Case Study: Is Prostitution Legal In Canada?

1. Is Prostitution Legal in Canada?
This case study attempts to review the constitutional challenge to Canada’s prostitution law before its amendments in December 2014. The debate on Canada’s laws in regards to prostitution came to the forefront of public policy issues in the wake of the Supreme Court of Canada’s decision in Canada (Attorney General) v. Bedford. It is important to point out that this case is not about legalization of prostitution but whether the laws that the Canadian Parliament has enacted in regards to the activities related to prostitution are in accordance with the Canadian Charter of Rights and Freedoms. As stated by the Supreme Court of Canada in Bedford, prostitution is a legal and lawful commercial activity. However,
keeping a bawdy-house for the purpose of prostitution, living on the avails of prostitution and communicating in public for purpose of prostitution is a criminal act.
Prostitution can be operated in a wide range of indoor venues such massage parlors, strip clubs and private apartments visits arranged through escort services in addition to street-based prostitution. The majority of prostitutes are females who are marginalized and vulnerable. The criminalization of activities related to prostitution allows for exploitation, humiliation and abuse of prostitutes such as verbal harassment, assaults, sexual assaults and even murder. Laws relating to prostitution are controversial and it is vital that they safeguard the morality, equality, personal autonomy and safety of the prostitutes in accordance with the Charter. The Canadian government has the responsibility to ensure that laws do not violate rights and freedoms guaranteed under the Charter. When the government fails to do so, the courts can declare a law to be unconstitutional and ask the government to change it.
2. What are the Criminal Code Provisions regarding Prostitution?
Section 210 of the Criminal Code, makes it illegal to own, rent, use, work in or be found in a place that is used for the purpose of carrying out activities relating to prostitution. This place is commonly referred to as a bawdy-house as defined in section 197 which can include public or private places such as sex workers’ homes, massage parlors and even private motor vehicles may be considered as a bawdy-house according to this provision.
Section 212 of the Criminal Code, makes it a crime for anyone including family members or hired help to benefit from the profits made carrying prostitution. This provision was meant to protect prostitutes from being exploited or forced into prostitution however it also criminalizes any help that can be given to the prostitutes such as hiring security guards or medical help staff.
Section 213 of the Criminal Code, makes it illegal to stop or communicate for the purposes of prostitution with another person in a public spaces such as streets, parks, bars and even private motor vehicles. Sections 210 and 213 combined make it illegal to work private places on a regular basis and public space as well.
3. Case Brief on Canada v. Bedford
Three current and former prostitutes brought an application claiming that the three impugned provisions of the Criminal Code that criminalize activities related to prostitution as mentioned above are inconsistent with section 7 of the Charter. Section 7 guarantees “the right to life, liberty and security of the person and the right not to be deprived of this except in accordance with the principle of fundamental justice.” The applicants claimed in this case that sections 210, 212 and 213, impede their right to security as these provisions prohibit them from implementing safety measures to be protected from violent clients. Section 2 of the Charter guarantees freedom of conscience and religion, freedom of expression, freedom of peaceful assembly and freedom of association. The applicants claimed that section 213 infringes upon freedom of expression guaranteed under section 2 the Charter and cannot be saved under section 1 the Charter.
a. Ontario Superior Court of Justice
Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (“Prostitution Reference”), is an advisory opinion by the Supreme Court of Canada in 1990 which held that the prohibition on bawdy-houses and communication for the purpose of prostitution under section 213 is in violation of freedom of expression under section 2 of the Charter. Nevertheless, this violation is justified under section 1 of the Charter. The application judge in this case, Himel J. concluded that since jurisprudence regarding the doctrine of arbitrariness, over breadth and grossly disproportionality has significantly evolved ever since 1990 hence she can review this application for unconstitutionality of the three provisions. After considering 25,000 pages of evidence Himel J found all three of the provisions to deprive prostitutes of their right to liberty and security against the principles of fundamental justice in a way that is arbitrary, overboard and grossly disproportionate which cannot be justified under section 1. Himel J. She declared sections 212 and 213 unconstitutional without suspension and rectified section 210 by striking the word prostitution from section 197.
b. Ontario Court of Appeal
The majority in the Court of Appeal upheld Himel J.’s decision that two of the provisions - sections 210 and 212 - are unconstitutional however they suspended the invalidity for 12 months. The majority agreed with her reasoning that the prohibition on bawdy-house was overboard and its impact on security was disproportionate. However, the majority decided that the prohibition on living on the avails of prostitution is arbitrary but overbroad and grossly disproportionate in its effects. The Court of Appeal did not strike out the provision but narrowed it by reading in to in the “in circumstances of exploitation”. The majority in the Court of Appeal decided that section 213 prohibition on communication in public for the purpose of prostitution is constitutional as it not arbitrary it serves to protect the neighborhood, it is not overbroad or grossly disproportionate in its effect on a prostitutes security. The court is bound by the decision in Prostitution Reference, section 213 violates section 2 however it is justified under section 1. The minority agreed with Himel J. in this regard.
c. Supreme Court of Canada
Firstly, the Supreme Court of Canada stated that a trial judge can depart from a precedent and consider new arguments based on the Charter because changes in social, political or economic circumstances and evidences change the parameters of the debate.
Stare decisis means that a lower court cannot ignore binding precedent however it is not limited to precedent without considering the context of the case at hand. Secondly, The Supreme Court of Canada clarified that in determining whether a law causes violation of section 7 two points should be considered causation and principles of fundamental justice. The Supreme Court of Canada rejected the argument that there is insufficient causal relationship between the provisions and the safety risks faced by
prostitutes.
The Supreme Court of Canada applied a sufficient causal connection standard in which the context of this particular case is considered and conclusion is drawn on balance of probabilities that the three provisions caused suffering to the prostitutes. Principles of fundamental justice are a way to ensure that laws do not conflict with basic values. One of these principles is the principle against arbitrariness, overboard and gross disproportionality. A law is arbitrary when there is no connection between the purpose and outcome of the law. A law is overboard when the effect of the law goes too far and interferes with activities that are not part of its goal. A law is grossly disproportionate when the effect of the law is much harsher than the benefits of achieving its goals.
The Supreme Court of Canada agreed with the ruling by Ontario Superior Court of Justice and found all three provisions to be unconstitutional as they negatively impact prostitutes’ security of person in violation of section 7 of the Charter.
The Supreme Court of Canada concluded that the Court of Appeal made a number of errors in considering gross disproportionality test. The Supreme Court of Canada held that allowing prostitutes to operate from a designated place would permit them to create safer working conditions without fear of criminalization. Section 210 prohibition on bawdy-house is grossly disproportionate to its objective to prevent public disruption. The intended positive impacts of this provision does not outweigh the immense negative effects on safety of prostitutes. Section 212 prohibition on living on the avails of prostitution is overbroad as it criminalizes non-exploitative relationships. It criminalizes employment of security guards, drivers and receptionists which can be helpful and enhance safety of prostitutes. The Supreme Court of Canada reversed the decision of Court of Appeal on section 213 prohibition communication, by stating that the negative impact of the provision on the most vulnerable and marginalized group far outweighs the law’s effect to prevent public nuisance. The Supreme Court of Canada order the three provisions to be struck down since they deprive prostitutes of safety and enforce violence against them. The Supreme Court of Canada
allowed these three provisions to stay for 12 months to allow the Parliament to draft new laws that respect constitutional rights and freedoms of prostitutes.
d. Section 210: Keeping a Common Bawdy-House
The objective of this provision is to prevent public nuisance caused by in-call prostitution there is no evidence that this provision aims to deter prostitution. As a result of this provision, prostitutes are forced to work on the streets at different locations and search for new clients every time. This provision prevents prostitutes from working in a permanent designated safe indoor location where the risk of violence against them in reduced as they can have a regular clientele and monitor their clients by hiring body guards and receptionists. Prostitutes would be much safer operating from a familiar place where they are comfortable, close to others and feel safe in because the can control the situation and the people who they interact with. The evidence that was presented to the Supreme Court of Canada showed overwhelming numbers of crime against prostitutes which supports the conclusion that indoor prostitution would create safer space for prostitutes. On the balance of probabilities as discussed by Himel J. indoor work is far less dangerous than street prostitution, it is much safer to work from a fixed location.
e. Section 212: Living on the Avails of Prostitution
The purpose of this provision is to prevent exploitative relationships such as procurers who force or encourage a person to engage in prostitution. However, as this provision is very broad it does not distinguish and prohibits non-exploitative relationships without requiring proof of exploitation. Under this provision anyone is prohibited from giving service or good to a prostitute which prevents them from taking steps to ensure their safety. Hence, the law does not obtain the supposed objective.
f. Section 213: Communication in a Public Place
From Prostitution Reference, it is evident that the purpose of this section was to take prostitution off the streets and prevent public nuisances. It is important for prostitutes to communicate with their clients, screen and observe whether the client is intoxicated, high or has a demeanor suggesting that he might be violent and agree on the service and the payment. This provision takes away a prostitute’s chance to observe, set terms and make a decision accordingly instead they are forced to quickly get in the client’s motor vehicle and go to isolated areas where they have no control over what happens to them.
4. Bill C-36: The Protection of Communities and Exploited Persons Act
The government’s legislative response to the Supreme Court of Canada’s decision in Bedford was Bill C-36. The Protection of Communities and Exploited Persons Act or Bill C-36 was introduced came into force on December 6, 2014 makes prostitution an illegal practice. This legislation aims to reduce the demand for prostitution, deter participation in prostitution and ultimately eradicate prostitution completely. Bill C-36 introduced five offences and various amendments to the Criminal Code. This legislation shows a significant shift away from considering prostitution as public nuisance towards the view of prostitution as a form of sexual exploitation disproportionately and negatively impacting women. Bill C-36 treats those who sell sexual services, prostitutes, as victims who need support and assistant rather than blame and punishment.
Bill C-36 changes the definition of common bawdy-house to strike any reference to prostitution. Under this bill, prostitutes will not be prosecuted for operating from a fixed indoor location as long as the activity does not fit within the meaning of “the practice of acts of indecency”, which remains prohibited under sections 197 and 210. Communication offence under section 213(1.1) makes it an offence to communicate for the purpose of offering or providing sexual services for consideration only in public places that are next to school grounds, playgrounds and daycares. Purchasing offence under section 286.1 criminalizes communicating for the purpose of purchasing sexual services for consideration in any place. Purchasing sexual services is punishable by maximum 5 years imprisonment for indictment offence and 18 months for summary conviction. The legislation intends to protect communities by imposing higher fines on purchasers of sexual services in specific locations. In order to determine whether an act is considered sexual service for consideration, will consider the nature of the act and whether the purpose of providing the service is to sexually gratify the person who receives.
Advertising offence under section 286.4, criminalizes advertising the sale of sexual services in print media as well as advertisement on websites. Promotion of prostitution is correlated with the demand for prostitution. Publishers or website administrators could be held criminally liable as parties if they know of the existence of the advertisement and that the advertisement is in fact for the sale of sexual services. Section 268.2 -new material benefit offence- criminalizes receiving financial benefit from the prostitution of others in exploitative circumstances. Non-exploitative relationship such as hiring protective services is excluded from this offence. Section 286.3 makes it an offence to recruit, hold or force someone to provide sexual services for consideration.
5. Author’s Opinion and Conclusion
The Conservative government's new anti-prostitution law will continue to endanger the lives of people who work in the sex trade and in some cases make things worse, sex workers and advocates.
The three impugned provisions, primarily concerned with preventing public nuisance as well as the exploitation of prostitutes, do not pass Charter muster. They infringe the section 7 rights of prostitutes by depriving them of security of the person in a manner that is not in accordance with the principles of fundamental justice. The negative impact of the bawdy-house prohibition under section 210 on the applicants’ security of the person is grossly disproportionate to its objective of preventing public nuisance. The harms to prostitutes identified by the courts below, such as being prevented from working in safer fixed indoor locations and from resorting to safe houses, are grossly disproportionate to the deterrence of community disruption. Second, the purpose of the living on the avails of prostitution prohibition in section 212 is to target pimps and the parasitic, exploitative conduct in which they engage. The law, however, punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes and those who could increase the safety and security of prostitutes, for example, legitimate drivers, managers, or bodyguards. It also includes anyone involved in business with a prostitute, such as accountants or receptionists. In these ways, the law includes some conduct that bears no relation to its purpose of preventing the exploitation of prostitutes. The living on the avails provision is consequently overbroad. Third, the purpose of the communicating prohibition in section 213 is not to eliminate street prostitution for its own sake, but to take prostitution off the streets and out of public view in order to prevent the nuisances that street prostitution can cause. The provision’s negative impact on the safety and lives of street prostitutes, who are prevented by the communicating prohibition from screening potential clients for intoxication and propensity to violence, is a grossly disproportionate response to the possibility of nuisance caused by street prostitution.