether it applied to customers, a customer soliciting someone else for the purposes in a public place. Did it apply to them? There were contradictory decisions on that. What was a public place itself was a question, and whether it applied to somebody soliciting from a motor vehicle in a public place.117
On a general level, court decisions tended to hold “that where a level of importuning or persuasion was exercised, soliciting had taken place.”118 However, the issue remained murky until February 1978, when the soliciting law was essentially struck down in Hutt v. R.119 In that seminal case, the Supreme Court of Canada adopted a very narrow interpretation of “solicit”, ruling that in order to meet the standard for criminal conduct, soliciting had to be pressing and persistent. Subsequently, the Supreme Court clarified that to be pressing or persistent, the impugned solicitation had to be “directed toward a single potential customer and could not consist of an accumulation of advances toward different potential customers.”120
Faced with such interpretations and other decisions ruling that a motor vehicle was not a public place, police across Canada saw themselves as effectively stymied in their attempts to curb street prostitution and essentially ceased using section 195.1. By refraining from persistent behaviour, prostitutes could remain on the streets with little fear of criminal sanction. Perhaps as a consequence, street prostitution in Canada grew appreciably in the 1980s, although other commentators argue that it was the indirect and contradictory nature of the prostitution law itself that led to this increase.121 John Lowman states that:
Many commentators at the time said that jurisprudence turned Canada’s streets into sexual supermarkets… and they attributed the flood of street prostitution to the Hutt decision… I think the Fraser Committee got it right when they said that what had caused the street prostitution problem was the contradictory and self-defeating nature of our prostitution law.122
Whatever the cause, after Hutt, there was increasing public pressure to amend section 195.1 to expand the definition of soliciting. Seeking further reform, in November 1978, the Law Reform Commission of Canada Report on Sexual Offences123 recommended making it clearer that the law applied to both male and female prostitutes, as well as further study of the law dealing with prostitution.
In direct response to the Law Reform Commission Report, in 1982, Bill C-127 was passed to amend the Criminal Code, adding a definition of “prostitute” as a person of either sex who engages in prostitution. The procuring section was also rendered gender-neutral. Two major national studies into sexual exploitation offences were also launched during this time — the Badgley Commission and the Fraser Committee.
The Badgley Commission was a study initiated by the government to look into the sexual exploitation of children and youth. In August 1984, the Commission issued its report,124 recommending changes to the criminal law with respect to the sexual exploitation of youth through prostitution and pornography. The Badgley Report was a wake up call to Canadian society, documenting the early age at which many enter into prostitution, and the role played by pimps in recruiting young people into prostitution.
The Fraser Committee was the other major study commenced after the House of Commons Justice Committee issued a report on street solicitation in March 1983. In June 1983, while the Minister of Justice tabled a bill in the House of Commons rejecting most of the recommendations of the Justice Committee, he announced the formation of the Special Committee on Pornography and Prostitution, led by Paul Fraser in order to study the problems arising from street prostitution, as well as its social and economic determinants. The Fraser Committee held extensive hearings across Canada:
[...] in an attempt to obtain maximum input from the Canadian public as to its concerns about prostitution. The hearings illustrated that the street prostitution issue divided the Canadian public; it pitted municipal officials, police forces and citizens’ groups, who felt that the Criminal Code should be strengthened to control street prostitution, civil libertarians, women’s groups and social services agents who favoured some form of decriminalization.125
In early 1985, the Fraser Committee released its report which noted the absence of consensus with regard to adult prostitution, the widespread nature of all forms of prostitution, and found that economic difficulties played a significant role for many women entering prostitution. The Committee also found that although most Canadians opposed the further criminalization of prostitution-related activities, there was wide support for initiatives that would deal with the nuisances associated with prostitution. The Fraser Committee ultimately concluded that prostitution was a social problem that required both legal and social reforms. Going against popular opinion with respect to judicial interpretation of solicitation, the Committee argued that it was the contradictory and often self-defeating nature of the various Criminal Code sections relating to prostitution that was at the root of the high levels of street prostitution in Canada, as despite the fact that prostitution was legal, the prostitution laws were used to control when and where it took place — essentially any time and any place. The Committee emphasized that this issue had to be addressed by any criminal law reform.126
In terms of its recommendations, the Fraser Committee provided suggestions for reform that could address the root causes of prostitution. The Committee recommended that governments commit themselves to removing social gender inequalities, ensuring the provision of social programs for women and children, and directing more funding to community groups involved with current and former prostitutes.
With respect to legal reform, the Fraser Committee leaned towards partial decriminalization. In its report, it recommended replacing bawdy house offences by a provision that allowed the use of premises for the purposes of prostitution if such use were restricted to only one or two prostitutes. The Fraser Committee also called for these prostitution establishments to be licensed and to be permitted to operate within regulatory schemes established by a provincial or territorial government. The Committee also recommended amending the various procuring and living on the avails offences by a provision that would make only clearly exploitative procurement a criminal offence — whether involving the use of force, threats or other coercive or threatening behaviour. Living on the avails would be replaced by an offence that referred to coercing an individual to support another financially through prostitution. As to street prostitution, the Committee focused on the public nuisance aspect, noting that “it would be unreasonable to relieve prostitutes of all legal responsibility for criminal acts or specific nuisances caused by their activities.”127 As regards this aspect, the Committee recommended a new offence involving repeated disturbances by pedestrians or motor vehicles for the purposes of prostitution. Finally, like the Badgley Report, the Fraser report dealt extensively with reforms to address the problems of children and youth exploited through prostitution.
3. 1985 — The Communicating Law
(a) The Communicating Law — Bill C-49
Responding to concerns about judicial interpretation, but ignoring the Fraser Committee’s position with respect to the soliciting law, in December 1985, the government introduced Bill C-49, replacing the soliciting law with the communicating law. This provision, now section 213, criminalizes communication in a public place for the purposes of engaging in prostitution or of obtaining the services of a prostitute. Now the key provision for dealing with street prostitution, this amendment did away with the difficult term “solicitation”, solidified the concept that “every person” means that both men and women selling sexual services and clients are liable to prosecution. This amendment also included a motor vehicle in the definition of a “public place.”128 However, by focusing on the public aspects of prostitution, the goal of the communicating law was obviously “to address the nuisance problem; it wasn’t to address the overall prostitution issue”.129
(b) Other Amendments and Studies
Over the next number of years, frequent amendments were made to the Criminal Code, and studies undertaken to examine the impact of the prostitution laws and possible reforms.
In 1988, the government followed up on some of the recommendations made by the Fraser Committee, particularly with respect to the commercial sexual exploitation of minors. Bill C-15 was passed, making it an offence to obtain or attempt to obtain the sexual services of a minor, and increasing the maximum penalty to 14 years for anyone convicted of living on the avails of the prostitution of a minor.
In May 1987, the Department of Justice commenced a study to evaluate the impact of the new communicating provision, concluding in July 1989 that street prostitution was as prevalent as it had been before the enactment of C-49 in most of the cities studied.130 Working within the framework of this research, the House of Commons Standing Committee on Justice and the Solicitor General released a report in October 1990, outlining its recommendations with respect to the communicating provision.131 Ultimately, the Committee concluded that the law was not meeting the objective of reducing the public nuisance problem, as its primary effect in most urban centres had been to move persons selling sexual services at the street level “from one downtown area to another, thus merely displacing the problem.”132 The report contained three primary recommendations aimed at providing alternatives for those wishing to get out of street prostitution, providing further deterrents for clients, and enhancing the effectiveness of law enforcement agencies:
That government departments develop start-up programs and core funding to community-based agencies providing programs accessible and responsive to the needs of sex workers wishing to leave the industry;
That the Identification of Criminals Act133 be amended to allow for the fingerprinting and photographing of those charged under section 213, whether as prostitutes or as clients; and
That section 213 be amended to provide judges with the discretion, in addition to any other penalty imposed, to prohibit persons convicted of communicating for the purposes of prostitution in instances involving a motor vehicle from driving a motor vehicle for up to 3 months.
The federal government responded to this report in March 1991, agreeing that programming was needed, but that this objective should be broadened to take into account the needs of all persons selling sexual services, not only those wishing to get out of prostitution. The government recommended further consultation with all stakeholders in this regard. However, the government rejected the other two primary recommendations, arguing that the proposed amendment to the Identification of Criminals Act did not strike an appropriate balance between societal concerns regarding prostitutes and the law enforcement objective of reducing and even eradicating street prostitution. The recommendation concerning driving suspensions was rejected as going beyond the sentencing discretion powers of a judge, and because the government found no rational connection between the offence and the punishment, as street prostitution did not require use of a motor vehicle. Arrest and prosecution were seen as a sufficient deterrent for the average client.134
In 1992, the Federal/Provincial/Territorial Working Group was established by the Deputy Ministers Responsible for Justice with a mandate to review legislation, policy and practices concerning prostitution-related activities and to provide recommendations. This working group issued two reports — an interim consultation paper in October 1995 which was mainly concerned with the commercial sexual exploitation of children and which led to significant legislative reforms,135 and a final report in December 1998 that made recommendations, and finalized issues and research on street prostitution and the sexual exploitation of children that had been highlighted in the earlier report. In its report, the Working Group noted that it was not able to recommend the repeal of the criminal provisions pertaining to communication for the purposes of prostitution (section 213) or bawdy houses (sections 210 and 211), due to the divergent views of the people it met during its study and the lack of conclusive findings on alternative measures.
Today, sections 210 to 213 of the Criminal Code set out Canada’s prostitution laws, covering offences related to keeping or using common bawdy houses, transporting a person to a bawdy house, procuring, and prostitution.
1. Section 213 — The Communicating Law
Because of the focus on nuisance, the primary and most often used prostitution offence is the communicating law, section 213, which forbids communication for the purposes of prostitution in a public space.136
It is thus illegal to engage in prostitution or to obtain the services of a prostitute in a public place.137 This restriction encompasses stopping or attempting to stop a motor vehicle and communicating or attempting to communicate for the purpose of engaging in prostitution or of obtaining sexual services. The communicating law is a summary offence, meaning that the penalty cannot exceed a $2,000 fine or six months imprisonment, or both.
In 1990, the Supreme Court of Canada upheld the constitutional validity of section 213(1)(c). The Court found that although section 213(c) does violate freedom of expression as guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms, this is a reasonable limit under section 1 given Parliament’s objective of eliminating street prostitution and the social nuisance it creates.138 As well, the Court found that the provision violates neither the Charter’s section 7 guarantee of life, liberty and security of the person, nor the section 2(d) freedom of association.139
2. Sections 210 and 211140 — The Bawdy House Laws
Section 210 of the Criminal Code contains the bawdy house offence that remains substantially similar in aim to that established more than a century ago.
The relevant definitions can be found in section 197(1). “Common bawdy-house” means a place that is kept or occupied, or resorted to by one or more persons, for the purpose of prostitution or to practice of acts of indecency. Courts have interpreted this to mean that any defined space is capable of being a bawdy house, from a hotel, to a house, to a parking lot — provided that there is frequent or habitual use of it for the purposes of prostitution or for the practice of acts of indecency,141 and the premises are controlled or managed by prostitutes or individuals with a right or interest in that space.142 Further, a community standard of tolerance test is used to determine whether an act is indecent.143 Within this framework, interpretation of indecency will depend on context, looking at factors such as consent, the composition of any audience and the level of privacy of the room, community reputation of the place, and any harm caused.144 The bawdy house laws are summary offences.
Courts have also held that to be found guilty of keeping a common bawdy-house, a person must have some degree of control over the care and management of the premises and must participate to some extent in the illicit activities involved there — although this does not necessarily mean participating in the sexual acts.145 A person selling sexual services may be found guilty of keeping a common bawdy-house if he or she uses his or her own residence for the purposes of prostitution.146
Alternatively, to be found guilty of being an “inmate” of a bawdy-house, a person must be a resident or a regular occupant of the premises. To be guilty of being “found in” a bawdy house, a person must have no lawful excuse for his or her presence and must have been explicitly found there by the police.147 Finally, courts have said that to be guilty of knowingly permitting the premises to be used for the purposes of a common bawdy house, a person must have actual control of the place and must have either acquiesced to or encouraged use for that purpose.148
Finally, to be found guilty of transporting an individual to a bawdy house, the act must be done in full knowledge that the location is a bawdy house.
The offence of procurement is contained in section 212,149 and carries the toughest penalty for prostitution-related offences under the Criminal Code.
Section 212(1) lists various methods of procurement, and states that a person committing such crimes is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years. Section 212(3) relates to the evidence necessary for a charge under section 212. 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 — a rebuttable presumption.150 This offence connotes a form of parasitic living on a prostitute’s earnings, where an accused must have directly received all or part of the prostitute’s proceeds from prostitution.151
Procurement encompasses the following situations:
Employers who require or attempt to require an employee to have sexual intercourse with a client;152
Enticing someone who is not a prostitute into becoming a prostitute or into a bawdy-house for the purposes of illicit sexual intercourse or prostitution;
Procuring a person to enter or leave Canada for the purposes of prostitution;
Controlling or influencing another person for gain in order to facilitate prostitution;153
Intoxicating a person for the purpose of enabling anyone to have sexual intercourse with the intoxicated person; and
Living on the avails of prostitution.
Dealt with as a separate issue from adult prostitution, the toughest prostitution-related penalties deal with the procurement of minors (under 18). Sections 212(2) and (2.1) expand the general procurement offence contained in section 212(1) for such situations. Under section 212(2), a person who lives on the avails of prostitution of a minor is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years. Section 212(2.1) provides a further offence punishable with imprisonment of up to 14 years, but not less than 5 years, for a person who lives on the avails of prostitution of a minor, for the purposes of profit, aids, abets, counsels or compels the minor to engage in prostitution, and uses, threatens to use or attempts to use violence, intimidation or coercion against the minor. Finally, section 212(4) states that every person who obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a minor, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. Thus, solicitation of the sexual services of a minor is always illegal.154 It is no defence to say that the accused believed the minor was 18 years old.
4. Other Criminal Code Provisions
Beyond the prostitution-related provisions, a number of other Criminal Code offences protect prostitutes from violence and exploitation and communities from the nuisance associated with prostitution. In terms of the protection of persons selling sexual services, these offences include human trafficking, intimidation, theft, abduction and confinement, and various forms of assault.155 By contrast, communities are protected by public nuisance laws, including various disturbance and indecency laws, and those to combat organized crime. An annotated list of Criminal Code offences that a majority of the members of the Subcommittee believe can be used to protect prostitutes and communities is provided in Appendix D.156
The existence of these general provisions provided the basis for an argument for repeal of the prostitution-related laws among witnesses appearing before the Subcommittee, including Francis Shaver, Katrina Pacey of PIVOT Legal Society, and members of Stella, and of Maggies. This decriminalization argument was founded on the belief that appropriate use of these general provisions against exploitation, violence, and nuisance was a more effective means of combating the harms associated with prostitution than attacking prostitution as a harm in and of itself. Deborah Brock of York University stated that she wants:
[…] to see prostitutes and other sex workers protected by law. Where the exploitation of sex workers by other persons occurs, I recommend that police enforce existing legislation in the Criminal Code, such as sexual assault, other forms of assault, fraud, abduction, theft, extortion, forcible confinement, and so on. There are plenty of criminal laws to deal with the abuse impacts on prostitutes. These name and target the actual problem rather than relying on prostitution-specific legislation.157
Canada is signatory to numerous human rights treaties that underscore the concept of human dignity, and attempt to resolve problems derived from prostitution by looking at the issue from a global perspective and imposing national obligations. As a foundational human rights instrument in international law, the 1948 Universal Declaration of Human Rights158 emphasizes that “all human beings are born free and equal in dignity and rights”. These very basic equality rights are further elaborated in the two primary international human rights conventions to which Canada is a signatory — the International Covenant on Civil and Political Rights,159 and the International Covenant on Economic, Social, and Cultural Rights.160 Canada has also committed itself to international conventions specific to women and children’s rights. These conventions avoid condemning or endorsing all forms of adult prostitution so as to focus attention instead on the exploitation of women through trafficking and forced prostitution. By contrast, all forms of commercial sexual exploitation of children are condemned. States are urged to punish those who exploit women and children.
The 1979 UN Convention on the Elimination All Forms of Discrimination against Women161 (CEDAW) focuses on women’s equality rights, with article 6 stating that States Parties must take all appropriate measures to suppress trafficking in women and the “exploitation of prostitution of women”. Canada ratified CEDAW in January 1982.
Targeting prostitution issues with regards to both women and children, in 1995 the Fourth World Conference on Women resulted in the Beijing Declaration and Platform for Action.162 Paragraph 113(b) of this document highlighted the fact that forced prostitution is a form of violence towards women. The Declaration outlined its strategic objective of eliminating trafficking in women and assisting victims of violence due to prostitution and trafficking.163 Signatories were called upon to support UN efforts to prevent and eradicate the commercial sexual exploitation of children, and to enact and enforce legislation to protect girls from all forms of violence.164 Canada committed itself to the Beijing Platform in September 1995.
The international community also put forward two additional documents to combat trafficking and forced prostitution in 2000. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention Against Transnational Organized Crime165 included the exploitation of the prostitution of others in its definition of “trafficking in persons”,166 and article 5 called upon States Parties to criminalize such trafficking. Canada ratified the Protocol in May 2002.
A number of instruments also focus particular attention upon the sexual exploitation of children through prostitution. In 1989, the UN Convention on the Rights of the Child167 was adopted to protect the human dignity and status of children, emphasizing the fundamental rights and best interests of children under 18.168 In particular, article 34 stated that signatories must protect all children from sexual abuse and exploitation by taking appropriate measures to prevent them from being forced into unlawful sexual activity, and from being exploited through prostitution. Canada ratified the Convention in December 1991.
In 1999, the international community returned to the issue of children’s rights in the International Labour Organization’s Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour.169 Articles 1 and 3(b) called on State Parties to take measures to eliminate the worst forms of child labour, including the use, procurement, and offering of children for prostitution. Canada ratified this convention in June 2000.
Finally, Canada ratified the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography170 in September 2005. Article 1 of the Optional Protocol calls on all parties to prohibit “child prostitution”, defining the term as “the use of a child in sexual activities for remuneration or any other consideration.” States are required to penalize the offering, obtaining, or providing of a child for prostitution in criminal law.171
These conventions, declarations, and protocols condemn the exploitation of women through prostitution, rather than prostitution itself. They ensure that prostitution as a whole is not the object, instead targeting the exploitation and violence linked to prostitution. The trafficking Protocol works within this same framework to condemn all trafficking in persons, with the recognition that trafficking is integrally linked to the exploitation of the prostitution or labour of others.
By contrast, these international instruments condemn all forms of commercial sexual exploitation of children. These laws target the people perpetrating the prostitution — the individual who used, procured, or offered the child.
Section 213, the communicating law, is the law with the greatest impact on the lives of street prostitutes. Among all the witnesses who appeared before the Subcommittee, this was the provision with the least support. Although some witnesses, primarily police officers and residents, maintained that the communicating law is one of the only tools that currently exists to combat prostitution by reducing harm to prostitutes and communities, witnesses nearly universally stated that section 213 is not an effective tool for achieving the Subcommittee’s mandate relating to the safety of prostitutes and communities. One of the primary reasons for this is that the goal of the communicating law was to address the nuisance problem, not prostitution as a whole.172
(a) Statistics and Demographics
Section 213 is by far the most used and prosecuted of the prostitution provisions in the Criminal Code. The focus of the law and its enforcement is on controlling street prostitution and its associated nuisances. The Subcommittee has heard that not only is this provision the easiest to enforce, but it is also the driving force behind most complaints to police. Since section 213 came into force in 1985, communicating offences represent more than 90% of all prostitution-related offences reported by police.173
Within the statistics on the use of section 213, a gender and role imbalance (client versus prostitute) quickly emerges, both in terms of guilty findings and sentencing. While the gender breakdown for those charged under section 213 offences seems to be relatively even between men (primarily clients)174 and women, prostitutes ultimately have higher conviction rates and face harsher sentences. To illustrate, in 2003-2004:175
68% of women charged were found guilty under section 213, while 70% of charges were stayed or withdrawn for men charged under the same provision;
Upon conviction, just under 40% of women were given prison sentences, while just under 40% of men convicted under the same provision were fined, and the prison sentence rate for men was just over 5%;
92% of those sentenced to prison for communicating offences in 2003-2004 were female.
Because of the marginalized environment in which they live, prostitutes often face criminal records176 and harsher penalties than their clients. Even though section 213 is a summary conviction offence that applies equally to both prostitute and client, due to their lifestyle and the relationship prostitutes often have with the law, many prostitutes fail to appear in court, leading judges to issue bench warrants for their arrest. When they are then arrested, prostitutes are consequently charged with more serious offences such as obstructing police, attempting to obstruct justice, and failure to appear in court — all offences which may lead to a criminal record. This is particularly common since prostitutes often plead guilty to such charges early on.177 Ann Pollack of the British Columbia Civil Liberties Association effectively highlighted the dilemma:
The women get charged, go to court, and then don’t show up for their court date, so they get arrested on a bench warrant… What starts off as a small crime… ends up in a significant jail sentence… It usually wouldn’t end up with a serious sanction, a prison sentence, if somebody was convicted of simply communicating for the purposes. But after you add on all the breaches of area restriction and the failure to attend court, you have all these crimes of process heaped up on top of what was a simple offence to begin with, and now somebody is looking at jail time.178
By contrast, statistics indicate that clients walk away with lighter penalties and fewer convictions than prostitutes under section 213. Clients usually manage to avoid full prosecution and jail sentences by attending “john school”, upon completion of which they receive a stay of charges or the charge is withdrawn. It may be that clients are more likely candidates for deterrence given their fear of discovery by family members or for their reputation more generally.179 Detective Howard Page of the Toronto Police Service stated that:
I believe because of the females’ unfortunate circumstances there’s a great disparity between the sentences that are being given to the prostitutes and the sentences and alternatives being given to the johns… I think there’s a large double standard, in the sense that I don’t believe sex trade workers should receive incarceration periods from the judicial system when we have johns buying their way out of any form of criminal record. I think that’s wrong, I think it’s distasteful, and I think it victimizes the prostitute again because it places a stigma on the prostitute, saying that what they did is treated as a harsher offence than what the john did.180
As mentioned earlier, section 213 is the easiest to enforce among the prostitution-related offences, and infractions are most often detected through the use of undercover operations involving an officer posing as a clients or prostitutes. In such cases, the undercover police officers can testify as to the illegal communication. However, it is in the operation of these “stings” that disparities in the prosecution of males and females again emerge. The report of the Federal-Provincial-Territorial Working Group on Prostitution noted, as was confirmed by police testimony before us, that police find it easier to conduct stings against those who sell sex rather than those who buy it, particularly because of the potential danger for an officer posing as a prostitute.
The situation of children and youth affected by section 213 is a difficult one, and the police approach has changed over time. On the surface, the section 213 offence applies equally to minors and adults. Age has no legal relevance to whether or not an individual may be charged with a communicating offence.181 However, both police and society’s philosophical approach is to see the involvement of minors as the commercial sexual exploitation of children. Minors are in the “position of committing a criminal offence while at the same time being victimized.”182
As a result, police practices have begun to change. Police most often use their discretion not to lay charges against children and youth, choosing instead to employ alternative approaches, such as teaching the child about the dangers of prostitution, taking the child home, or to a shelter.183 In 2003, juvenile prostitution offences accounted for less than 1% of all prostitution-related offences, with the number of police-reported incidents dropping from 181 in 1994, to 41 in 2003.184
In terms of the application and interpretation of sections 210 and 211 — the bawdy house offences — numerous concerns have been expressed as to unequal application of the law in comparison to the communicating offence, difficulties of enforcement, and overbroad application extending to contexts beyond the scope of prostitution.
(a) Statistics and Enforcement
Unlike section 213, the bawdy house provisions are rarely enforced by police, as they often pass under the radar of the prosecution process that is driven primarily by complaints. While witnesses testified as to the wide prevalence of various types of indoor prostitution at all levels of society,185 the rate for incidents involving bawdy house offences is less than one per 100,000 population.186 The problem is essentially that “the work the police have to do ahead of time to target the operations on the inside is phenomenal compared with addressing it on the street… Whereas the street prostitution is complaint-driven, there are not as many complaints on the inside…”187 Police appearing before us noted that enforcing sections 210 and 211 is time-consuming and expensive process, involving long surveillance operations. Added to this is the fact that operators usually hide behind charging a fee for legitimate services and claiming ignorance of any illicit activities taking place on the premises. The operator often escapes by placing the blame on those selling sexual services in their establishments.188
Numerous witnesses criticized the uneven enforcement of sections of the act, which creates a hierarchy in prostitution. When prostitution occurs out of public view, it goes unnoticed by law enforcement. The witnesses argued that the law is used to protect against nuisances that may harm the community, while ignoring the potential harm to prostitutes. A number of witnesses raised this issue during our hearings:
In Montreal, for example, massage parlours and escort agencies, where a large part of prostitution activity is carried on, are only very rarely subject to police intervention, unlike the street, where most police activity is focused… Police officers rarely go to the places were prostitution is hidden… When they hide in massage parlours or escort agencies, it’s tolerated; it’s even virtually accepted. On the street, it’s more of a problem. There it’s penalized.189
One of the problems we see with the prostitution law is that it is both illogical and hypocritical… You can have an escort service and never be bothered. A massage service is not bothered. But when you are on the streets, then the Canadian law seems to take effect. It seems that where it occurs is the offence, not that it’s occurring at all.190
Now looking at law enforcement and the impact of law enforcement on prostitutes, unfortunately, across Canada our law enforcement approach is detrimentally unbalanced, targeting… an already vulnerable population of street sex workers while overlooking the johns and pimps…191
During its hearings, the Subcommittee also learned that section 210 is regularly used in contexts that extend beyond the scope of prostitution. Relying on the definition of common bawdy-house contained in section 197(1), which includes a place that is used for the purposes of prostitution or the practice acts of indecency, police use section 210 to target bathhouses and saunas catering to the homosexual community, as well as “swingers’ clubs.”192 While recognizing the importance of the issue, the Subcommittee feels that the examination of homosexual bathhouses and “swingers clubs” was beyond the scope of its mandate. As a consequence, the Subcommittee suggests that the House of Commons Standing Committee on Justice and Human Rights undertake an examination of this issue to ensure that the rights of all citizens are protected.
Section 212, the procurement provision, targets the most clearly exploitative and abusive aspects of prostitution; however, the section is underused, primarily due to difficulties relating to enforcement and prostitutes’ refusal to cooperate in investigations.
(a) Statistics and Enforcement
Like the bawdy house provisions, charges are rarely laid under the procurement sections of the Criminal Code. Under-reported and under-prosecuted by police, procuring incidents account for less than 1% of all prostitution-related incidents reported. Even when charges are actually laid, they are usually stayed or withdrawn — in 2003-2004, 51% of charges laid under section 212 were stayed or withdrawn, while only 38% resulted in a finding of guilt.193
Unlike the bawdy house provisions, these low numbers are not the result of biased law enforcement, but rather are a reflection of the difficulty of acquiring evidence sufficient for an effective prosecution under section 212. Pimping activities are most often very clandestine, and are usually only revealed when prostitutes turn to the police for help. As a result, only the most violent or exploitative cases come to light for the purposes of prosecution.194
Unfortunately, the need for a prostitute to come forward has the additional consequence of requiring that person to testify in order to secure a conviction. Yet, prostitutes are often reluctant to testify against pimps, due to threats and fear of reprisals, and a lack of trust in police. The Subcommittee heard repeatedly that when they do agree to testify, prostitutes are often also subject to “severe attacks on their credibility because of their lifestyle.”195 As stated by Richard Dugal, of the Ottawa Police Service:
[…] the difficulty is that a lot of times we have to rely on the evidence of somebody who has been involved in sex trade work. That witness is akin to a battered spouse, where at the best of times it’s extremely hard to get a reported occurrence and for somebody to follow through in the court proceedings. The atmosphere and environment in the sex trade work is extremely exploitative. You’re dealing very much with people who have been brainwashed… So even if they’ve been horrendously assaulted… still they wouldn’t go through in following up…. [Testimony is obviously only] part of the evidence, but the courts tend to rely a lot on it, and they are very specific facts and issues we have to prove. In circumstances of a domestic assault, I guess the judiciary has taken a stance that you can allow a lot more collateral evidence — or a wider spectrum of evidence than direct evidence, I would suggest — than my experience has been when proceeding in court with pimping charges or ‘living on the avails’.196
One of the primary complaints among prostitutes is that the living on the avails of prostitution provision is too broad in scope. These witnesses and others told the Subcommittee that section 212(1)(j) is too broad in scope since it easily encompasses everyone in the prostitute’s private and professional life. As a result, they live in constant fear that their roommates or spouses could be accused of living on the avails. The provision also encompasses their employers and security guards,197 individuals who are essential to ensuring the prostitutes’ safety.
Although numerous courts, including the Supreme Court of Canada in R. v. Downey, have ruled that for a conviction under section 212(1)(j), the person accused of living on the avails of a prostitute must have undertaken a form of parasitic living,198 the rebuttable presumption contained in section 212(3) makes the significant potential for overbroad interpretation by the charging officer or the court still a cause for fear among those in prostitutes’ lives. This view was also shared by numerous organizations:
It’s PIVOT’s assessment that this section of the Code is overbroad and prohibits activities that could improve the safety of sex workers. For example, some sex workers would like to work for an employer or in a setting where they can work collectively and share the administrative or organizational aspects of their work; however, due to the procuring law, which makes it an offence to cause or to induce... once we engage in prostitution, which has been interpreted very broadly by our courts, certain scenarios that we may not see as necessarily a criminal offence can be prosecuted under this section. For example, a sex worker referring a good client to another sex worker and receiving some compensation actually can be captured by this law. Furthermore, anyone who takes on a managerial role can be prosecuted under this section… a husband or a partner can be criminalized for wage sharing with their partner, who is a sex worker.199
The primary targets envisaged by section 212 are the pimps and clients who sexually exploit children and youth through prostitution. However, even more so than their adult counterparts, children and youth are often reluctant to testify in court due to a variety of fears and lifestyle factors.
Statistics on the use of section 212 with respect to children and youth are also difficult to gauge, as practices vary among provinces. For example, police in some provinces resort to section 212(1)(h) with respect to the procurement of both youth and adults, while other provinces rely on section 212(2) when dealing with youth. As a result, some provinces have less reliable statistics to demonstrate the number of offences committed with respect to minors.200
The Subcommittee heard that one of the primary concerns with respect to the use of section 212 to punish those who sexually exploit children and youth through prostitution is that despite the harsh maximum sentences contained in those provisions, judges rarely come down with the full weight of the law in sentencing. The report of the Federal-Provincial-Territorial Working Group on Prostitution points out that courts in Alberta have traditionally imposed the harshest sentences on pimps, with penalties ranging from 3 to 9 years (the maximum sentence is 14 years). Many have expressed frustration with these relatively low sentences for such serious crimes. According to that report, the two major factors given to explain the low penalties were the courts’ perceived lack of understanding of the impact of procurement offences on children and youth, and low levels of enforcement of provisions such as section 212(4).201
| 111 | Federal-Provincial-Territorial Working Group on Prostitution, “Report and Recommendations in respect of Legislation, Policy and Practices Concerning Prostitution-Related Activities” December 1998, p. 5. |
| 112 | Fraser Report, p. 403-404; Richard Mosley, Legal Counsel, Department of Justice, testimony before the Subcommittee, 7 October 2003. |
| 113 | Fraser Report, p. 435-436; John Lowman, Professor of Criminology, Simon Fraser University, testimony before the Subcommittee, 21 February 2005. |
| 114 | Fraser Report, p. 403-404; John Lowman, testimony before the Subcommittee, 21 February 2005. |
| 115 | Report of the Royal Commission on the Status of Women (Ottawa: Information Canada, 1970). |
| 116 | Federal-Provincial-Territorial Working Group on Prostitution Report, p. 5; James Robertson, Prostitution, Library of Parliament, Current Issue Review, September 19, 2003, p. 2. |
| 117 | Richard Mosley, Legal Counsel, Department of Justice, testimony before the Subcommittee, 7 October 2003. |
| 118 | Federal-Provincial-Territorial Working Group on Prostitution Report, p. 5. |
| 119 | (1978), 82 D.L.R. (3d) 95 (S.C.C.). In this case, an undercover police officer allowed the accused to enter his car, at which point she identified herself as a prostitute and began to discuss her terms. The court held that such conduct was not within the scope of section 195.1, which Parliament originally intended to prohibit acts “which would contribute to public inconvenience.” |
| 120 | Federal-Provincial-Territorial Working Group on Prostitution Report, p. 5. |
| 121 | Federal-Provincial-Territorial Working Group on Prostitution Report, p. 6; John Lowman, Professor, Criminology Department, Simon Fraser University, testimony before the Subcommittee, 21 February 2005; James Robertson, Prostitution, p. 3. |
| 122 | John Lowman, Professor, Criminology Department, Simon Fraser University, testimony before the Subcommittee, 21 February 2005. |
| 123 | Law Reform Commission of Canada, Report on Sexual Offences (Ottawa: Law Reform Commission of Canada, 1978). |
| 124 | Committee on Sexual Offences Against Children and Youth, Sexual Offences Against Children, 1984. |
| 125 | Federal-Provincial-Territorial Working Group on Prostitution Report, p. 6. |
| 126 | Ibid. |
| 127 | Fraser Report, p. 573. |
| 128 | Federal-Provincial-Territorial Working Group on Prostitution Report, p 6-7; R. v. Smith (1989), 49 C.C.C. (3d) 127 (B.C.C.A.). |
| 129 | Lucie Angers, Senior Council, Criminal Law Police Section, Department of Justice, testimony before the Subcommittee, 31 January 2005. |
| 130 | A. Brannigan, L. Knafla, and C. Levy, Street Prostitution: Assessing the Impact of the Law, Calgary, Regina and Winnipeg (Ottawa: Department of Justice, 1989). |
| 131 | Fourth Report of the Standing Committee on Justice and the Solicitor General on Section 213 of the Criminal Code (Prostitution-Soliciting), 4 October 1990. |
| 132 | Federal-Provincial-Territorial Working Group on Prostitution Report, p. 7. |
| 133 | R.S. 1985, c. I-1. |
| 134 | James Robertson, Prostitution, p. 13-14. |
| 135 | Amending the Criminal Code in May 1997, Bill C-27 was aimed at protecting youth from exploitation through prostitution, and at facilitating the prosecution of Canadians involved in sexual offences against children, whether at home or abroad. Bill C-27: 1) Created the indictable offence of aggravated procuring, applicable to those who force youth into prostitution through violence or intimidation; 2) Made the provision outlawing the procurement of minors easier to enforce and prosecute by providing that a person could be prosecuted for obtaining the sexual services of a person whom the offender believes to be under 18. However, the amendment allowed evidence that the procurer held the youth out to be under 18 as proof of the accused’s belief to that effect, in the absence of evidence to the contrary. This amendment facilitated police use of undercover agents, rather than using juvenile decoys; 3) Extended procedural safeguards to juvenile witnesses appearing in prostitution-related proceedings, including publication bans and the ability to testify outside the courtroom, behind a screen or on videotape. Bill C-51 was also introduced in June 1998 in response to the Working Group’s report and concerns with respect to sexually exploited youth. In an attempt to facilitate the investigation and prosecution of offences involving sexually exploited minors, this Bill’s intent was to clarify the provision by removing the words “attempts to obtain” from the procurement of minors provision, replacing them with “communicates with any person for the purpose of obtaining.” This essentially eliminated the need to prove that the accused knew the victim was under 18, as had been required by Bill C-27. Bill C-51 also further simplified the prosecution of prostitution offences by allowing police to use electronic surveillance when investigating prostitution-related cases. See Federal-Provincial-Territorial Working Group on Prostitution Report, p. 12; James Robertson, Prostitution, p. 19-22. |
| 136 | 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. (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. |
| 137 | Section 197(1) defines “public place” as any place to which the public has access as of right or by invitation, express or implied. This includes any place that is open to public view, including a car that is on a public street. See: R. v. Smith (1989), 49 C.C.C. (3d) 127 (BC CA). |
| 138 | Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; R. v. Stagnitta (1990), 56 C.C.C. (3d) 17 (SCC). |
| 139 | Reference re ss. 193 and 195.1(1)(c) of the Criminal Code; R. v. Skinner, [1990] 1 S.C.R. 1235; R. v. Stagnitta. |
| 140 | S. 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. (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. S. 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. |
| 141 | R. v. Patterson, [1968] S.C.R. 157; R. v. Sorko, [1969] 4 C.C.C. 214 (BC CA); R. v. Rockert, [1978] 2 S.C.R. 704; R. v. Ikeda (1978), 42 C.C.C. (2d) 195 (Ont CA); R. v. Lahaie (1990), 55 C.C.C. (3d) 572 (Qué CA); William A. Schabas, Les infractions d’ordre sexuel (Éditions Yvon Blais: Cowansville, 1995), p. 107; Recherche du Conseil du statut de la femme, “La Prostitution: Profession ou exploitation? Une réflexion à poursuivre” (May 2002), p. 119. |
| 142 | R. v. Pierce (1982), 37 O.R. (2d) 721 (CA). |
| 143 | R. v. Tremblay, [1993] 2 S.C.R. 932; Recherche du Conseil du statut de la femme, “La Prostitution: Profession ou exploitation? Une réflexion à poursuivre”, p. 122. |
| 144 | R. v. Theirlynck (1931), 56 C.C.C. 156 (SCC). |
| 145 | Section 197(1); R. v. Corbeil, [1991] 1 S.C.R. 830. |
| 146 | R. v. Worthington (1972), 10 C.C.C. (2d) 311 (Ont CA). |
| 147 | R. v. Lemieux (1991), 70 C.C.C. (3d) 434 (Qué CA). |
| 148 | R. v. Wong (1977), 33 C.C.C. (2d) 6 (Alta CA); R. v. Corbeil. |
| 149 | S. 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 bawdyhouse, 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; is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. (2) Notwithstanding 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. (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. (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). (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. |
| 150 | R. v. Downey (1992), 72 C.C.C. (3d) 1 (SCC); Recherche du Conseil du statut de la femme, “La Prostitution: Profession ou exploitation? Une réflexion à poursuivre”, p. 25. |
| 151 | R. v. Grilo (1991), 64 C.C.C. (3d) 53 (Ont CA); R. v. Bramwell (1993), 86 C.C.C. (3d) 418 (BC CA); R. v. Celebrity Enterprises Ltd. (1998), 41 C.C.C. (2d) 540 (BC CA). |
| 152 | R. v. Deutsch, [1986] 2 S.C.R. 2. |
| 153 | R. v. Perrault (1996), 113 C.C.C. (3d) 573 (Qué CA). |
| 154 | Recherche du Conseil du statut de la femme, “La Prostitution: Profession ou exploitation? Une réflexion à poursuivre”, p. 126. |
| 155 | Children receive additional protection from specific sexual exploitation and child abduction provisions. |
| 156 | Although this is not an exhaustive list, it provides an overview of the general provisions contained in the Criminal Code. |
| 157 | Deborah Brock, Professor, Department of Sociology, York University, testimony before the Subcommittee, 9 February 2005. |
| 158 | UN General Assembly Resolution A/RES/217 1948. |
| 159 | 999 U.N.T.S. 171, 1976. |
| 160 | 993 U.N.T.S. 3, 1976. |
| 161 | 1249 U.N.T.S. 13, 1979. |
| 162 | A/CONF.177/20 1995 and A/CONF.177/20/Add.1 1995. |
| 163 | Ibid., para. 130. |
| 164 | Ibid., paras., 230(m) and 283(d). |
| 165 | UN General Assembly Resolution 55/25 2000. |
| 166 | Ibid., art. 3. |
| 167 | UN General Assembly Resolution 44/25 1989. |
| 168 | Recherche du Conseil du statut de la femme, “La Prostitution: Profession ou exploitation? Une réflexion à poursuivre”, p. 95. |
| 169 | International Labour Organization, Convention 182 (1999). |
| 170 | UN General Assembly Resolution 54/263 2000. |
| 171 | Ibid., art. 3. |
| 172 | Lucie Angers, Senior Council, Criminal Law Police Section, Department of Justice, testimony before the Subcommittee, 31 January 2005. |
| 173 | Roy Jones, Director, Canadian Centre for Justice Statistics, testimony before the Subcommittee, 16 May 2005. |
| 174 | The statistics do not differentiate between male prostitutes and male clients, but are, however, based on an assumption that clients make up the largest part of this grouping. As a result, interpreting the male to female ratios in the statistics as an indicator of client to prostitute ratio, is not entirely accurate. Rectifying this discrepancy would most likely result in even higher numbers of prostitutes to clients facing convictions and harsher sentencing. |
| 175 | Suzanne Wallace-Capretta, Research Manager, Department of Justice, testimony before the Subcommittee, 31 January 2005; Roy Jones, Director, Canadian Centre for Justice Statistics, testimony before the Subcommittee, 16 May 2005; and documentation provided by the Canadian Centre for Justice Statistics, Prostitution in Canada, (Statistics Canada), p. 12. |
| 176 | Police cannot fingerprint and photograph individuals charged under section 213, as it is a summary conviction offence. In terms of criminal records, there is a difference between indictable and summary offences. Charges and convictions for indictable offences that can be verified by fingerprints and photographs are entered at the Canadian Police Information Centre (C.P.I.C.), a national database accessible by all Canadian police forces. Police check the name of any individual who is arrested through C.P.I.C.; however, they rarely search for criminal records of summary conviction offences outside their own jurisdiction. |
| 177 | Federal-Provincial-Territorial Working Group on Prostitution, p. 40-1; Suzanne Wallace-Capretta, Research Manager, Department of Justice, testimony before the Subcommittee, 31 January 2005. |
| 178 | Ann Pollack, Board Member, British Columbia Civil Liberties Association, testimony before the Subcommittee, 30 March 2005. |
| 179 | Fraser Report, p. 390. |
| 180 | Detective Howard Page, Toronto Police Service, testimony before the Subcommittee, 15 March 2005. |
| 181 | The age of consent to sexual activity is set out in section 150.1 of the Criminal Code. This section ensures that consensual sexual activity with or between persons 14 or over is not criminalized, unless it takes place in a relationship of trust or dependency, in which case sexual activity with persons over 14 but under 18 can constitute an offence, notwithstanding their consent. As well, consensual activity with those under 14 but over 12 may not be an offence if the accused is under 16 and less than two years older than the complainant. This age of consent is a separate issue from that of the prostitution of a minor, as criminalized in sections 212(2), 212(2.1), and 212(4). As stated by Detective Sergeant John Muise, “the reality is that it doesn’t impact on these offences.” These aggravated procuring offences apply regardless of any potential consent by the minor involved. As well, the section 213 communicating offence still applies to any minor involved in prostitution. |
| 182 | Federal-Provincial-Territorial Working Group on Prostitution, p. 27. |
| 183 | Ibid. |
| 184 | Roy Jones, Director, Canadian Centre for Justice Statistics, testimony before the Subcommittee, 16 May 2005; Department of Justice document, Statistics Related to Prostitution Offences (s. 212 & s. 213 CCC), p. 2. |
| 185 | As noted in Chapter 2, indoor prostitution accounts for 80% or more of all prostitution. |
| 186 | Roy Jones, Director, Canadian Centre for Justice Statistics, testimony before the Subcommittee, 16 May 2005. |
| 187 | Dianna Bussey, Director of Correctional and Justice Services, Salvation Army in Canada, testimony before the Subcommittee, 16 February 2005. |
| 188 | Terry Welsh, Ottawa Police Service, testimony before the Subcommittee, 6 April 2005; Fraser Report, p. 412. |
| 189 | Aurélie Lebrun, Research Officer, Alliance de recherche IREF-Relais femmes, testimony before the Subcommittee, 9 February 2005. |
| 190 | Gwendolyn Landolt, National Vice-President, REAL Women Canada, testimony before the Subcommittee, 14 February 2005. |
| 191 | Janet Epp Buckingham, Director of Law and Public Policy, Evangelical Fellowship of Canada, testimony before the Subcommittee, 16 February 2005. |
| 192 | For example, charges were ultimately dropped against Terry Haldane in Calgary, who is currently considering launching a Charter challenge to this section of the Criminal Code. See also R. v. Kouri, [2004] Q.J. No. 7724 (Que. C.A.) and R. v. Labaye, [2004] Q.J. No. 7723 (Que. C.A.), both of which are currently under consideration by the Supreme Court of Canada. |
| 193 | Department of Justice document, Statistics Related to Prostitution Offences (s. 212 & s. 213 CCC), p. 10. |
| 194 | Fraser Report, p. 390, 417-418. |
| 195 | Federal-Provincial-Territorial Working Group on Prostitution, p. 42. |
| 196 | Richard Dugal, Ottawa Police Service, testimony before the Subcommittee, 6 April 2005. |
| 197 | R. v. Barrow (2001), 155 C.C.C. (3d) 362 (Ont. C.A.); R. v. Downey. |
| 198 | R. v. Downey, p. 45: “The true parasite whom s. 212(1)(j) seeks to punish is someone the prostitute is not otherwise legally or morally obliged to support. Being a prostitute is not an offence, nor is marrying or living with a prostitute. A person may choose to marry or live with a prostitute without incurring criminal responsibility as a result of the financial benefits likely to be derived from the pooling of resources and the sharing of expenses and other benefits which would normally accrue to all persons in similar situations.” |
| 199 | Katrina Pacey, Director, PIVOT Legal Society, testimony before the Subcommittee, 29 March 2005. |
| 200 | Federal-Provincial-Territorial Working Group on Prostitution, p. 19. |
| 201 | Ibid., p. 18-20. |