JUST Committee Report
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Analyzing the impact of criminal laws concerning prostitution on the health and safety of those selling sexual services, as well as the health and safety of Canadian communities, was a central part of the Subcommittee’s mandate. After gaining an understanding of the legal framework surrounding adult prostitution and its application, we sought to assess its impact on public health and safety through empirical research and testimony from current and former prostitutes202 and social workers.
This chapter presents the analyses and views shared by the many witnesses we met throughout our study. It consists of two sections: the first documents the negative effects of the criminal laws aimed at controlling prostitution activities between consenting adults, while the second describes their positive effects.
Like many of the witnesses heard during the Subcommittee’s study,203 the literature concerning the impact of prostitution laws on the health, safety and well-being of prostitutes indicates that criminalization intended to control prostitution-related activities in Canada jeopardizes the safety of prostitutes, as well as their access to health and social services.204
In the following paragraphs, we examine the concerns raised by witnesses205 who maintained that the current provisions pertaining to prostitution are harmful to prostitutes’ health and safety, as they create an illegal market that is conducive to abuse and exploitation and encourage secrecy and the isolation of those selling sexual services.
Section 213 is the most frequently enforced of all criminal law provisions relating to prostitution. Since it was introduced in 1985, this provision has accounted for 90% of prostitution-related offences reported by the police. Yet numerous studies have shown that section 213 has not had the deterrent effect desired. It has not adequately reduced the incidence of street prostitution or even the social nuisance associated with its practice.206 These studies indicate that enforcement of section 213 has instead served to move prostitution activities from one place to another, and in so doing, has made those selling sexual services more vulnerable.
During our study, we heard that street level prostitutes face the following paradox in order to ensure their safety and at the same time avoid arrest under section 213 of the Criminal Code:
Working in an isolated area discouraged attention from police and residents but increased risks from bad dates and other aggressors; working in a well-lit, populated area discouraged bad dates but often led to unwanted attention from police and residents.207
In many of the cities we visited, a number of witnesses indicated that the enforcement of section 213 forced street prostitution activities into isolated areas, where they asserted that the risk of abuse and violence is very high.208 These witnesses told us that by forcing people to work in secrecy, far from protection services, and by allowing clients complete anonymity, section 213 endangers those who are already very vulnerable selling sexual service on the street. This is what the director of Pivot Legal Society, Katrina Pacey, told us:
In these areas, sex workers are more vulnerable to predation, robbery, harassment, and murder. In these areas, they’re unable to access help if they’re in trouble. 209
According to Professor Lowman, the isolation resulting from the application of section 213 has made street prostitutes especially vulnerable to violence and abuse. His research suggests that predators who are looking to abuse women are generally drawn to street prostitution because it allows them to remain out of sight and anonymous.210 Lowman maintains that violent men are not inclined to hire prostitutes who work for an agency or prostitution establishment for fear of being identified. According to him, it should therefore not be surprising that 80% of the women murdered in British Columbia between 1975 and 1994 were street prostitutes and did not work for prostitution establishments or agencies.211
The murder and disappearance of a large number of women prostitutes in the last 20 years are cited as the most compelling evidence of the extreme violence to which street prostitutes are subjected. Lowman maintains that these murders and disappearances are also indicative of the deteriorating conditions in prostitution since the introduction of section 213 in 1985:
I argue that the communicating law [section 213] played a pivotal role in creating a social and legal milieu that facilitated these homicides, and that Canadian prostitution law puts lower-echelon sex workers at risk.212
During our hearings, a number of witnesses maintained that the introduction of the communicating law (section 213) also led to the scattering of prostitutes, making them more vulnerable to violence and exploitation.213 Whereas in the past street prostitutes frequently worked in teams in an effort to reduce the risk of violence (for example by helping take down information such as clients’ licence plate numbers and descriptions), they now tend to work in isolation from one another.214 While this practice has the advantage of attracting less attention from police,215 it also minimizes information-sharing, making prostitutes more vulnerable to meeting violent clients since they are not as well informed and are often less aware of the resources available to assist them.216,
Similarly, witnesses also indicated that prostitutes in these areas are often unable to obtain assistance and exchange information about health and safety, since access to health and social services, as well as basic services such as public transportation, restaurants and public telephones is generally limited in isolated areas.217
Finally, various social service workers reported that they have experienced, greater difficulty reaching street prostitutes to offer health services, information or to provide condoms or lists of bad clients due to the enforcement of section 213.218
The vulnerability of persons engaging in street prostitution is also related to the fact that they frequently change locations. As a result of an arrest, fear of arrest, or a court order, such people are often forced to move to another area, effectively separating them from friends, co-workers, regular customers and familiar places. A number of witnesses indicated that this instability jeopardizes prostitutes’ health, safety and well-being.219
According to a number of witnesses, section 213 also places street prostitutes in danger by forcing them to conclude their negotiations with clients more quickly, often leading them to get into the client’s car too quickly. Here is what Gayle MacDonald told the Subcommittee in this regard:
Continued criminalization, specifically the communications provision of the Criminal Code, puts the sex worker in danger by increasing the speed of the negotiation of terms between the sex worker and her client, which is the most critical point for her to assess the client’s propensity to violence. If the sex worker is rushing to avoid encounters with the police, she may misjudge at great peril to her the safety of a client.220
Working out the details of the transaction before getting into a vehicle or going to a private location was considered important by all the prostitutes who testified. They told us that public bargaining would give them an opportunity to assess the likelihood of a potential client having violent tendencies. Summarizing the statements of 91 street prostitutes from Vancouver, Katrina Pacey said:
Sex workers describe their fear of being caught by police while negotiating the terms of a transaction with a potential client. As a result, they feel rushed in these negotiations and are not able to take the time required to adequately assess a client and to follow their own instincts, or to maybe note if that client has appeared on a bad date list.221
Witnesses also suggested that section 213 places prostitutes in a weak bargaining position. Many current and former prostitutes stated that it is more difficult to negotiate prices and services once they are in the vehicle. They are also at a disadvantage because, to avoid being arrested in sting operations, they usually let the client determine the prices and services. Gwen Smith, a member of PEERS Victoria and the Canadian National Coalition of Experiential Women, said in her testimony, “Due to the worry of being trapped by undercover police, women generally let the john name an act for a price first, giving him the advantage in negotiations.”
Although section 210, which prohibits bawdy houses, is seldom enforced, witnesses indicated that many people are at risk every day of being charged with being found in a common bawdy-house. Throughout our study, witnesses also maintained that this section leaves prostitutes with few options if they wish to sell their sexual services under safer conditions. One prostitute made the following points in a brief submitted to the Subcommittee:
Preventing those with the objective of engaging in prostitution from creating a safe place to do so only serves to create unsafe places to do business. As the law is now, the only possible way to carry out sex work is by going to home of a client. The unknown factors involved in a home visit (under current code) for the sex worker create a dangerous situation. One does not know if the client has any cemented connections to the address provided and therefore cannot be provided with security even if measures are taken to inform a friend or colleague where they are and who they are with. In fact, article 212 actually prevents a sex worker from taking such precautionary measures.223
In addition to prohibiting prostitutes from creating a stable environment, whether by using their residence or some other fixed location, witnesses argued that section 210 makes their lives more insecure by encouraging landlords to rescind the lease of anyone suspected of committing acts of prostitution.224
According to some witnesses, prostitutes’ family, social and working relationships are also disrupted by section 210, which states that anyone who visits the place where they sell their sexual services may be charged with being found in a common bawdy-house, no matter the reason for being there. They indicated that this seriously complicates the social lives of people who decide to sell sexual services from their homes.
Since section 211 of the Criminal Code criminalizes the act of referring a client to a prostitute and prohibits the establishment of a working relationship with anyone who might direct or transport a client to a place of prostitution, many witnesses maintained that this provision hinders the establishment of a safe, healthy environment in which persons may sell their sexual services. In particular, Eleanor Maticka-Tyndale noted:
In our research we found that sharing known clients and having people you trust refer clients, people such as taxi drivers and hotel staff with whom you've established a relationship, both enhance security.
In addition, strategies used by sex workers are also used by workers who have similar work environments, such as when they work late at night or in areas of the city that are considered less safe. For them, having someone you know give you a ride to work enhances your security. However, when those who provide you with transportation are at risk of being arrested and charged because they are transporting you for the purposes of sex work, his form of security enhancement no longer works to the benefit of those involved.225
According to the testimony of a number of former prostitutes, section 212 increases the isolation of those who engage in prostitution by criminalizing cohabitation and the establishment of an employer-employee relationship. Witnesses indicated that this prohibition is often disadvantageous for prostitutes who in some cases regard such options as having economic and safety benefits. Prostitutes told us that cohabitation is a good way to save money and can also reduce the risk of abuse and violence by reducing prostitutes’ isolation. Some witnesses indicated that the relationship with a manager or employer can also be beneficial. Some people reported feeling more comfortable and safer when a third party is responsible for finding and screening clients for them and providing them with a place to carry on their prostitution activities.
Throughout our study, a number of prostitutes told us that they lived every day with the fear of losing custody of their children, losing their lawful employment, being stigmatized and having to live with the devastating effects of the stigma of being a prostitute for their entire lives.
[TRANSLATION] The stigma associated with prostitution activity is a powerful social label that discredits and taints anyone to whom it is attached. It radically changes the way that person perceives himself/herself and is perceived as a person. Stigmatization exposes such people to various forms of violence, abuse and contempt. The stigma that sex workers feel or the fear of discrimination has a huge effect on their lives. As a result, they seldom trust government-run systems because they feel judged and categorized by those systems.226
To avoid this stigma and facing criminal charges, the Subcommittee heard that the vast majority of prostitutes do not report violence committed against them. Greg Paul, Executive Director of Sanctuary Ministries in Toronto, made the following statement:
I think it’s inevitable that somebody who’s engaged in an illegal activity, which solicitation currently is, is going to be uncomfortable going to the police for protection if in the process of that illegal activity, they are abused, which is so often the case.227
Witnesses said that prostitutes are thus deprived of police protection, since the police are seen as an adversary rather than an ally due to criminalization. This leaves prostitutes more vulnerable to predators.
A number of witnesses indicated that criminalization also contributes to the violence against prostitutes by making violence easier to justify. Kara Gillies told us that:
The criminal laws increase the risk of violence by prohibiting a series of safety-enhancing measures. The law also reinforces the characterization of sex workers as aberrant and therefore, in some way, acceptable targets of derision and abuse.228
Witnesses said that another consequence of criminalization is the criminal record. This is certainly a destabilizing factor in the life experience of people who have already been in conflict with the justice system. It is also a real obstacle to social integration. For example, people who have a criminal record will have more difficulty finding a conventional job, housing or travelling abroad.
Finally, some witnesses also noted that the current legal framework can jeopardize prostitutes’ economic security. These witnesses noted that incarceration and fines can often put people in a difficult position with regard to housing, employment, etc.229 Other witnesses, including Kara Gillies, argued further that prostitutes’ economic security is also jeopardized by “proceeds of crime” legislation, which “hinders workers’ capacity to save or invest for our futures and indeed, the futures of our families.”
Other witnesses noted how important the criminalization of clients of prostitution and pimps was in the broader campaign that they feel Canada should conduct to eradicate prostitution in all its forms, whether between consenting adults or not. The witnesses who made this argument regard persons who engage in prostitution as victims of an inherently violent, alienating activity that makes up part of the oppression of women by men.
This viewpoint is reflected in the testimony of Lyne Kurtzman of the Alliance de recherche IREF-Relais femmes of the Université du Québec à Montréal:
We believe it is time to take a stand on prostitution and to define our position as a society. […] prostitution practice [is based on] an unequal relationship between the sexes and specific exploitation of a small percentage of women. We must avoid introducing provisions that remove barriers to the trade in women’s bodies and legitimize the fact that men have unlimited access to the bodies of a certain number of women, thus creating two classes of female citizens: so-called respectable citizens and those dedicated to the sexual comfort of men.230
Most of the people who define prostitution in these terms feel that it is Parliament’s responsibility to censure the act of prostitution by criminalizing men who buy sexual services, as well as those who live on the avails of prostitution of another person, and in so doing, support all women who are engaged in prostitution and who are, consequently, victims of sexual exploitation and inequality between the sexes. The aim of the message is to discourage prostitution. For the proponents of this view, the primary purpose of criminalization is deterrence by sending the message of disapproval of prostitution.
Like the vast majority of the witnesses who testified before us, police officers generally recognize that enforcement activity based on section 213 of the Criminal Code231 does not lead to a reduction in the incidence of street prostitution. They agree that such activity merely moves the problem to another area or disperses it. Nevertheless, many police officers view section 213 as a useful and necessary instrument of prevention and intervention.
According to a number of police officers who testified before the Subcommittee, enforcement of section 213 offers them the opportunity to protect female prostitutes from a drug habit, from their pimp or from the inherent dangers of prostitution.232
A police officer who testified in a private hearing argued that simply taking prostitutes off the street, even for a short period, is itself a significant benefit of criminalization. This view is also evident in the testimony of Doug Le Pard, Deputy Chief of the Vancouver Police Department:
When we charge a sex trade worker, it is often in an attempt to create a gap or wedge between the sex trade worker and her pimp. With conditions placed on her, she becomes less of a marketable commodity and less of an asset. With less peer and pimp pressure on her, she may have the chance to work towards getting her life together and exiting the sex trade. Criminal charges can be and are stayed to assist sex trade workers who are seeking to exit the sex trade.
[…] the criminal law [has been used] as a tool to compel young women to seek or take advantage of resources that may help them exit the sex trade. For example, it might be a condition of probation that requires they meet with a counsellor who can help them develop exit strategies.233
During the Subcommittee’s hearings, police officers also stated that section 213 was useful in deterring clients. They said that many clients buy sexual services because they do not understand the harm that they are doing to society by engaging in such activities and very often are unaware of the desperate situation of most women who engage in prostitution. Having these factors explained to them in “john school” often discourages them from taking part in this kind of activity. Sergeant Matt Kelly of the Vancouver Police Department’s vice squad stated that:
[…] with the johns, section 213 allows us to educate and reduce some of the myths you’ve heard that exist around the sex trade industry, such as that the women actually enjoy it and they’ve chosen to go into it. These, of course, are myths.234
In the same vein, Staff Sergeant Terry Welsh of the Ottawa Police Service made the following statements:
Over the past seven years I’ve been dealing with using section 213 to assist with the education of both the customers and the sex trade workers. In dealing with section 213, it gives me the authority to arrest individuals, give them the option of attending an educational program john school and give them the education, show them the risks, the threats, the issues that are on the street to allow them to make a conscious decision about what is really happening in our community.235
In this respect, criminalization or arrest is seen as a form of social intervention.
In conclusion, although the witnesses differed in their opinions on the effects of these laws on prostitution and on the appropriate legislative response to prostitution, they all agreed that, at present, the most marginalized individuals are the ones most likely to experience the consequences of criminalization.
|202||In preparing this chapter, we also considered the opinions of 91 prostitutes from Vancouver’s Downtown Eastside, which we received in affidavits submitted by Pivot Legal Society. For more information, see Pivot Legal Society’s written submission, Voices for Dignity: A Call to End the Harms Caused by Canada’s Sex Trade Laws, 2004.|
|203||See in particular the testimony of John Lowman, Gayle MacDonald, Leslie Ann Jeffrey, Frances Shaver, Marie-Andrée Bertrand, Colette Parent, Christine Bruckert, Valérie Boucher, Jacqueline Lewis, Kara Gillies, Deborah Brock, Maurganne Mooney, Glenn Betteridge and a very large number of current and former prostitutes.|
|204||See in particular Canadian HIV/AIDS Legal Network, Sex, Work, Rights: Reforming Canadian Criminal laws on Prostitution, July 2005; and John Lowman, “Violence and the Outlaw Status of (Street) Prostitution in Canada” 2000 6(9) Violence Against Women 987.|
|205||See the testimony of Cherry Kingsley, Jennifer Clamen, Gayle MacDonald, Raven Bowen, Frances Shaver, Deborah Brock, Jaqueline Lewis and Laurie Ehler.|
|206||Section 213’s failure to combat street prostitution is well documented. As noted in the previous chapter, all the evaluation studies carried out by the Department of Justice in support of the Bill C-49 review process, as well as the study conducted in the mid-1990s by the Federal/Provincial/Territorial Working Group on Prostitution, found that section 213 had failed. Its enforcement has not reduced street prostitution activity or even the number of complaints by residents of Canada’s large cities. See: Department of Justice, Street Prostitution: Assessing the Impact of the Law, Ottawa, 1989; Department of Justice, Report and Recommendations in Respect of Legislation, Policy and Practices Concerning Prostitution-Related Activities, December 1998. Yet this was the goal when section 213 was introduced. The Hon. John C. Crosbie, then Minister of Justice and Attorney General of Canada, stated as much when he tabled Bill C-49 in committee: “The customer now negotiates and consummates the deal in most cases within the privacy and security of his car. Remove that opportunity and the demand for prostitution services will be substantially diminished. When the customer knows that there is a strong possibility that he may well be arrested and charged with an offence following the passage of this legislation if he attempts this kind of transaction, I can assure you that the demand is going to fall pretty rapidly.” See: House of Commons Legislative Committee on Bill C-49, An Act to amend the Criminal Code (prostitution), Minutes of Proceedings and Evidence Issue No. 1, September 19, 1985, 1st Session, 33rd Parliament, 1984-1985.|
|207||STAR (Sex Trade Advocacy and Research), Security and the Well-being of Sex Workers, brief submitted to the Subcommittee, June 2005, p. 25|
|208||This opinion was shared by all prostitutes who testified, as well as a number of social workers and researchers.|
|209||Testimony before the Subcommittee, 29 March 2005.|
|210||John Lowman, testimony before the Subcommittee, 21 February 2005; Jacqueline Lewis, testimony before the Subcommittee, 2 May 2005.|
|211||John Lowman and L. Fraser, Violence Against Persons Who Prostitute: The Experience in British Columbia, Technical Report TR 1996 14e, Justice Canada, 1996.|
|212||John Lowman, brief submitted to the Subcommittee, 2005, p. 7.|
|213||See in particular the testimony of Jeannine McNeil, Executive Director of the Stepping Stone program.|
|214||See in particular the testimony of Valérie Boucher, a Stella worker, testimony before the Subcommittee, 7 February 2005.|
|215||This practice therefore limits the risk of arrest.|
|216||STAR, Safety, Security and the Well-being of Sex Workers, brief submitted to the Subcommittee, June 2005, and Jacqueline Lewis, testimony before the Subcommittee, 2 May 2005.|
|217||STAR, Safety, Security and the Well-being of Sex Workers, brief submitted to the Subcommittee, June 2005.|
|218||See in particular the testimony of Susan Miner and Anastasia Kusyk, 15 March 2005, and Maria Nengeh Mensah, 2 May 2005.|
|219||STAR, Safety, Security and the Well-being of Sex Workers, brief submitted to the Subcommittee, June 2005.|
|220||Professor Gayle McDonald, Department of Sociology, St. Thomas University, testimony before the Subcommittee, 21 March 2005.|
|221||Testimony before the Subcommittee, 29 March 2005.|
|222||Testimony before the Subcommittee, 29 March 2005. See also the testimony of Kara Gillies, President, Maggie’s: The Toronto Prostitutes’ Community Service Centre, 2 May 2005.|
|223||Anonymous brief submitted to the Subcommittee.|
|224||Kara Gillies, President, Maggie’s: The Toronto Prostitutes’ Community Service Centre, testimony before the Subcommittee, 2 May 2005.|
|225||Professor Eleanor Maticka-Tyndale, Department of Sociology and Anthropology, University of Windsor, testimony before the Subcommittee, 2 May 2005.|
|226||Maria Nengeh Mensah, Réponse au rapport du Comité du Bloc Québécois sur la prostitution de rue, March 2002, p. 5.|
|227||Greg Paul, Executive Director, Sanctuary Ministries of Toronto, testimony before the Subcommittee, 15 March 2005.|
|228||Kara Gillies, President, Maggie’s: The Toronto Prostitutes’ Community Service Centre, testimony before the Subcommittee, 2 May 2005.|
|229||Maggie’s: The Toronto Prostitutes’ Community Service Centre, testimony before the Subcommittee, 2 May 2005.|
|230||Testimony before the Subcommittee, 9 February 2005.|
|231||As noted earlier, this section prohibits communication in public places for the purpose of prostitution.|
|232||This argument was particularly prevalent in discussions of police response to juvenile prostitution. As noted earlier, the Subcommittee prefers the term “sexual exploitation for the purpose of prostitution” when the people involved are minors. This is a serious crime and should be subject to severe penalties.|
|233||Doug Le Pard, Deputy Chief, Vancouver Police Department, testimony before the Subcommittee, 30 March 2005.|
|234||Testimony before the Subcommittee, 30 March 2005.|
|235||Testimony before the Subcommittee, 6 April 2005.|