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PRB 03-30E
Prepared by:
Laura Barnett
Law and Government Division
Revised 14 February 2008
PDF (238.80 Kb, 33 pages)
International trafficking in women and children, sexually exploited children in Thailand, female prostitutes murdered in British Columbia: each of these issues has special significance for Canada and its prostitution laws. Canada’s laws attempt to prosecute organized crime and to protect victims of trafficking and other forms of sexual violence, whether at home or by Canadians abroad.
Canada’s multifaceted approach to curbing prostitution reflects a range of domestic and international obligations. Criminal laws are implemented at the federal level to meet international treaty obligations, while each province and municipality has its own means of dealing with prostitution locally, within the powers of its jurisdiction. Although these obligations occasionally clash – as when laws stretch beyond their mandated scope or do not manage to extend far enough – the ultimate result is a fairly comprehensive legislative response to prostitution and its associated social ills.
Attitudes toward prostitution have changed over the last half-century. An evolving understanding of its societal implications is reflected in the development of international treaty law to resolve problems arising from prostitution and in the evolution of legislative remedies on the national level. This section will outline international law pertaining to prostitution and examine Canada’s compliance with that law.
In 1949, members of the international community signed the United Nations (UN) Convention for the Suppression of Traffic in Persons and Exploitation of the Prostitution of Others(1) (1949 Convention), which states in its preamble that “prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community.” Focusing on the problem of prostitution and procurement, article 1 of the Convention states that signatories must criminalize anyone who brings another person into prostitution, even if this is done with that person’s consent. Article 16 states that all parties must agree to take measures for the prevention of prostitution, as well as for the rehabilitation and social adjustment of victims of prostitution, while article 6 strictly prohibits any kind of state regulation of prostitution.
In general terms, this Convention introduced a broad recognition of the issue of prostitution as a human rights concern at the international level. It also represents a strong statement in favour of protecting women exploited by prostitution. However, while the Convention outlaws trafficking, it also strongly condemns all forms of prostitution as a violation of individual dignity and welfare, whether that prostitution is voluntary or not.(2) In 1949, as today, this position could not be reconciled with the law in Canada, where prostitution itself is legal and only offences associated with it are criminalized. The Canadian government was unable to condemn all forms of prostitution in such an absolute manner, and thus never signed the 1949 Convention.
The 1979 UN Convention on the Elimination of All Forms of Discrimination against Women(3) (CEDAW) was the next step in the international legal crusade on the issue of prostitution. This Convention focused on women’s equality rights; article 6 specifies that states party must take all appropriate measures to suppress trafficking in women and the “exploitation of prostitution of women.” Thus, it was now the exploitation of prostitution that was condemned, rather than prostitution itself. CEDAW also established a committee to monitor state compliance with its provisions, and required signatories to submit a country report every four years outlining the measures adopted to eliminate discrimination against women within their borders. Canada ratified CEDAW in January 1982.
In 1989, the UN Convention on the Rights of the Child(4) was established to protect the human dignity and status of children, emphasizing the fundamental rights and best interests of children under 18.(5) 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. This Convention was not aimed directly at children involved in prostitution but, rather, was an attempt to protect them from sexual abuse through inducement, coercion and exploitation. The Convention on the Rights of the Child also established a committee to monitor state compliance with its provisions and required signatories to submit a country report every five years outlining the measures adopted to protect children’s rights within their borders. Canada ratified the Convention in December 1991.
This Convention is complemented by the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography.(6) 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, under criminal law, the offering, obtaining, or providing of a child for child prostitution.(7) Thus, this Protocol explicitly outlaws any form of child prostitution while again targeting, rather than the child, the people perpetrating the prostitution. The Committee on the Rights of the Child also monitors state compliance with the Optional Protocol, requiring signatories to include information regarding their implementation of the Optional Protocol with their Convention country reports. Canada ratified the Protocol in September 2005.
Focusing on women’s rights, in 1995 the Fourth World Conference on Women resulted in the Beijing Declaration and Platform for Action.(8) Paragraph 113(b) of this document highlighted the fact that forced prostitution is a form of violence against women, omitting the reference to voluntary prostitution that had characterized the 1949 Convention. The Declaration outlined its strategic objective of eliminating trafficking in women and assisting victims of violence arising from prostitution and trafficking.(9) Signatories were called upon to support UN efforts to prevent and eradicate child prostitution, and to enact and enforce legislation to protect girls from all forms of violence, including child prostitution.(10) The Declaration recognized the element of choice involved in adult prostitution, focusing its attention on forced prostitution and child prostitution.(11) The goal was to protect women from violence and to eradicate child prostitution. Prostitution as a whole was not the object. Canada committed itself to the Beijing Platform in September 1995.
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.(12) 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. In essence, child prostitution, whether voluntary or not, was established as a fundamental violation of international law. The Convention does not target the child, but the individual who used, procured, or offered the child. Canada ratified this Convention in June 2000.
Finally, the international community 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 Crime,(13) included the exploitation of the prostitution of others in its definition of “trafficking in persons,”(14) and article 5 called upon states party to criminalize such trafficking. In this way, trafficking in human beings, which is integrally linked to the exploitation of the prostitution of others, was forcefully condemned in international law. Canada ratified the Protocol in May 2002.
Among these important conventions, Canada refused to ratify the 1949 Convention because that document condemned all forms of prostitution, while prostitution itself was, and still is, legal in Canada. By ratifying the treaty, Canada would have found itself in breach of the Convention’s stated goals and values.(15) However, international law and norms on prostitution have changed since that post-war document was drafted. Today, international conventions avoid condemning all forms of adult prostitution in order to focus attention instead on criminalizing the exploitation of women through trafficking and forced prostitution. All forms of child prostitution, however, continue to be condemned. States are urged to punish those who exploit women and children, and to treat prostitutes as victims of crime. These are the obligations to which Canada has committed itself (although it has yet to ratify the final Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography), and they are reflected in Canadian law.
Parliament has primary jurisdiction over prostitution-related concerns in Canada through its criminal law power. Federal jurisdiction over the criminal law is derived from s. 91(27) of the Constitution Act, 1867, which states that the powers of Parliament include: “[t]he Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.”
Prostitution-related offences are contained primarily within the Criminal Code. Sections 210 to 213 of the Code outline offences related to keeping or using common bawdy-houses, transporting a person to a bawdy-house, procuring, and prostitution. Essentially, although consensual sex between two adults for consideration is not in itself punishable in law, other events surrounding the act of prostitution are prohibited. The interpretation and application of each of these provisions will be dealt with in turn.
Section 210 of the Criminal Code contains the bawdy-house offence:
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
- is an inmate of a common bawdy-house,
- is found, without lawful excuse, in a common bawdy-house, or
- 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.(17)
Section 197(1) defines the relevant terms. “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 practise 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,(18) and the premises are controlled or managed by prostitutes or individuals with a right or interest in that space.(19) Further, the test used to determine whether an act is indecent is a community standard of tolerance.(20) Within this framework, the interpretation of indecency will depend on context, taking into account 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.(21) For example, if the room is private, or if there is no actual physical contact between a client and an entertainer, then an act is less likely to be labelled “indecent.”(22)
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 sexual acts.(23) A prostitute may even be found guilty of keeping a common bawdy-house where he or she has used his or her own residence alone for the purposes of prostitution.(24)
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 at the time of raid.(25) 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 its use for that purpose.(26)
The offence of procurement is contained in s. 212 and carries the toughest penalty for prostitution-related offences under the Criminal Code, with potential imprisonment of up to 14 years for offences relating to minors.
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. However, ss. 212(2) and (2.1) expand this offence for situations dealing with minors. Under s. 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 by imprisonment for up to 14 years, but not less than 5 years, for a person who lives on the avails of prostitution of a minor and who, for the purposes of profit, aids, abets, counsels or compels the minor to engage in prostitution, and who uses, threatens to use or attempts to use violence, intimidation or coercion against the minor. Finally, s. 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 5 years.
Section 212(3) relates to the evidence necessary for a charge under s. 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.
Procurement essentially refers to an act of persuasion. This accordingly excludes situations where the person whose sexual services are being sold is already or subsequently becomes a prostitute of his or her own free will.(27) Procurement encompasses the following situations:
On this last point, there is a rebuttable presumption that a person who lives with a prostitute, is in the habitual company of a prostitute, or lives in a common bawdy-house, lives on the avails of prostitution.(30) 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.(31)
As noted above, the penalty for procurement offences is raised when the prostitute is under 18, creating an additional offence for situations in which the procurer lives on the avails of a child involved in prostitution and uses threats or violence to compel such prostitution.
Most importantly, s. 212(4) states that it is an offence to obtain or to communicate for the purpose of obtaining the sexual services of any person under 18 for consideration. Thus, solicitation of a prostitute who is a minor is always illegal.(32) It is no defence to say that the accused believed the complainant was 18 years old.
Offences related to the act of prostitution itself revolve around the issue of solicitation and the use of public space. These offences pertain to:
s. 213(1) Every person who in a public place or in any place open to public view
(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.
- stops or attempts to stop any motor vehicle,
- impedes the free flow of pedestrian or vehicular traffic or ingress to or egress from premises adjacent to that place, or
- 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.
The actual act of exchanging sexual gratification for consideration is not in itself illegal. However, it is illegal to engage in prostitution or to obtain the sexual services of a prostitute in a public place. This restriction encompasses stopping or attempting to stop a motor vehicle, and communicating or attempting to communicate in any manner for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute.
Section 197(1) defines “public place” as any place to which the public has access as of right or by invitation, whether express or implied. This includes any place that is open to public view, including a car, even one in motion, that is on a public street.(33) However, a plainclothes police officer’s car is not considered a public place.(34)
The Supreme Court of Canada has upheld the constitutional validity of s. 213(1)(c). The Court held that although s. 213(1)(c) does violate freedom of expression as guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms, this is a reasonable limit under s. 1, given Parliament’s objective of eliminating street solicitation and the social nuisance it creates.(35) As well, the Court has found that the provision violates neither the Charter’s s. 7 guarantee of life, liberty and security of the person, nor the s. 2(d) freedom of association.(36)
Section 7(4.1) of the Criminal Code extends the territorial reach of Canadian criminal law for 11 sexual and sex-related offences against minors in order to include sex tourism by Canadians within its scope:
s. 7(4.1) Notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission that if committed in Canada would be an offence against section 151, 152, 153, 155 or 159, subsection 160(2) or (3), section 163.1, 170, 171 or 173 or subsection 212(4) shall be deemed to commit that act or omission in Canada if the person who commits the act or omission is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act.
Given that these offences deal with sex offences against minors, consideration for sexual services is not an issue under s. 7(4.1); rather, the offence must simply be committed outside Canada by a Canadian citizen or permanent resident, and the act or omission must be an offence under the specified sections if committed in Canada. The consent of the Attorney General of Canada is required for prosecution under this section.
For a discussion of Canadian legislation dealing with trafficking in persons for the purposes of sexual exploitation, please see Laura Barnett, Trafficking in Persons, PRB 06-24E, Parliamentary Information and Research Service, Library of Parliament, Ottawa, 26 June 2007.
In response to its international commitments, the federal government appears to be living up to its obligations through the Criminal Code and the IRPA. Although prostitution as a profession is not criminal, anything that makes the act of prostitution harmful to either the prostitute or the public is penalized. This attitude reflects the global movement toward protecting victims’ rights in international law and a recognition that prostitutes can be victims; thus, rather than criminalizing prostitutes, the law aims to ensure that their rights as victims are protected. The Criminal Code accordingly focuses its major penalties on procurement, and targets prostitution only when it relates to minors or presents a harm to the public.
Certainly s. 212(4) makes it abundantly clear that Canadian law has shifted toward treating children involved in prostitution as victims. Soliciting a minor, whether in an exploitative manner or not, is severely penalized under the Criminal Code. Procedural safeguards for juvenile witnesses appearing in prostitution-related proceedings have also been implemented. Minors can sometimes testify from outside the courtroom, from behind a screen, or on video; publication bans can also be issued in prostitution-related cases to protect the identity of complainants or witnesses under 18. As a signatory to the Convention on the Rights of the Child, Canada has an obligation to adopt national and international measures to protect children from sexual exploitation, but it is not required to criminalize the conduct of Canadians purchasing the sexual services of juveniles who reside outside the country.(37) Nonetheless, s. 7(4.1) of the Criminal Code responds to this issue. Section 7(4.1), along with other Criminal Code measures aimed at protecting children in prostitution, has received approval from the Committee on the Rights of the Child.(38)
Unlike Parliament, which has jurisdiction over criminal law matters through s. 91(27) of the Constitution Act, 1867, the provinces have no direct jurisdiction in relation to the criminal law on prostitution within each province. However, some of the provincial powers laid out in s. 92 of the Constitution Act provide scope for dealing with prostitution without any need to encroach on the federal criminal jurisdiction.
Exclusive Powers of Provincial Legislatures
s. 92(13) Property and Civil Rights in the Province
(14) The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.
(15) The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section.
(16) Generally all Matters of a merely local or private nature in the Province.
Although the provinces have no jurisdiction over the law on criminal matters, they do control the enforcement of that law. Courts also sometimes recognize a legitimate overlap between federal and provincial criminal jurisdiction, thus validating provincial legislation that deals with criminal issues in particular situations.(39) Essentially, legislation that merely regulates morality and criminal conduct may be left in provincial hands, but legislation that creates an actual prohibition akin to criminal law must fall under federal jurisdiction. The harsher the penalty becomes, the more such provincial legislation would trespass on federal jurisdiction.(40)
Provinces have attempted to tackle the prostitution question from a number of angles in recent years, most often through legislation on highways and traffic, proceeds of crime, community safety, and child protection. In the mid-1980s, however, before many such measures were implemented, some provinces also tried using injunctions to deal with prostitution.
Injunctions against public nuisances are one way for a province to try tackling prostitution without conflicting with criminal law. The Attorney General, as the guardian of public interest, may bring an injunction against a public nuisance in order to restrict prostitutes importuning pedestrians within a specified area.(41)
In British Columbia (Attorney General) v. Couillard,(42) the British Columbia Attorney General applied for an injunction to restrain prostitution-related activity in the West End of Vancouver as a common law public nuisance. The BC Supreme Court granted an interim injunction that forbade prostitutes from publicly offering or appearing to offer themselves, directly or indirectly, for the purposes of prostitution in the West End. The injunction also restrained other activities in relation to trespass and disturbance of the peace by prostitutes. However, this injunction was ultimately rescinded by request of the Attorney General, and because of an amendment to the Criminal Code prostitution law enacted in 1985 a permanent injunction was never granted.(43)
In Nova Scotia v. Beaver et al.,(44) the Nova Scotia Attorney General applied for an injunction to restrain the public nuisance occasioned by prostitutes in downtown Halifax. In this case, the Nova Scotia Court of Appeal refused the application on the basis that the province was trying to use civil procedure to control a criminal matter, which came under federal jurisdiction.
Such injunctions may not be a good long-term solution for provinces, particularly given the mixed response from the courts and difficulties of enforcement.(45) The most likely effect of injunctions in such situations is that the prostitutes will simply move into another neighbourhood. After Couillard, the targeted prostitutes moved from the commercial district into a residential and school district.
From a legal perspective, the Nova Scotia Court of Appeal in Beaver stated that it is up to the trial judge’s discretion whether an injunction of this kind should be granted. The court must consider whether the injunction “is really necessary in light of other procedures available to accomplish the same end. [The judge] should consider, as well, the damages of eliminating criminal conduct without the usual safeguards of criminal procedure available to an accused … . Only in very exceptional cases where by reason of lack of time or otherwise no other suitable remedy is available should such an injunction be granted to prevent the commission of a crime.”(46) Certainly, using equity as a supplement to criminal law is somewhat problematic, although it may be easier to grant similar injunctions in cases like Couillard, where the issue is interpreted in the property law context as a form of zoning to protect property interests, rather than as an attempt to overlap with federal jurisdiction over criminal matters.(47)
Using the powers set out in s. 92(13) of the Constitution Act, 1867, several provinces have amended their highway and traffic legislation to allow police to seize, impound and sell vehicles used in picking up prostitutes on the street. In Alberta, Manitoba and Saskatchewan, legislation allows police to seize and impound vehicles used in prostitution-related offences.(48) Vehicles will be returned if the accused is either acquitted of the prostitution-related offence or attends a “john school” to learn about the ramifications of prostitution and its effect on its victims.(49) However, in Manitoba and Saskatchewan, only first-time offenders are offered the option of attending john school, and in Saskatchewan those charged with offences under ss. 212(2.1) or 212(4) of the Criminal Code, repeat offenders, and offenders with serious criminal records are also precluded from this alternative.(50) Further, in Manitoba and Saskatchewan, if an accused does not complete or fully comply with the john school conditions, his or her driver’s licence is suspended.(51) Finally, in all three provinces, if the accused is convicted of the prostitution-related offence, he or she will forfeit the vehicle or deposit to the police.(52) In addition to providing for the impounding of vehicles, s. 270 of Saskatchewan’s Traffic Safety Act also specifies penalties for those who repeatedly drive or park their car in areas frequented by prostitutes.
Although the power to impound vehicles for prostitution-related offences has not been contested as a violation of the federal jurisdiction over criminal law, proportionality concerns have been raised, on the argument that such drastic measures should be saved for serious driving offences posing a real danger to the public or involving a clear lack of fitness to drive.(53) There is also some concern that impounding a car, only for it to be returned if the accused is acquitted, effectively nullifies the presumption of innocence inherent in Canada’s criminal justice system.(54) Certainly, Alberta’s law was proclaimed in force only after significant Charter compliance scrutiny on the part of the government. However, alternative arguments point out that vehicle seizure could prove an effective means of getting prostitutes off the streets, provided that the threat of such punishment is backed up with increased police enforcement.(55)
With regard to the issue of overlapping jurisdictions, although a province cannot enact street traffic legislation with the sole purpose of controlling prostitution,(56) this does not appear to be the case with the vehicle impoundment legislation. The clash of jurisdictions argument does not seem to have been raised seriously in this context.
Manitoba, Yukon, Nova Scotia and Saskatchewan have adopted another approach to dealing with prostitution at the provincial/territorial level, with their respective Safer Communities and Neighbourhoods Acts.(57) These laws allow for the closure of buildings and properties in response to safety and prostitution-related concerns. A person may make a complaint to the Director of Public Safety, stating his or her belief that a property is being habitually used for activities related to prostitution.(58) After investigation, the Director can attempt to resolve the matter through informal action (such as a letter) or may ask the court to make a community safety order.(59) In the latter case, if the court is satisfied that circumstances give rise to a reasonable inference that the property is being used for prostitution-related activities and that the community is adversely affected by those activities, it may make an order prohibiting anyone from causing or permitting those prostitution-related activities, and requiring the person in charge of the property to do everything reasonably possible to prevent those activities. In addition, the court can make an order to vacate the property, to terminate a lease agreement, or to temporarily close the property.(60) Thus the province, through the court, effectively has the power to close down properties relating to prostitution that cause a harm to local communities. Newfoundland has a similar law, which has yet to be proclaimed in force.
Perhaps the single most controversial method of regulating street prostitution used by provinces has been through child protection legislation. A number of tactics have been employed across Canada, from simply including prostitution among the criteria for classifying a child as in need of protection, to “secure care” legislation that authorizes the involuntary detention of minors engaged in prostitution.
Child welfare legislation is the most basic and the least controversial example of provinces asserting jurisdiction over the problem of children exploited through prostitution in this manner. Protection legislation in many provinces clearly states that welfare authorities have the power to remove children at risk of prostitution and to place them into the child welfare system. British Columbia, Alberta, Saskatchewan, and Prince Edward Island(61) explicitly refer to prostitution, allowing a child to be found in need of protection if the child has been or is likely to be sexually abused or exploited. Such will be the case where a child has been or is likely to be encouraged or coerced into engaging in prostitution,(62) is exposed to prostitution-related activities,(63) or is harmed as a result of prostitution-related activities and the parent has not protected the child.(64) Once such a finding is made, then the child will enter the child welfare system, with the possibility of being apprehended and placed in a foster home.
In addition to these basic provisions, courts in British Columbia and Alberta have the power to issue a restraining order if there are reasonable grounds to believe that a person has encouraged or coerced, or is likely to encourage or coerce, a youth involved in the child welfare system to engage in prostitution.(65) The legislation also adds a term of imprisonment or fine for any person who abuses children through prostitution.(66)
Supplementing its child welfare legislation, Saskatchewan has also implemented the Emergency Protection for Victims of Child Sexual Abuse and Exploitation Act.(67) Under this law, police or social workers who have reasonable grounds to believe that a child has been or is likely to be sexually abused (including involvement in prostitution-related activities) may apply to a Justice of the Peace for an Emergency Intervention Order to keep the alleged offender from contacting or attempting to contact the child victim.(68) The law creates an offence for failure to report sexual abuse or for breach of an Emergency Intervention Order.(69) It also expands police powers to search vehicles and seize evidence of child abuse if an officer has reasonable grounds to believe that there is evidence in the vehicle of child sexual abuse, or if a vehicle is found in an area where a high incidence of child sexual abuse could reasonably be expected.(70)
Few claims have arisen to challenge such child welfare provisions and the consequential provincial power to interfere with the commercial sexual exploitation of children. The provinces have clear jurisdiction over child protection issues and, as a result, some degree of control over exploitation of children through prostitution.
Some provinces, however, have moved beyond relatively standard child welfare legislation and begun to take an even tougher stance on the commercial sexual exploitation of children. In June 1999, provincial and territorial premiers met in Quebec City to affirm their commitment to providing for the safety of children and to recognizing children involved in prostitution as victims of abuse. At this meeting, leaders agreed to begin a review of their child welfare legislation with a view to harmonizing provincial laws with respect to the apprehension and protection of children engaged in prostitution. Since then, a number of provinces have enacted or are in the process of enacting new secure-care legislation, essentially allowing for the involuntary detention of children involved in prostitution.(71) This trend has not gone unnoticed and has led to constitutional challenges as well as to criticism in news media and from legal experts across the country.
Thus far, Alberta is the only province to have fully implemented secure-care legislation. The Protection of Sexually Exploited Children Act(72) allows a police officer, or the Director of Protection of Children Involved in Prostitution, who has reasonable grounds to believe that a child is in need of protection, to apply to the court for an order authorizing the police or the Director to apprehend the child and either return him or her to a parent, or detain the child in a safe house for up to 5 days for assessment and counselling. However, if the police or Director believes that the child’s life or safety is in serious and imminent danger because the child is engaging in or attempting to engage in prostitution, then the police or Director may detain the child without an order from the court.(73) After the initial 5 days of detention, the Director can apply for a maximum of two additional confinement periods of up to 21 days each if he or she believes that the child would benefit from further assessment and counselling.(74) To safeguard the child’s rights, however, the Director must appear before the court within 3 days of the initial apprehension to show why confinement is necessary, and the child must be informed of the time and place of the hearing, the reasons for the hearing, and his or her right to contact a lawyer and to attend the hearing. It is important to note that a child may also obtain these services voluntarily if the Director agrees that the child is in need of protection.(75)
Finally, the legislation enhances provincial powers to penalize those encouraging the exploitation of children through prostitution. The Director may apply for a restraining order if he or she has reasonable grounds to believe that a person has encouraged or is likely to encourage a child involved with the program to engage in prostitution.(76) Section 9 of the legislation also adds a further penalty for pimps and clients who deal with children involved in prostitution, by stating that any person who wilfully causes a child to be in need of protection is guilty of an offence and liable to a fine of not more than $25,000, or to imprisonment for a period of not more than 24 months, or both.
The British Columbia Secure Care Act,(77) which received Royal Assent in July 2000 but has not yet been proclaimed in force, is similar in scope. This legislation provides for the involuntary detention of children involved in prostitution for the purposes of counselling and assessment. The Secure Care Board would examine cases brought by parents, guardians, and the Director of Secure Care, and issue secure care certificates authorizing the detention of children for up to 30 days, with two possible renewals. In emergencies, minors might also be detained for up to 72 hours in a secure care facility without Board approval. Safeguards in this legislation would ensure that involuntary detention is used only when other measures prove inadequate to address the child’s needs and to ensure his or her safety. Children subject to a hearing would be notified of their rights, and any matter decided by the Secure Care Board in the child’s absence could be reconsidered with the child’s input.
In Ontario, the 2002 Rescuing Children from Sexual Exploitation Act(78) has not yet been proclaimed into force. This legislation would allow police, with or without a warrant, to detain in a safe house, for counselling and assessment, any child they believe to be engaging or attempting to engage in prostitution-related activities. The case would come before a judge within the first 24 hours of detention, and the court could order the child held for 5 days. At the end of those 5 days, the court could order that the child be held for up to 30 days from the time of initial confinement, or be sent back to his or her parents. In addition to this judicial review of the initial detention, safeguards in the Ontario legislation would ensure that children subject to a hearing are notified of their rights.
By the end of 2003 in Alberta, the only province where secure care legislation has been fully implemented, more than 700 children had been apprehended since the law came into force in 2000, although the numbers began to drop as early as 2002, perhaps indicating a drop in enforcement or in effectiveness.(79) Since then, numerous concerns have been raised, challenging the legislation as a violation of children’s human rights as protected by the Charter. The most prominent among these was played out in Alberta v. K.B.,(80) a decision by the Alberta Court of Queen’s Bench in December 2000. This case involved two girls detained without an order under s. 2(9) of the PCIPA, and led to a challenge to the legislation as a violation of sections 7 (right to life, liberty, and security of the person) and 9 (protection from arbitrary detention) of the Charter.
The Court of Queen’s Bench upheld the legislation. Rooke J held that s. 7 was not violated: although the girls were deprived of their liberty when they were confined to the safe house, this violation was in accordance with the principles of fundamental justice in the child welfare context. When dealing with child welfare issues, the Court said, the Charter allows for some degree of restraint on the liberty rights of both a parent and a child. Not only does the s. 2(9) provision ensure that there is good reason for detention without a warrant, the 72-hour time frame(81) allowed for detention also does not violate any constitutional norms. Rooke J stated that children such as these need help, which the Alberta legislation provides without exceeding s. 7 constitutional norms. For essentially the same reasons, the court found no violation of s. 9, holding that s. 2(9) ensures that officers have reasonable and probable grounds for their actions, and that the 72-hour time frame was neither arbitrary nor irrational, and in fact provided needed help to children on the streets.
Rooke J also found that s. 1 of the Charter was satisfied. The Alberta legislation was based on the pressing and substantial objective of stemming harm to a vulnerable group. Further, apprehension, confinement and assessment are rationally connected to protecting children from sexual abuse, and the 72-hour time frame for counselling and assessment made sense within this context. Limiting the time frame to 72 hours is not a major impairment of rights when balanced against the clear need for protection. In the end, the legislation passed the Charter test of proportionality, as the objective of protecting children from sexual abuse by far outweighs the 72-hour limit, which is subject to judicial scrutiny.
Although the Court ultimately upheld the constitutionality of the Alberta law, the Alberta government had already reacted to a lower court ruling in the same case, which had held that the law was unconstitutional. To deal with this challenge, the government amended the Act to include the safeguards for children’s legal rights mentioned above. (The Director must appear before the court within 3 days of the initial apprehension, and the child must be informed of the time and place of the hearing, the reasons for the hearing, and his or her right to contact a lawyer and to attend the hearing.) The amendment also included measures to provide children with additional care and support. Chief among these was the provision increasing the time that a child may be detained from 72 hours to 5 days.
Although this amendment provides further support for detained children, extending the initial time of detention from 3 to 5 days also potentially strengthens the challenge to the legislation under sections 7 and 9 of the Charter. It is unclear how courts will deal with challenges to this extended time frame. A further concern raised is that the detention, against their will, of children involved in prostitution does not necessarily address the real problem of their involvement in prostitution. If the provinces want to help children, then providing practical support such as housing and social assistance may be a more effective remedy, while involuntary detention could further alienate such children from society, driving them deeper into the world of organized crime and prostitution.(82)
Also operating within this provincial framework, municipalities have independent power to control prostitution through municipal by-laws and other local measures. Because municipalities receive their authority from the provincial legislature, the same restrictions that apply to provincial powers to regulate prostitution in terms of overlap with federal criminal jurisdiction also apply at the local level. Accordingly, municipalities cannot create outright prohibitions of prostitution that would be akin to criminal legislation.
Local police are in fact more likely to use municipal by-laws to regulate prostitution than to lay charges under the Criminal Code, given that it is easier to issue tickets for an infraction of a by-law than to collect evidence for a criminal charge. By-laws can also be more easily moulded to fit a local context.(83)
In the early 1980s, a number of Canadian cities passed by-laws regulating use of the streets, in a move that worked to effectively forbid street solicitation. Montréal and Calgary were prime examples of this trend. In 1980 and 1981 they enacted by-laws that essentially forbade the use of streets and other public areas to those engaging in prostitution, under penalty of substantial fines.(84) These by-laws were passed under the municipalities’ power to regulate the use of streets and to restrict activity that encourages criminality.
In reaction to these new laws, two court challenges reached the Supreme Court of Canada. In R. v. Westendorp, the defendant was charged under the Criminal Code with communicating for the purposes of prostitution, and under Calgary’s by-law with being on the street. This by-law had been enacted with the purpose of preventing violence and gatherings on the street. The Supreme Court struck down the by-law as a municipal attempt to enact criminal sanctions – and thus as an infringement of federal jurisdiction. Similar reasoning followed in Goldwax et al v. Montréal (City),(85) when the Supreme Court struck down the Montréal by-law. The impact of these two rulings effectively nullified similar by-laws enacted or proposed in Vancouver, Niagara Falls, Regina, and Halifax.(86)
However, although these two seminal cases have established a general principle ensuring that municipalities do not intrude on federal jurisdiction through by-laws on street use that effectively prohibit street prostitution, a number of municipalities have continued to enact similar by-laws that directly and indirectly affect street solicitation. In 1983, Montréal enacted a by-law to forbid selling services on city streets without a permit. As the city did not issue permits for soliciting, prostitution was essentially forbidden. This by-law has been upheld by the Quebec Superior Court. In 2000, Winnipeg enacted a by-law outlawing “obstructive solicitation,” thus prohibiting anyone from impeding pedestrian traffic in the course of solicitation, from harassing a pedestrian in the course of solicitation, or from soliciting in groups of three or more people. In 2002, Surrey, BC, enacted a by-law giving police officers the power to issue tickets to anyone engaging in prostitution, whether client or prostitute, within 300 metres of a school or 20 metres of a residence. This by-law also makes it illegal for clients in motor vehicles or prostitutes to solicit on public roads.(87) Finally, police in most municipalities commonly use anti-jaywalking and loitering laws to hand out tickets in areas frequented by prostitutes.(88)
In 1993, the Supreme Court of Canada handed down a seminal ruling interpreting the community standard of tolerance test used to determine “indecent acts.” R. v. Tremblay allowed private dances in adult entertainment parlours, provided that there was no physical contact between the patron and dancer. In reaction, in August 1995, the City of Toronto passed a municipal by-law prohibiting physical contact between patrons and dancers; establishments risked a fine of $50,000 and licence revocation for violation. The Ontario Court of Appeal upheld the by-law in Ontario Adult Entertainment Bar Association v. Metropolitan Toronto (Municipality),(89) stating that it was enacted for valid provincial objectives relating to business regulation, including health, safety, and crime prevention. Accordingly, the by-law did not conflict with the Criminal Code or with federal jurisdiction over criminal matters. Further, the court held that the by-law did not violate dancers’ freedom of expression under s. 2(b) of the Charter because close-contact dancing does not amount to a constitutionally protected right. The ultimate result of this case was to leave municipalities with the power to regulate aspects of prostitution-related activities, such as placing limits on exotic dances, despite the federal prerogative over criminal law.
In addition to regulating the limits of prostitution-related activities, municipalities exercise broad power over the licensing of such activities. Cities such as Calgary, Edmonton, Kitchener, Red Deer, Toronto, Victoria, Vancouver, Windsor, and Winnipeg have enacted by-laws that require dating and escort services, exotic entertainers, massage parlours, and others to obtain business licences like other business establishments. Although such services are nominally not prostitution-related, it is widely believed that they are often a front for or segue into prostitution itself. To obtain a licence, such establishments must comply with various conditions, including requirements pertaining to location, hours of operation, advertising, certification, minimum age, and police screening of escorts.(90) Licensing by-laws are generally held to be within municipal jurisdiction, because business licences are of general application and are not specifically targeted as a prohibition of prostitution or as a regulation of public morality.(91)
Nonetheless, a number of challenges have questioned the validity of certain by-laws in their application to prostitution-related activities. In 1988, the BC Supreme Court struck down a portion of the Vancouver licensing by-law, finding that the requirement for an escort service to provide records of all escort requests, with names and fee included, stretched beyond the city’s power to regulate licensed businesses.(92) In 1999, the Ontario Superior Court struck down a portion of a Niagara Falls licensing by-law, finding that the lottery scheme used to award body-rub licences unduly limited competition, essentially creating an illegal monopoly.(93) In 2000, the Ontario Court of Appeal struck down a Richmond Hill licensing by-law, finding that the law’s interaction with zoning restrictions in the town essentially created a full prohibition of adult entertainment and was thus outside municipal jurisdiction.(94) In 2002, the Manitoba Court of Queen’s Bench acquitted a Winnipeg business owner of carrying on a dating and escort service without a licence. The court held that the services offered were not those of an escort service but were clearly prostitution services – “no licence of any sort is available to carry on prostitution”; rather, it is the Criminal Code that should apply.(95) In 2006, the Alberta Court of Queen’s Bench acquitted a Calgary man of procurement charges, holding that the licence issued to him to operate an escort agency was vague and could have been interpreted as a licence to sell sex. The city’s response was to drastically reduce its licensing fees for escort agencies and to revamp its escort by-laws. The new by-law requires applicants to sign a declaration stating that receiving a licence does not absolve him or her from criminal charges, and increases fees for non-compliance. Finally, in 2007, the Ontario Court of Appeal struck down part of a Windsor by-law setting out licensing fees for those working in adult entertainment parlours. The court held that it was discriminatory to charge a higher fee in excess of the costs directly related to the administration and enforcement of the by-law.(96)
Concern has also been expressed that some licensing fees may be set so high as to make licences unattainable. Some even claim that the concept of collecting licensing fees for essentially prostitution-related activities could make the government guilty of living off the avails of prostitution.(97) In 2002, an Edmonton prostitute launched a civil suit to challenge overcharging for licensing fees. She demanded that the city lower the licensing fee for independent escorts on the basis that the City was effectively living off the avails of prostitution. In April 2003, the Alberta Court of Queen’s Bench rejected this claim.(98)
Zoning by-laws are another means of restricting prostitution. Cities such as Niagara Falls, Vaughan, Moncton, and Saint John have zoning by-laws to control the location of body-rub parlours and adult entertainment facilities in certain areas of the city.(99) Like restrictions on licensing, zoning is generally considered to be within municipal jurisdiction, provided that it does not create a general prohibition of adult entertainment or is not actually regulating public morality, but merely limits it to certain areas.(100)
Essentially, by-laws facilitate policing of prostitution and are a mechanism for municipalities to have some control over the issue without violating federal jurisdiction.(101) However, municipalities walk a fine line between federal and municipal/provincial jurisdiction and must be careful not to take any measures that might deal with actual prostitution.(102) Part of this balancing act consists in maintaining the illusion that escort services and massage and adult entertainment parlours are not fronts for prostitution-related activities. Provided that municipal by-laws do not actually prohibit prostitution, they are generally upheld by the courts.
“John-shaming” is another technique that is often used locally to combat prostitution. Without resorting to actual laws that could be open to challenge, john-shaming works as a form of public pressure to deter those who engage in prostitution. Examples of john-shaming include the publication in local newspapers of the names of clients charged with street prostitution offences.(103) In Vancouver, Ottawa and Saint John, police send letters to the homes of motorists seen to frequent known areas of prostitution. In Winnipeg, for a brief time, police posted on a website photos of cars frequently seen in areas known for prostitution.
However, john-shaming measures do not necessarily lead to a decline in prostitution. Critics argue that such measures may only force prostitutes to move from one area to another, and can lead to family break-up, divorce, and violent confrontations.(104) In Ottawa, after police consultations with the Ontario Information and Privacy Commissioner’s office, a policy was adopted to send john-shaming letters in unmarked envelopes by registered mail.
A number of community-based methods have also been used to combat prostitution at the local level without resorting to legislation. Citizen patrols are one means of deterrence and neighbourhood protection. In 1987, Toronto residents organized “hooker patrols,” in which residents patrolled the streets, photographing clients, shining flashlights in cars, and recording licence numbers for the police. Citizen patrols made up of community volunteers and police have also been implemented in parts of British Columbia and Nova Scotia, standing watch on street corners to force prostitutes and clients out of an area.(105)
Community mediation is another technique. In Vancouver, Crime Prevention Offices and neighbourhood associations approach outreach agencies to mediate problems in the community to ensure that prostitutes stay out of certain areas, maintain certain areas litter-free, and respect certain rules of conduct. However, this is a long-term process that, to work effectively, requires significant initiative on the part of the community. A shorter-term solution is for residents to undertake neighbourhood enhancement measures to ensure that streets and parking lots are well-lit and open to public view in order to discourage prostitution.(106)
Finally, some municipalities have implemented other measures as a deterrent to prostitution. In 1986, Vancouver police established a Prostitution Task Force, involving officers who ambushed and interrogated prostitutes and clients in their various hiding places on public property. The City of Ottawa also implemented a traffic diversion program in the early 1990s to deter automobile traffic in an area frequented by prostitutes. Under this program, police and the community worked in unison to identify and target cars that caused the most congestion by circulating in the neighbourhood. Community members recorded information such as licence plate numbers and the makes and models of the cars considered to be a nuisance. The police then used this information to target frequent visitors in sting operations.(107) Similar “report-a-john” programs have also been established in Edmonton and Moncton. Some cities have established advertising campaigns to combat prostitution. In 2005, Edmonton and Saskatoon unveiled advertising campaigns aimed at dissuading clients of prostitution and educating the public about sexual exploitation.
Given this range of laws, regulations, obligations, and other attempts to control prostitution, it is clear that it is an important issue on many levels. Although the international community is most interested in protecting victims of trafficking and prostitution, local communities highlight the importance of protecting their cities, homes, and children from its side effects. Each level of Canadian government attacks the problem in different ways, according to its priorities and powers. The end result is a broad network of prostitution-related measures that generally complement one another and work to resolve the problem at multiple levels. The federal government is striving to live up to its international obligations, and in large measure has succeeded through criminal law that punishes procurement, trafficking, and the commercial sexual exploitation of children. Nonetheless, trafficking in women and children remains a reality in Canada and a further battle for the government, which must also work to strengthen its social programs to provide protection and a viable future for the victims of such crimes.
Beyond federal legislation, provinces and municipalities are also making full use of their powers to deal with prostitution. Although those powers provide strong means for dealing with various aspects of prostitution, they are not immune to challenge. A number of the measures in place have been criticized as unconstitutional, although only a few have actually been brought before the courts. The dilemma is that there are so many different approaches to dealing with prostitution, and the problem is so varied throughout the country, that there will always be a perception that federal law is inadequate to deal with the issue. At the same time, however, attempts by provincial and municipal jurisdictions to regulate prostitution locally will continue to cater to issue-specific areas or area-specific issues, and are thus unable to solve the problem on a broader scale.