the protection of prostitutes from exploitation by third
parties, and
the protection of the public from adverse effects of/exposure to prostitution. [2]

This paper will examine each of these regimes in turn and will show how each fails to achieve the protection of either public or prostitutes because of the perceived need to segregate prostitutes from the rest of the community (in other words the perceived need to make prostitution invisible). Specifically, the focus of this paper will be on Canada, how its approach to prostitution is defective, what alternative reforms are available, which of these would be most effective and how they might best be implemented. [3]

[Table of Contents]

I. Canada and Criminalization

Under Criminalization all forms of prostitution are criminalized. This approach is motivated by the twin beliefs that prostitution has no intrinsic social value and can be completely eradicated through vigorous and uncompromising enforcement of the criminal law. [4] Canada practises a hybrid form of criminalization in that although prostitution itself is theoretically legal in Canada, practising it is not. The Criminal Code prohibits all forms of public communication for the purpose of prostitution (s. 213 [5] ), and most forms of indoor prostitution as well: owning, running, transporting or occupying bawdy house (ss. 210 [6] and 211 [7] ), procuring or living on the avails of prostitution (s. 212 [8] ).

While the trend in other western countries has been to move away from criminal sanctions for prostitution, Canada has done the reverse, legislating a tougher anti-communication law (s. 213) in 1986. More recently, various government committees and task forces have called for even tougher laws as well as more vigorous enforcement of the current legislation. In 1990 the Standing Committee on Justice recommended yet more strengthening of the laws including fingerprinting and photographing prostitutes [9] and the removal of drivers licenses for those charged with communication for the purpose of prostitution. [10]

The most recent exploration of prostitution by the government was the Working Group of Attorneys General Officials on Gender Equality in the Canadian Justice System, chaired by Bertha Wilson. [11] In general the background papers submitted avoided recommending either repealing or strengthening the laws, choosing instead to focus on enforcement. Equal application of the communication law (s. 213) was cited as a concern, because prostitutes had both a higher arrest and sentencing rates than their customers (s. 213 is meant to apply equally to both prostitutes and their clients). [12] As well, programs were recommended to educate police and court officials on the myths and stereotypes surrounding prostitution and the resulting barriers to access to the justice system. It was hoped this would both improve prostitutes' access to the justice system and help ameliorate the prevalence of violence against prostitutes perpetrated by police. [13]

Both the recommendations of the Standing Committee on Justice, and the Wilson Task Force, were accompanied by vague suggestions regarding job retraining and counselling programs for prostitutes [14] (in recognition of the fact that prostitution is often a choice made out of economic necessity). [15] Yet the common belief of both groups seems to be that prostitution must be "solved" through criminal sanctions rather than economic measures. However, a close look at criminalization shows it to be by its very nature self-defeating. Unfortunately the very elements which make it self-defeating also cause it to be self perpetuating, thereby precluding all chance of meaningful reform.

[Table of Contents]

I: 1. The Failure of Criminalization

I: 1a. How Criminalization Fails to Protect Prostitutes from Harm

Section 213 (communicating for the purpose of prostitution) while meant to focus solely on "protecting" the public from the "negative" effects of prostitution has the unintended effect of endangering prostitutes, thereby defeating the goals of ss. 210-212.

John Lowman has divided prostitution laws into two segments: those which are meant to protect prostitutes from third parties (e.g. those laws dealing with procuring, living on the avails of prostitution (s. 212), running, owning or transporting someone to a bawdy house, ss. 210-212 of the Criminal Code) and those laws meant to protect the public from the "nuisance" effects of prostitution (e.g. the law against public solicitation, s. 213 of the Criminal Code). [16] Unfortunately, however neatly we might categorize the legislation, it does not change the fact that the criminal provisions do not act in isolation from each other. Section 213, while meant to focus solely on "protecting" the public has the unintended affect of endangering prostitutes, thereby defeating the goals of ss. 210-212.

In general, s. 213 has tended to increase the vulnerability of prostitutes. First of all, prostitutes' working conditions are worsened because fear of arrest places the emphasis on avoiding detection rather than on health and safety. This is particularly true regarding s. 213 which gives a very broad definition of both communicating [17] and public place [18]. This makes it extremely easy to be charged and convicted of communicating for the purpose of prostitution. The National Association of Women and the Law NAWL has reported that s. 213 victimizes women by increasing the health and safety risks associated with street prostitution because it forces prostitutes to work in dark areas where they are more vulnerable to attack. [19] As well, because of the need to avoid detection street prostitutes have little time to consider their options when dealing with a customer. They must act quickly and often this means accepting a date before they have had time to "feel him out," again increasing the risk of assault. [20] This also means prostitutes have less control over the date itself, often being put into the position of having sexual interaction without a condom. [21] The prostitute therefore is faced with the potential double whammy of a physical assault and/or a viral one.

The consequences of criminalizing prostitution are not limited to physical harm however. Because s. 213 is so easy to enforce it is almost impossible to practice street prostitution without getting a criminal record. [22] Since a criminal record makes it extremely difficult to obtain any form of legal employment, it ensures that a prostitute will have few economic options other than prostitution. Given these unassailable facts, it seems odd that the Standing Committee and the Wilson Task Force would even bother to recommend counselling and job training programs for prostitutes since any skills the prostitute might learn will be useless until they can clear their record. [23]

A criminal record has psychological consequences as well. Studies have shown that the entire arrest process is in itself humiliating and degrading. Prostitutes queried on the subject have said that being arrested and their subsequent treatment at the hands of the law did far more damage to their self esteem than did the actual act of prostitution. [24] The message given the prostitute by society and reenforced by criminalization is that they are utterly worthless. While studies in both Canada and the United States have found that (contrary to popular belief) the majority of prostitutes do not use drugs, [25] there is the concern that the economic and psychological impact of an arrest record could increase alcohol or drug dependency which already exists. [26] This in turn would further prohibit a prostitute from leaving the life since she/he will require greater sums of money to support their drug habit. [27]

Contrary to the beliefs of the Wilson Task Force, none of these problems would be addressed by a greater arrest and conviction rate for customers. [28] If anything, prostitutes would have a harder time since they would be driven further underground with their clientele. As s. 213 has shown, where a prostitute's chief concern must be to avoid arrest (and this includes arrests of either prostitutes or their clients) their control over their working conditions and as a result their own safety will be forfeit. Such formal equality will be cold comfort to the sex workers who have been fighting for the kind of societal acceptance their clients have enjoyed for years. As one activist put it equal applications of the laws has equalised women down by taking away some of the rights men had which women were fighting to get: instead of prostitute women not being arrested for soliciting men, men are being arrested for soliciting women. [29]

Sections 210-212, although intended to protect prostitutes from exploitation actually guarantee that exploitation will take place.

If s. 213 has been harmful, ss. 210 (running, owning or inhabiting a bawdy house), 211 (transporting a person to a bawdy house) & 212 (procuring for the purposes of prostitution and living on the avails of prostitution) have been no less so. This at first seems incomprehensible, since s. 212 in particular was created solely to protect prostitutes from harm. [30] However ss. 210-212 do not differentiate between exploitive and non exploitive situations for prostitutes. Essentially it is the involvement of the prostitute which activates the criminal sanction. For instance, as the laws are currently applied, prostitutes seeking to avoid the attentions of the police by moving indoors are subject to the bawdy house laws. [31] This includes women working by themselves out of their residences [32], or from rented hotel rooms. [33] In fact the majority of charges laid re s. 210 are against independent "cottage" industries. [34] As well, should an individual be convicted of using rented accommodations as a bawdy house s. 210(3) commands the court to send notice of this to their landlord. In the event that the individual is charged and convicted a second time of the same offence, under s. 210(4), the landlord can also be charged and convicted of owning a bawdy house. This guarantees that convicted prostitutes will be thrown out of their homes at first notice.

The prostitute is also effectively isolated from other prostitutes in that two prostitutes operating in tandem run the risk of being charged with the more serious felony crimes of operating a brothel or living on the avails. [35] The Criminal law system isolates prostitutes from their family, both by exacerbating the stigma of prostitution with a criminal record, and because contact with the prostitute can lead to Criminal Charges -- living with a prostitute can result in "living on the avails" charges [36], and a history of prostitution can result in the loss of child custody. [37]

Studies in the United States, where "pimps" are considered by officials and prostitutes alike to be a significant problem, show that the combination of criminal laws against both the prostitute and those who associate with her have increased, not decreased the likelihood that the only relationships she will be able to have are with those who see her as an easy source of money. [38] The legal and social stigma attached to any man in a relationship with a prostitute, police harassment and the potential fines and jail term, effectively precludes a relationship with anyone except the archetypal pimp. The law acts as a self-fulfilling prophecy. While the stereotypical pimp is a rarity in Canada [39], the government's insistence on following the U.S. model may help to change this fact.

[Table of Contents]

I: 1b. How Criminalization Fails to Protect
the Public From the "Effects" of Prostitution

Section 213 cannot protect the public from the supposed negative side effects of prostitution (disease, crime and urban blight) because prostitution is not in fact the cause.

s. 213 goes beyond general nuisance laws in that it allows a prostitute to be charged whether or not they are creating a public disturbance. [40] The judicial interpretation of s. 213 has also made it very easy to enforce. An officer may make an arrest based solely on an exchange between the officer and the prostitute targeted. While most undercover police will try to get the prostitute to be the one to mention price and "menu" first, charges have been laid when the prostitute has merely nodded in answer to questions regarding services and price. The emphasis of the new law has moved from evidence of public annoyance to evidence of intent to communicate for the purposes of prostitution. [41] Presumably then, the idea is that the very existence of prostitution, regardless of its public manifestation, is a criminal offence.

Why is it so crucial to keep prostitutes away from the public, if they are not causing a noticeable disturbance? It is believed prostitutes, by their presence alone, bring crime, drugs and urban decay in their wake. This is why residents' groups with any clout insist on prostitutes being removed from their area. [42] However, recent studies have found no direct link between prostitution and any of these concerns. For instance a 1977 study by Barbara Millman showed that the connection between urban decay, crime and prostitution resulted because prostitution was only allowed to exist in areas the city had already written off. [43] By way of proof, Millman noted the effects of regulation in Boston, which quickly transformed an already borderline area into the "Combat Zone". Millman found that the "anything goes" attitude of the police allowed crime to get out of hand. [44] Another study of the "Combat Zone" compared Boston to Holland where by contrast, when small brothels are integrated into already healthy neighbourhoods, such a decline does not happen. [45]

A more recent concern is that prostitutes are prime carriers of AIDS. However again studies have shown that prostitutes are actually lower risk HIV carriers than their customers. [46] In general, studies tend to point to needle use, not prostitution as the main source of AIDS transmission. [47] This makes sense when one considers earlier studies on the general transmission of venereal disease have shown prostitutes to be very low risk [48], bearing out the claims of prostitutes' rights groups that sex workers (unlike their clients) are very conscientious regarding condom use and other safety precautions. [49] Given all this, s. 213 would seem to have little practical purpose other than to harass prostitutes.

The expense of enforcing prostitution laws drains resources for the prevention of other more serious crimes.

Not only is criminalization an ineffectual method of "protecting" the public from the dangers of prostitution, it also inhibits the ability of law enforcement officials generally to protect the public from other, arguably more serious forms of crime. For example, Metro Toronto taxpayers spend approximately 40 cents of every tax dollar on policing. Of the various units in the Metro Toronto Police force, the second most expensive is the Morality Squad, which deals with drug and prostitution offenses. There are 96 officers in the unit, and in 1993, its portion of the budget came to $7.9 million, with $1.8 million, or 23% of the total going to pay the salaries of those in the unit assigned to prostitution. [50] By comparison, the Metro sexual assault squad, which is made up of only 15 officers, receives only $1.4 million. This, in spite of the fact that one half of all Canadian women have experienced at least one incident of violence since the age of 16. [51] In 1992, There were 11,550 known incidents of sexual assault in Ontario, of these 5, 875 charges were laid [52], 2,285 of them in Toronto. [53]

There are as well court or incarceration costs. In 1993, 2,739 prostitution charges were laid in Toronto (from a total of 4013 in Ontario). [54] All of these would have required some court time. In the case of charges withdrawn, the time would be minimal. However even where there was an immediate guilty plea, there could be as many as three separate hearings. [55] The hourly cost of operating court sessions in the provincial division for the current fiscal year is $210.50. [56]

Should a conviction result in a jail sentence, there are potential incarceration costs. In 1993, 372 of those charged received jail sentences. [57] The average cost for keeping an adult inmate in a provincial detention centre is $116.03 per day. Individuals are kept in detention centres while awaiting a bail hearing, or if bail has been refused while awaiting trial. If convicted, individuals will also be put in detention centres if their sentence is for less than a month. Should the jail term be longer, they are placed in a correctional facility; average cost provincially: $134.90 per day. [58]

This does not include the costs of police officers testifying. Consider the following scenario:

In a Toronto Courtroom, one of 12 women busted in the raid last January had her trial remanded for a second time -- this time until June. Present were at least three plainclothes officers who took part in the arrest.

In all ten people, most of them officers, will eventually testify at the trial, which the Crown says will take at least a full day to complete. [59]

Officers required to testify when off duty get a minimum of three hours overtime (time and a half). If they are required to testify during their annual leave they are entitled to a minimum of 16 hours extra leave. Because of recent budget cuts, the official policy now is to schedule court appearances so that officers are on duty (and therefore paid at the regular rate). This however, has resulted in entire shifts being detailed for court, leaving no one for patrol duty. It has also cut back on the amount of available backups. [60] Again, this does not count the time needed by the officer to take the prostitute in, process him or her and fill out the necessary paperwork. This is time which will not be spent out on patrol. Every prostitute arrested and processed through the system means there will be one less police officer available for your protection should you need them.

It was not possible to come up with a concrete total for costs to the system due to enforcement of the prostitution laws. Neither police, courts nor detention centres separate totals regarding prostitution as opposed to other offenses. In particular, much of the police costs are hidden in general budget requirements for the major crimes units of the various divisions. One important step on the road to a more efficient use of tax dollars would be to insist separate calculations be made and tallied, so that the tax payer may decide if the cost is really worth it. In the United States, where such calculations have been made, the results have been startling. For instance a 1987 study of the municipal costs to 16 major American cities found that a total of $120 million dollars were spent in 1985 to combat prostitution. To put this in perspective: with the $2.3 million New York City alone spent in 1985 controlling prostitution, the city could have purchased the entire 1982 police departments of Toledo, Tampa, Rochester or St. Paul, or the fire departments of Atlanta, Honolulu, Indianapolis, Miami, or St. Louis. [61]

Lest this seem out of whack with Canadian reality, Professor John Lowman reported that the Vancouver police mounted a $1 million operation to close down a sex clubs in 1975. [62] This did not count court costs, which were high since the case eventually went to the Appeal Court (the defendants -- the former club owners -- won on appeal). [63] The court costs, plus the investigation of a 2nd club, which burned down before the police could act, brought the entire bill to $2 million. [64] What was the end result of the operation?

The prostitution laws are ultimately harmful to both prostitutes and public because they reinforce and encourage negative double standards regarding what is or is not acceptable female behaviour.

Acceptable female sexual behaviour is much more narrowly defined than male sexual behaviour. Although we pride ourselves on being more sexually enlightened than previous generations, our societal bias against sexually promiscuous women as opposed to our tolerance of sexually promiscuous men is still apparent in that criminal sanctions officially applying to both the male and female participants in prostitution, are in actual practice applied mainly against women. [65] This includes laws meant to protect prostitutes from exploitation as well as those directed against them. [66]

This gender bias does more than result in an inequality of criminal charges however. Prostitutes are punished for their deviant behaviour on an unofficial level as well, by a higher rate of violence directed towards them by both the general public and the police. "Violence," in this case includes "low level" violence such as the day-to-day verbal abuse street prostitutes receive, as well as the more serious violence of theft, assault [67] or murder. The mortality rate in Canada for girls and women in prostitution is 40 times the national average. [68] Similar statistics have been reported in the United States. [69]

This abuse is both covertly and overtly condoned by the police. "Maggie's, the Toronto Prostitutes' Community Service Project" has reported numerous incidents of police either physically abusing or condoning the abuse of prostitutes:

A street prostitute was beaten, choked with a rope and left unconscious in an alley. She had severe bruising on her neck and face the next day when she approached two female police officers to report the incident. They asked her what she expected in her line of work and refused to take a report.

A homeless street prostitute was beaten and raped so badly that she ended up in hospital for several days and several months later still required surgery. The hospital called the police. the officer who responded to the call had arrested the woman in the past and during the arrest had been violent toward her. He told her, in front of the hospital staff, that she had it coming and left.

A well known street prostitute was beaten and suffered a serious head injury. She had to walk to the hospital in the middle of the night with blood pouring from her wound. She tried to hail a passing police car but they would not stop for her.

A "straight" woman called the police to report an assault in progress. It took twenty minutes for an officer to arrive. When she asked why, she was told that had it been another neighbourhood the response would have been within five minutes but because of where she was calling from it was assumed the woman being assaulted was a prostitute. [70]

This attitude has two effects:

violence is allowed to continue until someone "valuable" is killed [71] and
women's safety depends not on their general rights under the law, but whether they are considered a good girl or not. [72]

Thus being considered a "good" girl is crucial in protecting women from attack and in ensuring action is taken if they are attacked. [73] Attention is therefore focused on defining whether a woman is worthy of protection rather than stopping the violence the minute it starts. With this attitude it is no wonder that violence against women continues to be a problem in society. It should also be noted that although the majority of prostitutes in Canada are women [74], male prostitutes also suffer from violence by customers, police and third parties and receive little protection either from the police or in the courts. [75] Thus violence against prostitutes endangers not just women, but society in general.

It could be argued that violence towards prostitutes is neither encouraged nor condoned by the Criminal Code, and that if such behaviour is allowed, it is the result of inappropriate enforcement of the legislation, not a result of the legislation itself. However, the Criminal Code, by its existence, sanctions the belief that prostitutes are outside the normal scope of society. The legal nicety that prostitution is legal, even if its practice is not, does not bear much weight with the public, or the police. The laws still cause prostitutes to be viewed as pariahs:

because there are special laws, this seems to result in prostitutes being categorized as different. ... less worthy of protection by the police and a general attitude that they are second-class citizens. The Police and the public act towards prostitutes in ways that they would not with other women or men. [76]

As one prostitute bluntly put it: "It is like we are strange nocturnal animals that crawl out of the sewers at nights." [77] Therefore, so long as there are any laws which single out prostitutes for special treatment, these laws will strengthen the general prejudice against prostitution. So long as prejudice against prostitutes exists, the laws will be misused to aid and abet that prejudice, to allow prostitutes to be abused, beaten and murdered. So long as this is allowed to continue, all of us are in jeopardy.

[Table of Contents]

I: 2. Why Criminalization Remains Popular

If criminalization is so ineffective, not to say harmful, to both prostitutes and public, why is there a continuous clamour for ever tougher criminal sanctions? The answer is simple: by acting simultaneously with s. 213 [78], sections 210-212 [79] reduce the possibility of prostitution becoming socially "invisible," (e.g. prostitutes practising where they will not come into contact with the politically powerful) unless the law is enforced in a discretionary manner (e.g. allowing prostitutes to practice in one part of town so that they will not be seen in another). However, this leads to the erroneous belief tougher penalties are needed to enforce the law. As a result, the very conditions which ensure criminalization's ineffectiveness prolong its existence, by creating a continuous call for stiffer criminal sanctions.

While s. 213 is meant to deter street prostitution, its effectiveness is neutralized by the fact that prostitutes have nowhere else to go because of ss. 210, 211 and 212. As already mentioned, prostitutes as well as their landlords, customers and bosses may be charged under ss. 210-212. This means that indoor prostitution, even independent escort workers must carry on their business in a clandestine manner. [80] This invites both exploitation and violence.

While many indoor workers are able to earn a more substantial living than street prostitutes as well as avoiding much of the stigma (mainly because they are in a better position to hide their profession) they also end up paying much of their earnings to escort services, clubs, bars, hotel managers and owners. The "date" occurs on the clients turf (either home or hotel) in order to avoid charges under the bawdy house laws, forcing the prostitute to put themselves in a potentially dangerous situation. Because arrangements are made over the phone, the prostitute is walking into a blind situation, from which she may or may not return. Again, working independently is made difficult by the fact that they have no effective, legal recourse in the event of an assault or even breach of contract. Indeed, the laws meant to preclude exploitation by third parties actually increases its likelihood, since a prostitute cannot complain without risking a charge herself. [81] Even if a charge is not laid against the prostitute, he or she has now made herself known to the police, something he or she may have been able to avoid as an indoor worker. As a result, many prostitutes have chosen outdoor sex work (street solicitation) over indoor, because it is perceived as safer, even though arrests are more likely. [82]

In summary, the laws as they now stand make it difficult for prostitutes to leave the streets, much less prostitution. Therefore, the most the public can expect from criminalization is for it to operate as a control on where street prostitution is practised. However, in order to keep prostitution out of certain areas it must be allowed in others. This is born out by the fact that s. 213 was only successful in changing the location of street prostitution where it was used in a discretionary fashion. A study in 1989 of the effects of s. 213 in all major Canadian cities showed little or no change in the demographics of street prostitution. Where lower visibility was achieved it was through a calculated application of the law. Specifically, Calgary used the legislation to confine prostitution to publicly "acceptable" areas, by allowing prostitutes to work in certain parts of town while arresting them in others. [83]

This does not guarantee the public complete segregation from prostitution, however. First of all, the vast majority of prostitutes are "indoor workers" and most of the public comes in contact with them on a daily basis without knowing it, by either living or working near clandestine indoor prostitution of some form or other. [84] Secondly, even in the case of street prostitution, which attracts public attention, criminalization does not guarantee segregation for the simple reason police containment of prostitution is defined by public demand. Police will allow prostitution to exist in one area to keep it out of another. Police find unofficial regulation very useful as it allows them to contain prostitution in publicly acceptable areas (e.g. neighbourhoods too poor to command any political clout). [85] It also enables them to use the criminal law as a bargaining chip with prostitutes, withholding arrests in exchange for information. [86]

However the acceptability of an area will gradually change over time, in particular when business or up scale residents become interested in it. When this happens prostitutes who were "invisible" become unacceptably "visible" and enforcement once again becomes a "problem". [87] Police will then respond to public demands (if they are sufficiently vocal) and attempt to move prostitution somewhere else, however the "damage" will have already been done, in that the public has been contaminated by exposure to prostitution. It may also take quite some time for new boundaries to be created which are satisfactory to both prostitutes and residents.

As well, movement of this sort can create more problems than it solves. Heightened press coverage raised enough public clamour to cause the closure of two notorious sex clubs in Vancouver in the 1970s, after they had been operating, more or less openly, for years. [88] As a result, the prostitutes formerly working the clubs were displaced onto the streets. The areas where prostitution was unofficially tolerated were not able to accommodate the new influx of sex workers (there were estimated to be 100 prostitutes working the two clubs) so the new street prostitutes spilled into more upscale residential areas. The residents and local businesses of the new prostitution tracks were of course unhappy at this development and lobbied police for action. [89] To the residents, the sudden appearance of prostitutes in their area was perceived as evidence that the laws are not "tough" enough or broad enough to enable the police to do their jobs, not realizing that it was tougher enforcement which had upset the status quo and caused the redistribution of prostitution into their area.

Police and municipal authorities, reacting to pressure from citizen groups then pressure higher levels of government to enact laws giving police wider latitude in enforcement. [90] The government reacting to both public pressure and the advice of those it views as an extension of itself (police and local politicians) moves to enact the laws which will guarantee a quick fix to the problem. Thus the main aim is removal, so that respectable citizens are not offended by the sight of prostitution and so that police and public officials may appear to have moved quickly to satisfy their constituency. The new laws (or new effort to enforce old laws) are enforced (or manipulated) with a calculated vengeance by police until voter and press interest wanes or until budget and man power constraints cause the police to shift their focus elsewhere.

[P]ublic clamour for the alteration of prostitution laws or the demand for their better enforcement would come, if it comes at all, when prostitution becomes such a phenomenon that it begins to affect the lives of the ordinary citizens. As long as prostitution remains a private business between the prostitute and her client, out of sight of those who are not her clients, it does not appear likely to rouse much public enthusiasm. The police in many countries appear to be aware of this and to fashioning their activity using the criterion of public tolerance as a measure of control. [91]

A perfect example of this phenomenon is the Parkdale community, an older neighbourhood in Toronto, long considered the dumping ground for the city's untouchables, including a substantial number of street prostitutes. However a Yuppie invasion of Parkdale in the 80s brought forth the startling fact that Toronto had a "problem" enforcing its prostitution laws (ignoring the fact that police had tacitly allowed street prostitution in Parkdale for years). Since then there has been an ongoing war between the new middle class homeowners and cops on the one hand, and the neighbourhood's indigenous population on the other. [92] It is residents' groups such as Parkdale's RASP (Residents Against Street Prostitution) which have lobbied for tougher sanctions like those recommended by the Standing Committee and the Wilson Task Force. [93]

All that the current system can guarantee is that this vicious cycle will continue if nothing is changed. With no clear place where they can practice which is both safe and accessible to clients, prostitutes will continue to push the envelope of societal tolerance as they try to survive. Prostitutes (like the rest of us) will not willingly seek the most unsavoury and dangerous areas in which to work. Instead, they will try to find places that are safe and habitable. In the case of street prostitution this means finding a neighbourhood that is well lit and not too run down. However because of the permanent legal twilight in which they exist, prostitutes have no way of knowing when and if they have crossed the line from "invisible" to visible until after public furore has begun. Because of its clandestine nature unofficial regulation is very uncertain, since it is almost totally at the whim of the enforcer. Prostitutes who are allowed to operate relatively unmolested one minute can become subject to arrest the next because of a change in public opinion or a need for a higher arrest quota. Again, because of the hidden nature of the unofficial policy, it makes law reform difficult, since the real reasons for the enforcement of the law (or lack of enforcement) are kept secret.

[Table of Contents]

I: 3. Conclusions Regarding Criminalization

In Conclusion, it is clear criminalization doesn't work. It entrenches rather than reduces prostitution, and is detrimental to the control of violence in society in that it takes money and officers away from controlling serious crime and actually encourages the belief that violence is acceptable in certain circumstances. Furthermore rather than controlling prostitution's whereabouts, criminalization creates a situation where perennial confrontation between the politically influential and prostitutes is inevitable. The resulting calls for tougher laws and stricter enforcement, create a vicious merry-go-round of self-fulfilling inefficiency and harm.

All of this can be traced to the overriding emphasis on invisibility. The public places a high premium on prostitutes remaining invisible to the point that all forms of prostitution are forced underground. In this invisible world, violence and exploitation continue at outrageous levels, which again remain invisible to the public. The police practice an invisible policy of enforcement, manipulating the law to meet the perceived needs of the public. The public, unaware of the invisible factors motivating enforcement, calls for reforms to the laws which exacerbate rather than solve the problem. Furthermore, costs of enforcement remain invisible, hidden within the overall budgets of police, courts and correction facilities. This would seem to indicate that some form of "visible" or officially condoned prostitution is necessary to bring some efficiency, not to say honesty back to the system. Yet most people balk at the idea of wholesale removal of prostitution from the Criminal Code. What then is the alternative? There are currently two regimes practised in the world which allow for a partial decriminalization of prostitution: regulation and abolitionism. However it is the contention of this paper that even these systems fail because of the overriding importance placed on prostitution invisibility.

[Table of Contents]

II. Regulation (Victoria, Australia)

II: 1. Regulation and the Fraser Report

Regulation (sometimes known as legalization) permits prostitution in certain forms, usually through zoning (confinement to certain areas) or licensing (licensing a limited number of prostitutes to work in certain areas of a city). Regulation views prostitution as a necessary evil if not a social necessity. The aim is not eradication so much as control -- the goal being to keep prostitution limited to areas of town where it will not offend the rest of the citizenry.

Regulation is the preferred approach of liberal minded officials who are willing to try something other than criminalization, but still wish to maintain control over prostitution. Regulation is occasionally contemplated in Canada by local politicians, [94] however, the only time it has been officially put forward however, was through the Fraser report [95], the first government study of adult prostitution in Canada. Put out in 1986, it suggested a combination of tough criminal sanctions against street prostitution while endorsing a licensing system for brothels.

The Fraser Committee realized that tougher street laws by themselves would have little effect other than to shift prostitution from one area to another, depending on the diligence of enforcement. However it was obvious from the oral and written submissions made to the Committee that the sector of the public most vocal on the matter (residence groups, police, municipal officials) would accept nothing less than complete criminalization of street prostitution. [96] The Fraser Committee did recommend that tough public solicitation be prohibited but then sought to create a neutral sphere for prostitutes "indoors" by allowing an exception to the bawdy house proscription for up to two prostitutes practising out of a residence. However, this they felt might run into resistance from provinces and municipalities, many of which do not zone for "out of house" industries. They therefore made a second exception to the bawdy house laws which would allow for licensing of indoor brothels, thus introducing regulation into the scheme [97].

The Fraser Committee recommendations were not acted upon by the federal government. Had they been, it is open to question as to whether they would have improved things for either prostitutes or the public. Regulation has not proved particularly successful in the countries where it is practised, invariably, prostitutes' civil rights are adversely effected and under ground prostitution continues to exist in tandem with legal prostitution thereby defeating the entire purpose of the regulatory scheme. [98] However, it could be argued that this does not automatically mean it would have failed in the Canadian context. It is possible to get an idea of how the law might have fared by looking at the experience of Victoria, Australia.

[Table of Contents]

II: 2. Regulation and Victoria, Australia

The situation in Victoria is of particular interest to Canada, since in many ways it parallels the Canadian situation. Up to 1984, prostitution in Victoria was governed by a series of laws which combined to criminalize all aspects of prostitution. Like other countries with total criminalization this did not eradicate prostitution or even effectively control it. The current labour government then in power was for the most part sympathetic to total decriminalization, however the most vocal and well organized of its constituents (local resident groups) called for tougher criminalization. [99]

The government sought to compromise by creating a form of regulation which would both protect prostitutes from exploitation and protect residents from the "nuisances" exposure to prostitution create. The government continued to criminalize all forms of prostitution except for prostitution through escort services or licensed brothels (zoning and licensing requirements for brothels to be determined by the proper municipal authorities). [100]

The Victoria experiment has failed for two reasons. First because municipalities have complete control over giving or refusing licenses, the number of legal brothels has been sharply limited as communities seek to limit the existence of prostitution in their areas. [101] This has caused a bidding war to erupt around the small number of permits available, guaranteeing that small and individual operators will be unable to practise legally, because they cannot afford the inflated licensing prices. [102] As a result, there is a shortage of legal employment for the prostitutes in Victoria, forcing many of them to continue to practice illegally. [103]

Secondly, because legal prostitution has been limited to a very few businesses, brothel owners have gained extraordinary power over their staff as the supply of prostitutes, wishing to work legally, greatly exceeds the demand. This has translated into abominable working conditions for prostitutes "fortunate" enough to get legal employment.

Women working in legal brothels have to submit to "house rules" which includes the operators taking 60 percent of all client fees and some have been asked for money up-front for employment in brothels., Owners have increased their profits by imposing a system of fines for various misdemeanours such as lateness, not shaving legs and not having matching nail polish on fingers and toes.
. . .

Brothels in Victoria have become high risk areas for prostitutes who are often exposed to physical violence, AIDS and sexually transmitted diseases. Prostitutes Collective representatives suggested that safe sex is not popular among the clienteles of most brothels, with the result that a prostitute's good intentions regarding safe sex may lapse if she has been waiting all night for a client and someone wants sex without a condom. [104]
. . .

[T]hose in legal brothels complain about the increasing greed of licensed owners. With so many women available for work in legal brothel, owners often crowd shifts with workers in order to give clients a wider choice of prostitutes. For the women, though, this increases competition and decreases earnings. [105]
. . .

[S]ince 1984, the working conditions for female prostitutes have apparently declined. ... Workers are coerced to take clients and perform acts that they find objectionable or are forced to take part in "parades" before potential clients. They are compelled to socialize with clients for no remuneration, are deprived of meal breaks, and are subjected to sexual harassment and abuse by brothel managers. ... These women are also ... required to sign a contract waiving their civil rights and entitlement to Workcare (health and safety protection) [106]

Given these appalling conditions, and the shortage of legal brothels in general, it is not surprising that illegal prostitution is on the increase. For many prostitutes it is a choice of safety over legality, as one sex worker in Melbourne put it, in the legal brothels "the bottom line is the dollar, not the worker's health. ... working illegally will allow me to protect my health and my earnings" [107]

For those choosing not to work in legal brothels there are several alternatives: work legally through an escort service or illegally either on the streets or in an unlicensed brothel (this includes working by yourself out of your own home, if you do not have a permit). None of these are pleasant alternatives. While escort work is relatively legal (the owners and staff of the service can all be charged with "living off the earnings" of a prostitute [108], the prostitute can not) and lucrative, it is considered extremely dangerous work and many prostitutes will not do it. [109] Working the streets is also hazardous [110] and carries with it the risk of arrest. Working in an illegal brothel, while minimizing the danger of sex work, increases the risk of arrest.

However, in all three cases -- street work, escort services and illegal brothel -- because prostitutes have "chosen" to work outside the ambit of acceptable prostitution in Victoria, they are subjected to greater harassment and violence at the hands of police, clients, pimps and "other males." [111] Rather than improve conditions for prostitutes the legislation has caused them to deteriorate. Because it offers legal employment to a small percentage of sex workers, the law exaggerates the criminality of the rest of the prostitute population:

These new legal frameworks create a new class of female deviant: women who continue to work on the street and thereby resist the move to established premises such as brothels and parlours are further marginalized. There would appear to be a contradiction between the espoused concern for workers expressed in certain sections of the legislation and the desire for elevated control through commercial regulation. [112]

As of today, it is generally agreed among prostitutes and politicians alike that the legislation in Victoria has failed in its objectives both to regulate the sex industry and to decrease the powerlessness of the male and female workers within it. [113]

It has been of great interest to Pro's (Prostitutes Collective of Victoria) and sex workers that all Legislative Assembly Representatives reviewing prostitution law reform, have returned home, acknowledging that legislation in Victoria has failed to meet its stated objectives and should be viewed as a lesson in seriously defective policy making and how to avoid it. Hopefully this lesson has prevented similar mistakes being made in other states. [114]

What is noteworthy about this situation, is that all the aforementioned difficulties were predicted by the PVC (Prostitutes Collective of Victoria) and APC (Australian Prostitutes Collective) in their submissions to the Neave Inquiry in 1984. [115]

[T]he dividing up of prostitute women into criminal and non criminal gives permit holders, that is, those with the ability to render a woman's activity non-criminal in prostitution great power over the women they employ. ... Formerly women were able to negotiate the type of services they were willing to provide for their client because those services were illegal and the management remained uninvolved in them. The enforcement of the provision of certain services ... is being affected by systems of fines in legal brothels. [116]
. . .

Private establishments do not have the turnover of the larger establishments, but the women are able to make as much money by paying only residential rents to agents who are often unaware of the true use of the property. In this way women have been able to operate free from excessive costs and male administration. Perhaps one advantage of the criminal law, i.e. the Vagrancy Act, for working women was that brothel keepers remained away from the premises for fear of being charged with living off the earnings of a prostitute or keeping a brothel. This means that women were able to control their work places to some extent by operating as sub-contractors answerable only for the number of clients recorded at the end of the day and the state, and on, of the premises. Regulated brothels deprive women of both types of opportunity of autonomy within their work place. That is, the de facto autonomy that comes from the absentee boss . . . and reasonable overheads. [117]

As one frustrated activist said:

This certainly raises the issue of the purpose of involving sex industry workers in the legislative process and then ignoring their input. [118]

Attempts were made to improve working conditions through the Brothel Health Regulation Act, enacted in 1990. The Act was meant to empower sex workers (allowing them to refuse clients) and improve their work environment through the free supply of condoms, lubricants and educative material, all supplied by the brothel owner. However, while laudable, the Act is self defeating since it places the onus on the prostitute to complain, if the requirements of the Act are not met. Those that do complain are physically and verbally abused by their employers and then "sacked". [119] The brothel owner always holds the final trump card, since the only alternative to employment with him (or one of his equally undesirable cronies) is to work illegally. [120]

[Table of Contents]

II: 3. What Can be Learned From Victoria

Regulation does little to change the dynamics between prostitutes and he public in that it legitimizes prostitution only to the point that it may be practised in certain circumstances, but does not accord prostitutes any practical rights beyond the right not to be criminally charged in certain circumstances. The stigma of prostitution will continue to influence the public's treatment of prostitutes, and the fact that prostitution is still, for the most part illegal, will only help to entrench prejudicial notions.
The "Not in My Backyard" syndrome will prevent Regulation from providing an adequate number of jobs for sex workers in a given area. Where legal forms of prostitution are so marginalized that they are only available to a small percentage of the prostitute population, a large underground form of illegal prostitution will obviously continue to flourish, since partial legalization does not effect either the conditions that cause individuals to enter prostitution or the societal norms which encourage men to patronize them.
Because the emphasis is on invisibility rather than safe, desirable working conditions, prostitutes must choose between a form of indentured servitude and working illegally. Since in many ways illegal prostitution is actually safer and healthier than publicly sanctioned brothels many prostitutes sensibly choose to work illegally. This infers that even were there enough legal brothels to employ the entire prostitute population, unless the working conditions are reasonable, illegal prostitution will continue to flourish.
For prostitutes and non prostitutes to come to an agreement over how they may effectively interact seems to require that prostitutes rights and safety be viewed as interests which are in harmony rather than in tension with public interests for an orderly, prosperous community.

[Table of Contents]

III. Abolitionism

Criminalization and regulation both seem to be dismal failures as far as benefitting either the public or prostitutes. The question remains, is there a form of partial decriminalization which would be more effective? The last legal regime available, which has not yet been considered is abolitionism. Abolitionism is the final stop on the legal spectrum between complete criminalization and total decriminalization of prostitution. [121] Abolitionism criminalizes the activities of those seen as exploiting or coercing prostitutes (so-called "pimping" and "procuring" laws) while leaving prostitutes themselves free from regulation. This is the system endorsed by the UN in its Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others. [122] This strategy sees prostitutes as victims rather than criminals and therefore not an appropriate target for the Criminal Code. While not endorsing prostitution, it seeks to protect prostitutes from abusive treatment by "pimps" or brothel owners, while it works towards the final abolition of prostitution itself. [123] The UN recommended this strategy be accompanied by government efforts towards "reintegrating" prostitutes back into "legitimate" society. [124] To date, no country has adopted a pure form of abolitionism. [125]

Abolitionism is quite popular among feminists, since it is meant to free prostitutes from criminalization while still affording them special protection under the law. The main criticism of this approach has been that the laws are too broad, targeting all individuals who have contact with prostitutes, rather than only those who do them harm. [126] As noted earlier, the laws currently in place addressing exploitation of prostitutes serve only to isolate prostitutes from family and friends and in fact push into unsavoury relationships rather than the reverse. [127]

Prostitutes' Groups (the main critics of abolitionism and indeed all regimes which include prostitution under the criminal laws) have argued that exploitive third party laws, (In Canada ss. 210 [128], 211 [129] & 212 [130] of the Criminal Code) should be abolished. This would not leave prostitutes unprotected since abusive behaviour would then be controlled under the general prohibitions against kidnapping, assault and extortion. Proponents of abolitionism claim that the general laws will not adequately address the special nature of prostitution [131] and seek instead to narrow the laws against exploitation so that they will affect only negative or exploitive relationships.

Initially, Abolitionism seems quite benign and a reasonable compromise between criminalization and decriminalization. However there are serious flaws to the Abolitionist logic. First of all, once exploitive third party laws are narrowed in the way that the Abolitionists suggest, they are no different from the general laws they are supposed to improve on. However, while they do not increase the safety of prostitutes, these laws will still continue to segregate prostitutes from the rest of society. This begs the question what the real reason is for their continued existence.

Take for instance Recommendation 60 of the Fraser Report which was meant to replace s. 212(1)(j) (living on the avails of prostitution):

Every one who by force, threat of force or other coercive or threatening behaviour induces a person of 18 years or older to support him financially in whole or in part by acts of prostitution is guilty of an indictable offence and liable to imprisonment for 14 years. [132]

If one compares this recommendation with s. 346 (extortion) of the Criminal Code [133], there seems to be little or no significant difference between the two provisions except for the fact that Recommendation 60 is limited to occasions involving the financial earnings of prostitution. In fact s. 346 is arguably broader, including threats to parties other than the intended victim as a form of extortion [134], whereas recommendation 60 limits itself to the vaguer phrase "other coercive or threatening behaviour" which may or may not include such behaviour being directed at someone other than the prostitute. As well, judicial interpretation of s. 346 has been quite expansive, allowing a broad range of occurrences to come within its scope [135], including cases of coerced sexual intercourse. [136] (Even if s. 346 were less inclusive, any lapse would surely be covered by s. 265 of the Criminal Code. [137] ) It also cannot be that s. 346 is not a sufficient deterrent since it carries the maximum sentence of life imprisonment.

The same argument could be made word for word regarding the recommendations of the Fraser Committee for the procurement provisions (s. 212(1)(a-i) of the Criminal Code):

Recommendation 59 of the Fraser Report
Every one who

by force, threat of force or by other coercive or threatening behaviour induces a person of 18 years or older to engage in prostitution with another person or generally,

by force, threat of force or by other coercive or threatening behaviour compels a person of 18 years or older to continue engaging in prostitution with another person or generally is guilty of an indictable offence and liable to imprisonment for 14 years.] [138]

Besides the obvious application of the already discussed assault and extortion provisions, compare Recommendation 59 with the Criminal Code section on kidnapping (s. 279). [139] Section 279 is broadly worded and has been interpreted in such a way that coercive procurement could certainly fall under its heading. [140]

The Fraser Committee mentioned the unique "relational" aspects of exploitation of prostitution as precluding the effective use of the general criminal laws, but it is unclear what was meant by that. [141] If the Committee meant that abuse or exploitation of prostitutes is unusual in that the abuse is ongoing rather than a single, isolated incident of abuse, this does not preclude the use of ss. 346 (extortion), 265 (assault) or 279 (kidnapping). The Extortion provision is not limited to one time occurrences as evidenced by its use of plurals -- "threats, accusations, menaces". The same can be said for the assault or kidnapping provisions which allow for multiple charges to be laid. Certainly in cases of wife abuse there has never been an objection to filing charges in this regard.

If there are no foreseeable positive effects from recommendations 59 and 60 there are certainly negative ones. The problem with recommendations 59 and 60 is that they differentiates between times when a prostitute is being coerced, threatened or abused for financial reasons (in which case recommendations 59 and 60 are activated) as opposed to times when money is not an issue (in which case the prostitute is protected under the general criminal laws). A specific example of this would be where an individual in a relationship with a prostitute becomes abusive. One must then decide whether this is purely an "emotional" matter, or a financial one before filing charges. Since the presumption of most court and law enforcement officials is that anyone associated with a prostitute must be "pimping" (extorting money from her/him) in one way or another (otherwise why in the world would they be hanging out with a prostitute) the usual reaction is to file living on the avails charges, regardless of what the prostitute says.

Prostitutes find this assumption degrading since the "living on the avails" charge demeans not only the individual against whom it is made, but also the prostitute making it, inferring that they are emotionally incapable of normal relationships and intellectually incapable of handling their own money. Currently, Maggie's has reported that prostitutes are disinclined to charge a partner with assault because they are afraid they will be pressured by police to file "living on the avails" charges instead. The living on the avails law therefore actually dissuades prostitutes from asserting their legal rights to be protected from violent behaviour.

If such laws have no practical value for the prostitute, and in fact have the reverse effect, why then do even the most liberal reformers cling to them? Perhaps abolitionist policies become more logical if one steps back and considers that the over-riding concern of the other legal regimes (criminalization and regulation) is the need to accommodate the public's insistence on segregation from the prostitution population. Perhaps, abolitionism also requires some form of segregation, allowing for the physical but not legal integration of the prostitute into the community. [142]

That our very laws require protection from the contamination of prostitution seems absurd, but just such an argument has been made. Concerned residents and municipal and police officials were appalled at the thought of prostitution laws being taken off the books because of the legalistic intermingling this would cause between prostitutes and "citizens":

Such a model could actually bring about injustices, because citizens who committed offenses governed by the same legislation to be used for prostitutes would be identified with them. It would be unfair that they should be subject to the same pressures when their offenses (unrelated to prostitution) would be occasional and unprofitable. [143]

Prostitution therefore carries its own stigma and contaminates all who come in contact with it, even indirectly through sharing the same laws. In effect, the stigma of prostitution is so strong that it is necessary to segregate even the criminal portion of the public from the taint of prostitution's unsavoury nature. [144]

The hypocrisy of Abolitionism shows clearly that so long as laws specifically target prostitution, whether to hinder or "help" them, prostitutes will be subject to separate but unequal treatment. Experience also shows us that so long as prostitutes (or any other group for that matter) are disadvantaged by society, everyone suffers. Therefore, the only way to fully achieve the twin objectives of prostitution laws (protection of the public and protection of prostitutes) is to scrap the laws altogether.

[Table of Contents]

IV. Total Decriminalization

If criminalization, regulation and abolitionism are all ineffective, what's left? What prostitutes' rights groups and some feminists advocate is decriminalization. Decriminalization is the complete removal of prostitution and prostitution related offenses from the Criminal Code, including those offenses dealing with the exploitation or coercion of prostitutes. Not practised by any country to date, this approach seeks to affirm the rightful place of prostitutes in the community by erasing at least the legal distinction between them and the rest of society. Proponents of this approach feel specialized treatment merely reenforces the marginalized position of prostitutes and in fact reduces rather than increases either their quality of life or their chances to leave the profession should they wish to do so. [145]

From the review of the previous sections it should be clear that proponents of decriminalization are correct, laws which separate and segregate prostitutes are unhealthy for both the prostitute and the community. However for decriminalization to be effective it is necessary that (1) all parties be in agreement as to its implementation, including prostitutes and (2) to ensure prostitute representation, prostitutes' rights groups must be strengthened and increased.

[Table of Contents]

IV: 1. The Importance of Local Authorities
Regarding the Success of Decriminalization

Decriminalization has its share of critics. The Fraser report rejected complete decriminalization for a number of reasons:

The majority of the Committee was not satisfied that the more general provisions were adequate to take account of "the relational exploitation which is apparent in prostitution. Offenses such as assault, kidnapping and extortion tend to concentrate upon single incident criminality."
Removing all mention of prostitution from the Criminal Code might give the impression that the government endorses the exploitation of prostitutes.
Without further discussion between "the various levels of government" there would be no guarantee that provinces and municipalities would not be resistant to creating regulatory regimes to "replace the present complex of criminal law provisions." [146]

We have already dealt with the first concern, and found it wanting. The second can be dealt with quite easily. It is ridiculous to fear that government would be seen as endorsing prostitution merely because it was removed from the Criminal Code. Abortion, adultery and attempted suicide are all absent from the Code and no one has accused the government of endorsing a whole sale use of either. In the case of attempted suicide and adultery, at least, their absence is merely a sign that government believes such matters are not appropriate for the criminal law context. Indeed, the trend for the past half century has been to move away from legislating morality. Lord Wolfenden Committee, whose report in 1963 formed the basis for British law reform on prostitution [147], put it bluntly:

[the function of the criminal is] to preserve public order and decency, to protect the citizen from what is injurious or offensive and to provide safeguards against the exploitation and corruption of others, ... It is not, in our view, the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular code of behaviour, further than is necessary to carry out the purposes of what we have outlined. [148]

This leaves us with the third consideration of the Fraser Report: the resistance of the provinces and municipalities to any form of decriminalization. This is actually quite crucial, since local support can easily subvert legislative intentions. For example Queensland is considered the most repressive state in Australia, having criminalized all aspects of prostitution, except for "one woman brothels" (single women working out of their homes). As with all traditional criminalization policies the aim of the legislation was to use arrests as a deterrent to the practice of prostitution. New South Wales, on the other hand, adopted a policy of partial decriminalization, the government having decided that criminalization was an ineffectual way to deal with prostitution. The new laws legalized public solicitation, except where the solicitation took place in or near a dwelling, church, school or hospital, with the aim of distancing. This should have decreased prostitute contact with the criminal law by allowing them a wider range of legal activity. However a 1986 study showed that prostitutes in New South Wales were arrested on average 26 times as often as those in Queensland. It was not a matter of availability of the legal means of enforcement, but police interest in enforcing them. [149]

There are also plenty of examples of municipalities utilizing laws other than those specifically directed at prostitutes to constrain prostitution. France and New South Wales, Australia, both of which went through periods when street solicitation was decriminalized. However general nuisance laws were used to such an extent that arrest rates of street prostitutes equalled those made when street solicitation was illegal. [150] Local authorities are not limited in their weaponry to general criminal provisions, however. Municipalities employed such creative strategies as traffic diversion schemes, changes to street lighting, and attempting to deprive prostitutes of water, electricity and phone service, [151] as well as the more mundane methods of zoning by-laws [152] to control prostitution.

Authorities (e.g. police, municipal and provincial authorities, as well as court officials such as crown counsels) at the time of the Fraser Report demonstrated a resistance to even partial decriminalization:

Decriminalization was rejected by all our respondents who have ever had to enforce the current legislation. They feel it would only aggravate the present situation. The problems that have arisen with interpretation of the legislation would increase with the use of vague sections of the acts. Furthermore, specialized squads could no longer be used. The police would be swamped trying to control the crime which would inevitably aries from unchecked prostitution.

Decriminalization is seen as political shilly-shallying. It would give the impression of action but would not change the situation. Activities related to prostitution would be prohibited, but there would be no means to control them since unclear legislation cannot be enforced. Meanwhile, prostitution and its negative consequences would be tolerated. This model would offer no real advantages for the prostitutes themselves; it would have no dissuasive value. Prostitutes would still have criminal records and their rehabilitation would be no easier. [153]

From this statement it is clear that the concerns of the Fraser Report are warranted. Those in charge of enforcing the status quo will be loath to change. Municipalities, police and the provinces view prostitution as a source of crime and urban blight, which will overrun the city if not properly controlled. As a result, regardless of the existence of criminal laws specifically aimed at prostitution, municipalities, police and the provinces will continue to treat prostitution as a crime, in any manner that they can, believing that prostitutes can only be "helped" by being forcibly shown the error of their ways.

While provinces and municipalities are limited in how far they can go in restraining prostitution while it falls under federal jurisdiction (e.g. while it remains in the ) once it is removed, what will happen then? Actually regulating prostitution out of existence would be considered technically outside the scope of provincial authority, since this would be construed as in pith and substance a criminalization of prostitution. [154] However, courts might allow such regulation to go quite a ways before such a ruling was made. [155]

What must be made clear to community officials is that official or unoficial criminalization of prostitution merely continues the cycle of underground prostitution which is detrimental to both sides of the equation. With or without the criminal law, so long as invisibility is considered paramount even at the cost of the health and safety of prostitutes, neither prostitutes or the public will get what they want. Prostitutes will continue to live and work in appalling conditions, isolated from family and friends and treated like pariahs, and the public will continue to be "plagued" by unwanted forms of prostitution in "inappropriate" parts of the city. As well, for those who wish the complete eradication of prostitution on moral or political grounds, the same appalling conditions which are forced on prostitutes by the emphasis on invisibility also make it impossible for them to leave the life. Rather than deter prostitution, such policy entrenches it.

For decriminalization to succeed, prostitutes rights groups and municipalities must work together to set up systems which both sides can live with. This is not unheard of: in Australia prostitutes' rights group have made significant contributions to studies on legal reform of the prostitution laws. The Australian Prostitutes Collective (existing under various names since 1978) was instrumental in convincing key members of the Victoria Labour Party to press for decriminalization. It was also active in both inquiries of the New South Wales Select Committee Upon Prostitution in 1983 [156], as well the Neave Report in 1985. [157]

On a more local level, in 1986 a small group of madams and sex workers met with graduates in town planning from the Faculty of Architecture and the Faculty of Law at the University of New South Wales to create a legislative scheme which would be satisfactory to all facets of the community. [158] This event was memorable in that prostitutes and non prostitutes acted together as concerned citizens. While their recommendations are not perfect, they are noteworthy in that they show the kind of workable compromise which can be achieved by the united efforts of all members of the community:

Street Solicitation: street solicitation was to be regulated but in a very specific manner. The soliciting law then in place prohibited any solicitation "near a dwelling, school, church, hospital." [159] The law's vagueness was qualified by replacing the word "near" with an actual distance (100 metres was given as an example). This would help reduce the confusion over where solicitation could take place and also limit the discretionary powers of the police to harass prostitutes. Licensed venues where streetwalkers could take their clients were also recommended to reduce the vulnerability of street workers to violence.

Brothels: The licensing of brothels was to be allowed, with larger brothels being restricted to commercial areas, while smaller ones were to be allowed in the types or residential areas which were zoned for small doctor's offices. It was the responsibility of the state government to ensure that municipalities honoured these arrangements and did not unduly obstruct licensing. Private operations of one to two women would not require licensing of any kind.

Enforcement: A separate regulatory body, made up of representative of the Departments of Planning and Health and the Australian Prostitutes Collective was to ensure environmental and health regulations were upheld and that workers were not abused. The board would have the power to issue licenses and inspect premises for health and safety violations. Should a violation be discovered, the board had the discretionary power to revoke the offender's licence. It was also envisaged that the board would be able to receive and arbitrate complaints from workers and managers. [160]

These recommendations anticipate and deal with many of the problems seen in the Victoria situation. Multiple venues are allowed for prostitution, which decrease the possibility of legal prostitution being ghettoized or marginalized to the point of ineffectiveness. The right of individual prostitutes to work independently is protected, thereby avoiding prostitution exploitation by brothel monopolies. The chances of municipalities abusing licensing discretion are tempered by the state acting as overseer, again avoiding the possibility that prostitution will be unnecessarily marginalized. Finally, prostitutes are directly represented on a board which protects workers rights and has the power to enforce those rights.

The main criticism to be made is that the recommendations still include the existence of prostitution within the criminal law sphere. This hardly seems necessary given that all of the recommended changes could come under town planning acts. In particular, the change made to the solicitation law, makes it seem more appropriate as a zoning ordinance than a criminal sanction. Yet even though the proposed reforms do not go far enough, had such a reform package been enacted in Victoria, with the full cooperation of municipal authorities and prostitutes, things might be very different today.

Examples like this must be brought to the attention of local and provincial governments, not to mention the police. Where community officials can be convinced to work with prostitutes rather than against them, they are far more likely to achieve workable solutions that allow prostitutes to practice in such a way that disturbs no one yet allows prostitutes to live in dignity.

[Table of Contents]

IV: 2. Strengthening Prostitutes' Rights
Groups as the Key to Successful Reform

Obviously then if prostitutes and community officials must learn to work together, prostitutes must have some sort of representation which is acknowledged by all. Therefore, prostitutes should be enabled to become more politically active. Prostitutes' rights groups must be encouraged to take a prominent place in the political sphere. In countries where this has occurred there have been multiple benefits. Prostitutes' groups have been able to dispel many of the public myths regarding prostitution and create a better relationship between the public and prostitutes. [161] Where prostitutes' groups have received political backing, they have also been successful in helping to create reasonable legislative and judicial reform. [162] Even in Canada, where prostitutes' rights groups have received little official help, they have made important contributions to the commuity as watch dogs regarding police misbehaviour [163] and in providing educational services regarding legal rights, health issues, counselling, support groups and job training to the prostitute community. [164]

To encourage local officials to take prostitutes' groups seriously however, prostitutes' groups must be given some sort of official acknowledgement (at a federal or provincial level) of their legitimacy. Currently most government funding of prostitutes' groups comes under the heading of AIDS education programs (ironically, the negative stereotype of prostitutes as carriers of sexually transmitted diseases while untrue, has enabled prostitutes groups to form and receive funding at an unprecedented level). [165] While such groups are also politically active, such funding gives the illusion that they are primarily a health service. Funding stipulations also limit what may or may not be done with the budget.

Government funding of prostitution groups should be expanded to officially include areas of political activism. One possibility might be to issue grants for the researching and reporting of police practices, working conditions of prostitutes and recommendations for reform. In the past when government committees or task forces such as the Fraser report and the Wilson Task Force have been convened, they have delegated research tasks to government bureaucrats or contracted out to academics. There is no reason why studies on prostitutes and prostitution laws should not be done by prostitutes themselves. This in fact makes enormous sense. In the past, researchers have had trouble contacting and interviewing prostitutes, mainly because prostitutes are loathe to talk to outsiders about themselves. [166] Studies and reports done by prostitutes would both yield more information and allow prostitutes a published forum from which they could speak their minds.

It is also time that feminists become more involved with the reform of prostitution laws. In the past, the relationship between feminist groups and prostitutes has been a rocky one. Feminists are uncomfortable with the idea that prostitution, even adult prostitution, could be a matter of choice, since feminists believe prostitution to be the ultimate example of male domination of women. [167] As a result, feminists have distanced themselves from most reform projects and have offered prostitutes' rights groups little material help. [168] However, regardless of one's moral or political views of prostitution this does not change the fact that prostitutes will continue to be degraded by their working conditions, whether or not they are degraded by the work itself, until the laws are changed. Feminists have a duty to actively work in tandem with prostitutes' rights groups towards decriminalization and a realization of full rights for prostitutes. Once this is achieved, the debate as to whether prostitution is legitimate work or merely another aspect of male oppression may become moot, as those wishing to leave prostitution will be free to do so.

In conclusion, prostitutes must be allowed to become part of the community in every way -- politically, socially and economically. Because the "problem" of prostitution isn't how to keep prostitutes completely invisible, but how to make them finally visible.

[Table of Contents]

References

See P. Scibelli, "Empowering Prostitutes: A Proposal for International Legal Reform" (1987) 10 Harvard Women's Law Journal 117 at 118 [back]

The author bases this assumption on the fact that all regimes explicitly prohibit coercive or exploitive behaviour towards prostitutes. As well, all regimes seek to limit prostitution to specific areas of the community. The pure form of abolitionism is not supposed to regulate prostitutes in any way through the criminal law, its prohibitions against third party involvement are so broad that it also severely marginalizes the practice of prostitution itself. This is not surprising, since the aim of abolitionism is the eventual abolition of prostitution. For further definition and discussion of abolitionism see pages 47-57 of this paper. [back]

This paper will be concentrating solely on the affects of the law on adult prostitution. While the subject of juvenile prostitution is an important one, it has already received a great deal of attention in academic circles; as compared to adult prostitution which has been largely ignored. [back]

L. Reanda "Prostitution as a Human Rights Question: Problems and Prospects of United Nations Action" (1991) 13 Human Rights Quarterly 202 at 203 [back]

OFFENCE IN RELATION TO PROSTITUTION

Section 213.1
1. every person who in a public place or in any place open to public view
2. stops or attempts to stop any motor vehicle
3. impedes the free flow of pedestrian or vehicular traffic or ingress to or egress from premises adjacent to that place, or
4. 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.
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. 1972, c. 13, s. 15; R.S. 1985, c. 51 (1st Supp.), s. 1. [back]

KEEPING COMMON BAWDY-HOUSE
Landlord, inmate, etc. -- Notice of conviction to be served to owner -- Duty of landlord on notice.

Section 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
  1. is an inmate of a common bawdy-house,
  2. is found, without lawful excuse, in a common bawdy-house, or
  3. 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.
3. Where a person is convicted of an offence under subsection (1), the court shall cause a notice of the conviction to be served on the owner, landlord or lessor of the place in respect of which the person is convicted or his agent, and the notice shall contain a statement to the effect that it is being served pursuant to this section.
4. Where a person on whom a notice is served under subsection (3) fails forthwith to exercise any right he may have to determine the tenancy or right of occupation of the person so convicted, and thereafter any person is convicted of an offence under subsection (1) in respect of the same premises, the person on whom the notice was served shall be deemed to have committed an offence under subsection (1) unless he proves that he has taken all reasonable steps to prevent the recurrence of the offence. R.S., c. C-34, s. 193. [back]

TRANSPORTING PERSON TO BAWDY-HOUSE

Section 211
Every one who knowingly takes, transports, directs, or offers to take, transport or direct any other person to a common bawdy-house is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 194. [back]

PROCURING
-- Idem -- Presumption -- offence in relation to juvenile prostitution.

Section 212
1. Every one who
  1. procures, attempts to procure or solicits a person to have illicit sexual intercourse with another person, whether in or out of Canada,
  2. inveigles or entices a person who is not a prostitute or a person of known immoral character to a common bawdy-house or house of assignation for the purpose of illicit sexual intercourse or prostitution,
  3. knowingly conceals a person in a common bawdy-house or house of assignation,
  4. procures or attempts to procure a person to become, whether in or out of Canada, a prostitute,
  5. procures or attempts to procure a person to leave the usual place of abode of that person in Canada, if that place is not a common bawdy-house, with intent that the person may become an inmate or frequenter of a common bawdy-house, whether in or out of Canada,
  6. on the arrival of a person in Canada, directs or causes that person to be directed or takes or causes that person to be taken, to a common mbawdy-house or house of assignation,
  7. procures a person to enter or leave Canada, for the purpose of prostitution,
  8. for the purposes of gain, exercises control, direction or influence over the movements of a person in such manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution with any person or generally,
  9. applies or administers to a person or causes that person to take any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower that person in order thereby to enable any person to have illicit sexual intercourse with that person, or
  10. lives wholly or in part on the avails of prostitution of another person,
  is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
2. Notwithstanding paragraph (1)(j), every person who lives wholly or in part on the avails of prostitution of another person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
3. Evidence that a person lives with or is habitually in the company of a prostitute or lives in a common bawdy-house or in a house of assignation is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution, for the purposes of paragraph (1)(j) and subsection (2)
4. Every person who, in any place, obtains or attempts to obtain,for consideration, the sexual services of a person who so is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. R.S., c. C-34, s. 195; 1972, c. 13, s. 14; 1980-81-82-83, c. 125, s, 13; R.S. 1985, c. 19 (3d Supp.), s. 9. [back]

NAWL has criticized the recommendations of the Standing Committee to further strengthen s. 213. With regards to fingerprinting and photographing those charged under s. 213 NAWL felt
1. the amendment to the criminal law is proposed for administrative rather than punitive reasons, making it an abuse of criminal law power.
2. Implementing identification procedures would result in increased risk to prostitutes by further limiting their client base, driving them further underground, and discouraging them from reporting problems to the police.
3. The recommendation is class biased in that most clients of street prostitutes tend to be from blue collar or low income backgrounds.
4. The amendment would violate s. 15 of the Canadian Charter of Rights and Freedoms in that someone charged with the summary offence of prostitution would be treated differently than someone charged with any other summary offence, all of which do not allow the fingerprinting or photographing the person charged.
5. Juvenile prostitutes would be driven underground.
See The National Association of Women and the Law, Brief Submitted on the Fourth Report of the Standing Committee on Justice and the Solicitor General on s. 213 of the Criminal Code, March 1991 at 1-4 [back]

The recommendation that persons convicted under s. 213, where a motor vehicle was involved, be prohibited from driving a motor vehicle for up to 3 months, was rejected by then Justice Minister Kim Campbell due to lack of direct connection between street solicitation and the use of a car. See The National Association of Women and the Law, supra, note 9 at 5 [back]

hereafter the Wilson Task Force [back]

Proposals for Action by Attorneys General to Promote Gender Equality in the Canadian Justice System (April 1992, Released July 5, 1993) at 7 [back]

Ibid. at 11, 12, 19, 22 [back]

Recommendation 1: The Committee recommends that the departments responsible for justice, health and welfare, and employment, at all levels of government, develop programs to provide start-up and core funding to community-based agencies providing integrated, holistic programs accessible to male and female prostitutes wishing to leave the street solicitation trade and responsive to their needs. -- The Fourth Report of the Standing Committee on Justice and the Solicitor General, on Section 213 of the Criminal Code.
It is proposed that Attorneys General in cooperation with Solicitors General and other appropriate ministers ... [c]ontinue to develop and support community-based integrated and holistic programs to serve those women and girls involved in prostitution and street soliciting who need assistance. - Proposals for Action by Attorneys General to Promote Gender Equality in the Canadian Justice System, supra, note 12 at 27 [back]

"Overwhelmingly, prostitutes cite economic causes as the reason they are on the street" -- Special Committee on Pornography and Prostitution (The Fraser Committee), Pornography and Prostitution in Canada (Ottawa: Department of Supply and Services, 1985) (Chair: Fraser) (hereafter the Fraser Report) at 376
See also R. Perkins, Working Girls: Prostitutes, their life and social control (Canberra: Australian Institute of Criminology, 1993) at 47 - prostitutes generally in field for economic reasons [back]

J. Lowman, "You Can Do It, But Don't do It Here: Some Comments On Proposals for the Reform of Canadian Prostitution Law" in J. Lowman, M.A. Jackson, T.S. Palys & S. Gavignan, eds., Regulating Sex: An Anthology of Commentaries on the Badgley and Fraser Reports (Burnaby, B.C.: School of Criminology, Simon Fraser University, 1985) 193 at 195 [back]

s. 213(1) (a-c) communicating includes anything which affects or attempts to affect pedestrian or vehicular traffic [back]

s. 213(2) -- the definition of "public place" includes any place to which the public have express or implied access, and any motor vehicle located within public view. [back]

The National Association of Women and the Law, Prostitution: Bill C-49 four Years Later (Brief Submitted by NAWL to the Standing Committee of Justice and Solicitor General, December 1989) at 8-9 [back]

N.LJones "Guilty Until Proven Innocent" (May 11, 1990) New Law Journal 656 at 656 [back]

Prostitutes have reported that clients are often resistant to wearing condoms. See, N. L. Jones, supra, note 20 at 659 [back]

Interview with Maggie's Personnel [back]

Under Bill C-71 an individual may receive a pardon, but only after a certain amount of time has passed. For a summary offence the waiting period is three years from the date the sentence is satisfied (in the case of an absolute discharge the waiting period is one year). Most charges under s. 213 are processed as summary offenses. For an indictable offence the waiting period is five years. Charges made under ss. 210 and 212 are indictable offenses. Pardons are only granted to those no longer involved in criminal activity. Therefore, during the waiting period there can be no evidence that the individual returned to prostitution. However, since most employers will not hire ex prostitutes, this begs the question as to how they will support themselves for the one to five years necessary to satisfy the waiting period. Another concern regarding pardons is that the legislation only applies to the federal level. Therefor only documentation at a federal level is withheld from the public. All provincial and municipal records as to a criminal record may still legally be disclosed to potential employers, lenders or landlords. Usually a request is made by the federal government to the province or municipality involved to voluntarily withhold information on the conviction in question. Should they refuse to do so, it is possible that a Charter challenge could be brought against them. However, to the author's knowledge this has not been tried. Interview with L. Graham, Information Officer, National Parol, Board, Ottawa. See also Facts About Pardon Under the Criminal Records Act (brochure put out by the National Parol Board, Government of Canada) [back]

"The abuse and degradation felt by the prostitute under the current system is much more a part of the arrest-incarceration process than the act of prostitution. Interviews with streetwalkers over a three year period noted arrest and incarceration as the point of diminished self-respect. The actual services of prostitution were "just business"."
-- Jennifer James, on her study Perspectives on Prostitution as quoted in M. K. Griffen, "Wives, Hookers, and the Law: The Case for Decriminalizing Prostitution" (Jan. 1982) 10 Student Lawyer 18 at 36 [back]

Canadian Studies: The Fraser Report, supra, note 15 at 374-375; and Committee on Sexual Offenses against Children and Youth, Sexual Offenses Against Children (Ottawa: Department of Supply and Services, 1984) (Chair: C. Badgley) at 1021.
U.S. Studies: J. James, A Formal Analysis of Prostitution in Seattle, Final Report: Part 1-A. Basic Statistical Summary (1971) (paper prepared for the Division of Research, Dep't of Social and Health Services, Olympia, Washington) at 54; Diversion of Female Offenders, Report on Prostitution 7 (Oct. 1976) and Updated Follow-up Report, January 1-September 30, 1977 at 3 in B. Millman, "New Rules for the Oldest Profession: Should We Change Our Prostitution Laws?" (1980) 3 Harvard Women's Law Journal 1 at 26 -27
Ironically, prostitutes in our society are encouraged to identify themselves as drug addicts, thereby helping to perpetuate one of the stereotypes surrounding them:

"It is a common belief that prostitution and drug addiction go hand in hand, and while this is not a complete picture there is certainly a specific section of the industry in which this is the case... Current publicity encourages those women to identify the drug problem as the cause and root of the state of their lives, but homelessness, unemployment and various other problems such as mild physical disabilities or light mental retardation, dyslexia and so on are often present and contribute to the women's decision to work in prostitution. These other problems are, however, not as fashionable to speak about as heroin addiction. "The moral code which identifies prostitute women as "bad women" encourages many women to say that they would not work as prostitutes were it not for drug addiction. In some sense prostitution is more acceptable or forgivable when accompanied by drug addiction."

quote from submission made by the Prostitutes' Collective to the Inquiry Into Prostitution, Victoria: Final Report (2 volumes) (Melbourne: Government Printer, 1985) (hereafter the Neave Report) at 11 [back]

E. M. Miller, K. Romenesko & L. Wondolkowski, "The United States" in N.J. Davis, ed., Prostitution, An International Handbook on Trends, Problems, and Policies (Westport: Greenwood Press, 1993) 300 at 314 [back]

Taken further, although it is considered a "given" that most prostitutes are drug addicts and in prostitution for that reason, they have less access to drug rehabilitation programs than do "pimps" or "pushers". Drug rehabilitation programs are offered in prison, but only for the long term prisoners. Prostitutes are rarely faced with extensive prison terms, they are usually fined or given a few weeks at the most for a "communicating" conviction (s.213). (The same can be said if convicted of possession of small amounts of narcotics). Trafficking and procuring (s. 212), on the other hand, are indictable offenses and guarantee, upon conviction, a lengthy jail sentence. Although enrolment in a drug rehabilitation program will be considered in place of a jail sentence for a summary conviction, this option is rarely considered by the court unless introduced by the defense. The burden is therefore on the prostitute to be aware of programs that will take him or her and convince the judge that the prostitute is sincerely interested in treatment, not just avoiding a short jail term. -- from interview with F. Odonnell, Crown Counsel [back]

A study of the effectiveness of s. 213 in reducing prostitution in Canada showed that there had been little real change in the three years since the law's creation. This was in spite of the higher arrest rates of both customers and prostitutes which immediately followed the laws enactment.
Department of Justice, Street Prostitutes: Assessing the Impact of the Law (synthesis report) (Ottawa: Department of Justice, 1989) at 76. [back]

N. L. Jones, supra, note 20 at 659 [back]

J. Lowman, "Canada" in N.J. Davis, ed., supra, note 26, 56 at 59-60 [back]

Actually the bawdy house laws can be applied even if technically the place in question is not a "house" at all:
R. v. Pierce (1982), 66 C.C.C. (2d) 388 (Ont. C.A.)
A parking lot can qualify as a common bawdy-house. Any defined space is capable of being a common bawdy-house if there was localization of a number of acts of prostitution within specified boundaries. This includes parking lots. [back]

R. v. Worthington (1972), 22 C.R.N.S. 34, 10 C.,C.C. (2d) 311 (Ont. C.A.)

An accused who used her residence alone for the purpose of prostitution kept a common bawdy-house. [back]

R. v. McLellan (1980), 55 C.C.C. (2d) 543 (B.C.C.A.)
It is the provision of accommodation that is the essence of keeping. If D rented a room in a hotel for a period and took her customer, there for the purposes of prostitution, it could be said that she was providing accommodation for prostitution and was keeping that room. If she had an arrangement to take any one of a number of rooms, that might be enough. [back]

J. Lowman, supra, note 30 at 61. [back]

R. v. Babcock (1974), 18 C.C.C. (2d) 175 (B.C.C.A.)
Where D solicited two men for illicit sexual intercourse, not with herself, but with a girlfriend, she was held to have procured. [back]

While lower court decisions have attached the prerequisite that there be evidence of a "parasitic" relationship before there can be a conviction of living on the avails, (essentially following the reasoning of the dissent by McLachlin J. in R. v. Downey, [1992] 2 S.C.R. 10) what "parasitic" means is still left up to the judge. This puts at risk unemployed partners, older children, friends as well as escort services which provide reasonable employment situations. Interviews with Peter Maloney, Criminal Defense Attorney; D. Lawson, Criminal Defense Attorney and supervising lawyer at Downtown Legal Services and Ray Kuslewski, Criminal Defense Attorney and supervising lawyer at Parkdale Community Legal Services. [back]

The official Children's Aid policy is to keep the child with their parent unless evidence of abuse or neglect is involved. However, if it is known the parent is a prostitute, it is often assumed that living conditions will be unsuitable (e.g. drugs and violence in the home). The burden therefore shifts to the prostitute, once their profession is known, to prove they are acceptable parents. -- interview with Andrea Brodey, intake officer at Children's Aid (Metro Toronto office) [back]

L. Cao, "Illegal Traffic in Women: A Civil RICO Proposal" (1987) 96 The Yale Law Journal 1297 at 1306 [back]

Studies have shown that the majority of adult prostitutes in Canada operate independently. See the Fraser Report, supra, note 15 at 378 [back]

Section 213(1)(c) allows any communication for the purpose of prostitution, no matter how subtle, to be considered a chargeable offence ("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" -- see note 4 for full text of section). On the other hand the general nuisance law, s. 175 -- Causing a Disturbance, Indecent Exhibition, Loitering Etc., is far more limited. Judicial interpretation requires that the disturbance created go beyond mere annoyance or emotional upset (R. v. C.D. (1973), 22 C.R.N.S. 326, 13 C.C.C. (2d) 206 (N.B.C.A.)) and purposeful soliciting by a prostitute does not bring a charge under this section (R. v. Munroe (Mota) (1983), 34 C.R. (3d) 268, 5 C.C.C. (3d) 217 (Ont. C.A.), affirming (1982), 30 C.R. (3d) 263, 1 C.C.C. (3d) 305 (Ont. Co. Ct.) [back]

See S. Moyer & P. Carrington, Street Prostitution: Assessing the Impact of the Law: Toronto (Ottawa: Communications and Public Affairs Department of Justice Canada, 1989) at 44-46 [back]

An example of this is RASP (residents against street prostitution) a residents group in the Parkdale area of Toronto (see Zero Tolerance, a 1993 documentary by Geoff Bowie, for TV Ontario; by 49 North Productions Inc.) [back]

B. Millman, supra, note 25 at 35. [back]

Ibid. at 54-58 [back]

"the red light district in Amsterdam [is] a clean, well lighted place, where three-story prostitution hotels exist side by side with family homes, shops, churches, and restaurants."

B. Hobson, Uneasy Virtue: The Politics of Prostitution and the American Reform Tradition (New York: Basic Books, Inc., 1987) at 226 [back]

A. Jolin, "Germany" in N. J. Davis ed., supra, note 26, 129 at 143 -prostitutes (other than those who are also intravenous drug users) are less likely to transmit AIDs than men who change partners frequently. [back]

Alexander, "Prostitutes Are Being Scapegoated for Heterosexual AIDs," in F. Delacoste & P. Alexander eds., Sex Work (Pittsburgh: Cleis Press, 1987) 248 -- a documentation of American and Central African studies on the prevalence of AIDs antibodies in prostitutes and intravenous drug users. The overwhelming findings were that prostitutes did not show exposure to or infection from AIDs except where they were also intravenous drug users, or had been exposed to unsterilized needles in health clinics. [back]

See P. Scibelli, supra, note 1 at 129 citing American and French studies which found on average between only 5 -15% of prostitutes studied were infected with venereal diseases (AIDS not considered). [back]

"It is men [customers] who generally refuse to use condoms; we have never heard of a woman [prostitute] holding a gun to a man's head and forcing him to have sex without a condom, but we have heard of the reverse." -- Prostitutes' Safe Sex Project (Material received from Maggie's, the Toronto Prostitutes' Community Service Project) [back]

This does not account for all of the money spent on enforcing the prostitution laws, since it does not take into account costs to other squads. All of the major crimes units in each of the force's five districts spend part of their annual resources on prostitution. The major crimes unit in 52 division had an annual budget of $1.4 million in 1993. -- E. Di Matteo & Z. Kashmeri, "Sex/Pot" NOW Magazine (April 8-14, 1993) at 14 [back]

The Violence Against Women Survey, in the Daily , Statistics Canada, Released Nov. 18, 1993 at 1 [back]

Statistics Canada, Canadian Crime Statistics, 1992 (Canadian Centre for Justice Statistics) at 2-49 [back]

Information obtained from Statistics Canada information officer [back]

Breakdown of charges laid in Toronto in 1993,
according to sections:

Keeping a Common Bawdy-House (s. 210)	. . . . .	202
Transporting Person to Bawdy-House (s. 211)	. . . . .	1
Procuring (s. 212)	. . . . .	253
Offence in Relation to Prostitution (s. 213)	. . . . .	2283

Breakdown of charges laid in Ontario in 1993,
according to sections:

Keeping a Common Bawdy-House (s. 210)	. . . . .	269
Transporting Person to Bawdy-House (s. 211)	. . . . .	2
Procuring (s. 212)	. . . . .	397
Offence in Relation to Prostitution (s. 213)	. . . . .	3345

Information received from the Ministry of the Attorney General [back]

Interview with Dorothy Gonsalves-Singh, Caseflow Management Unit, Ministry of the Attorney General, May 5, 1994 [back]

Information received from the Ministry of the Attorney General [back]

Information received from the Ministry of the Attorney General [back]

Interview with Jackie DiSouza, Senior Communications Officer, Ministry of the Solicitor General and Correctional Services [back]

E. & Z. Kashmeri, supra, note 50 at 14 [back]

Interview with Dana Grant, Police Constable, Metro Toronto Police [back]

J. Pearl, "The Highest Paying Customers: America's Cities and the Costs of Prostitution Control" (1987) 38:4 Hastings Law Journal 769 at 780 [back]

J. Lowman, "Prostitution in Vancouver: Some Notes on the Genesis of a Social Problem" (1986) 28 Canadian Journal of Criminology 1 at 6 [back]

Lowman, supra, note 62 at 11 [back]

Lowman, supra, note 62 at 11 [back]

See Street Prostitution: Assessing the Impact of the Law, Synthesis Report (Ottawa: Department of Justice Canada, 1989) at 42 -- Female prostitutes are far more likely to be arrested than male prostitutes (this takes into account that there are more female than male prostitutes). According to the report, police rationalized this in part by saying that male prostitution is less offensive because it is indistinguishable from gay cruising.
As well, studies of solicitation laws which cover both client and prostitute behaviour show that clients are rarely arrested. In the United States, for example, male customers account for only 10% of all arrests.
See P. Alexander, "Prostitution: A Difficult Issue for Feminists." in Sex Work: Writings by Women in the Sex Industry, F. Delacoste & P. Alexander ed.s (Pittsburgh: Cleis Press, 1987) at 196
In Canada an analysis of the enforcement of s. 213(1)(c) has shown that only one third of arrests made are against male customers. see The National Association of Women and the Law, supra, note 19 at 9-10
As the brief points out, because prostitutes can have one to five "dates" a night, if the soliciting law were being enforced equally this should mean that the arrest rate of customers should exceed not just equal the arrest numbers for prostitutes. [back]

See earlier section on ss. 210-212, pages 14-17 of this paper [back]

Some customers appear to feel little compunction about assaulting or stealing from prostitutes, Other people feel entitled to abuse prostitutes verbally, to throw things at them and to indicate that they have no right to be on the streets. - the Fraser Report, supra, note 15 at 393 [back]

See the Fraser Report, supra, note 37 at 350 [back]

M.A. Baldwin., "Split at the Root: Prostitution and Feminist Discourses of Law Reform" (1992) 5 Yale Journal of Law and Feminism 47 at 88-89. [back]

From the "Police Response to Reports of Violence Against Prostitutes" (A Submission by Maggie's to the Metro Committee on the Status of Women) at 3 [back]

Consider the Green River Murders, of Portland Oregon, which have resulted in the murder of 48 women and remain unsolved. There is strong evidence that the police investigation has been lax because the victims are prostitutes. Certainly public attention has been less than in cases where serial killers have targeted "good girls".-- See M. Baldwin, supra, note 69 at 20 [back]

The "Yorkshire Ripper," was a serial killer, in England during the 70s, who at least initially targeted prostitutes but then moved on to "respectable women." In a statement to the press Officer Hobson said:

"He has made it clear that he hates prostitutes. Many people do. We, as a police force, will continue to arrest prostitutes . . . But the Ripper is now killing innocent girls. That indicates your mental state and that you are in urgent need of medical attention. You have made your point. Give yourself up before another innocent woman dies."

-- J. Smith, "Getting Away with Murder," New Socialist, May/June 1982, at 10, 12 [back]

Identification as a "good" girl would also seem to be crucial if one is to receive proper public mourning. The parents of non-prostitute victims of the Yorkshire Ripper told reporters that they feared the memory of their daughters was "tainted" by the fact that the serial killer also killed prostitutes. See M.A. Baldwin, M. Baldwin, supra, note 69 at 87 [back]

It is estimated that only 25% of prostitutes in Canada are male. See the Fraser Report, supra, note 15 at 371 [back]

"A Native hustler near the down town YMCA was assaulted by a police officer who had removed his badge number. The officer asked to see the hustler's ID and then threw it on the ground. When the hustler bent down to pick it up, the officer stepped on his hands . . . one of his hands was broken."
-- excerpt from Submission from Maggie's, the Toronto Prostitutes' Community Service Project, supra, note 70 at 5
See also generally D.J. West, Male Prostitution, (London: Redwood Press, 1992) [back]

Fraser Report, supra, note 15 at 392 [back]

Perkins, supra, note 15 at 1 [back]

communication for the purpose of prostitution, see note 5 for full text of section [back]

bawdy house, procuring and living on the avails of prostitution laws -- see notes 6, 7 & 8 for full texts of sections [back]

Acting as an independent escort is currently considered a legal activity, so long as the prostitute goes to the clients residence or hotel rather than his or her own. However arguments have been made that the use of a specific phone number for business reasons (e.g. using ones home phone to make "dates") could be enough to charge the independent operator with operating a bawdy house. Interview with Peter Maloney, criminal defense lawyer. [back]

It is a summary offence under s. 210 to be the inmate of a bawdy house. [back]

See breakdown of charges laid in Toronto and Ontario, note 54. The vast majority of them are for communication offenses. Since it is believed most prostitutes are in fact indoor workers (see note 84) this means that the risk of arrest for a street prostitute is substantially higher than for an "indoor" worker. [back]

See National Association of Women and the Law, supra, note 19 at 6 [back]

Since there is no way to take a census of indoor prostitutes it is difficult to calculate what their precise number is. However, several studies have estimated that street prostitutes make up only roughly 10% of the total prostitute population in North America (E. Miller, K. Romenesko & L. Wondolkowski, "United States" in N.J. Davis, ed., supra, note 26 at 313). Estimates of the number of street prostitutes in Toronto vary from 1,200 to 2,000, (Moyer, supra, note 41 at 238; note that these are 1984 statistics and that since the start of the recession, street prostitution is believed to have increased. These numbers then are probably low -- information received from Maggie's personnel). This puts the number of indoor prostitutes anywhere from 12,000 to 20,000. By "indoor" this can include working independently from a residence, taking "out calls" independently by phone, working for an escort service or massage parlour. [back]

See E.M. Miller, K. Romenesli & L. Wondolkowski, supra, note 26 at 320 [back]

In a study of Vancouver from 1974-1978, it was noted "charges against prostitutes, particulary soliciting, were often traded off for information relating to other areas of criminal investigation." -- J. Lowman, supra, note 62 at 2 [back]

In this case "visible" is defined not as perceptible generally but "visible" in the sense that prostitution occurs in such a way as to be brought to the attention of a powerful group or class of non prostitutes. Such a group is powerful either because it is part of government already such as the police or municipal officials or is a financially or politically influential part of the mainstream, such as middle or upper middle class tax payers. [back]

See earlier section regarding costs of sex club closures, pages 23-24 of this paper. [back]

J. Lowman, supra, note 62 at 8-9 [back]

For police and political figures, there is a great deal of incentive to push for tougher criminal laws. In both cases, they are seen as an easy way to please the public, giving the appearance that the police and government are taking direct and uncompromising action to correct the problem. Consider for example the then Mayor of Montreal, Jean Drapeau, who owed his first electoral victory to a widespread "morality" investigation which led to reform practises. (Special Committee on Pornography and Prostitution, Report on Prostitution in Quebec, by R. Gemme, A. Murphy, M. Bourque, M. Nemeh & N. Payment (Ottawa: federal Department of Justice, June 30, 1984) at 36) With that kind of past experience it is only natural that politicians prefer criminalization. [back]

See C.H.S. Jayewardene, T.J. Juliani & C.K. Talbot, "Prostitution and Pornography in Selected Countries" (Working Paper on Prostitution and Pornography #4, commissioned for the Fraser Committee by the Department of Justice, 1984) at 195 This report looked at Poland, Yugoslavia, Hungary, Venezuela, Panama, Chile, Argentina, Sri Lanka, Japan, Singapore and various Arab Countries and concluded
See also generally N.J. Davis ed., Prostitution: An International Handbook on Trends, Problems, and Policies (Westport, Connecticut: Greenwood Press, 1993) an anthology of reports on prostitution in Australia, Brazil, Canada, China, England and Wales, Germany, Italy, Japan, The Netherlands, Norway, Portugal, Singapore, Taiwan, The United States, Vietnam and Yugoslavia all of which reached the same general conclusion. [back]

see G. Bowie, supra, note 42 [back]

Ironically, RASP while calling for tougher criminal sanctions against prostitution objects to social programs of any kind, if they are in the Parkdale neighbourhood. Residents feel that such programs attract "undesirables," ignoring the fact that the "undesirables" were in Parkdale long before the new residents arrived, and are kept in a state of "undesirability" by the fact that there are few economic or social options open to them. This calls into question just how effective recommendations like those of the Standing Committee or the Wilson Task Force will be. If these reform packages are based on the idea that tough criminal sanctions will be balanced by generous social programs, the reforms would seem to be doomed to failure, since the same pressure which pushes criminal laws through will resist the social programs. [back]

Parkdale area councillor Chris Korwin-Kuczynski has been cited as being in favour of a "zone of tolerance" in a non residential area. E. Di Matteo, supra, note 50 at 14 [back]

supra, note 15. [back]

see generally J. McLaren, "The Fraser Committee: The Politics and Process of a Special Committee" in J. Lowman, M.A. Jackson, T.S. Palys & S. Gavignan, eds., Regulating Sex: An Anthology of Commentaries on the Badgley and Fraser Reports (Burnaby, B.C.: School of Criminology, Simon Fraser University, 1985) 40 [back]

the Fraser Report, supra, note 15 at 535-542 [back]

see A. Jolin, "Germany" in N.J. Davis ed., Prostitution, at 129; P. Scibelli, supra, note at 145-148; and B. Cooper, "Prostitution: A Feminist Analysis" (1989) 11:2 Women's Rights Law Reporter 99 at 109-112 [back]

R. Perkins, supra, note 15 at 111 [back]

M. Neave, "The Failure of Prostitution Law Reform" (1988) 21 Australian and New Zealand Journal of Criminology 202 at 203 [back]

"The form of the prostitution industry has also been influenced by the reluctance of local councils to be seen to be condoning prostitution by granting planning permits to brothels. Most applicants gain their permits after an appeal to the Administrative Appeals Tribunal." -- Ibid. at 211
Besides refusing permits, town councils have also sought to discourage brothels by attempting to institute by laws which make operation of a brothel a practical impossibility. The Camberwell Council enacted by laws which included a $50 registration fee for all staff, compulsory medical checks, the posting of signs warning clients of the risk of disease and a million dollar public liability insurance policy. The regulations were challenged as contrary to government policies and contrary to the National HIV strategy. (The case went to the Supreme Court but the author has no data at this time as to its outcome.)
Ironically the regulations were rationalized as necessary for the protection of sex workers health and safety, yet the initial permit was granted to the brothel in question without any requirements as to a private rest area or kitchen facilities for the workers, who are forced to sit on the steps during breaks and wash their coffee mugs in the one bathroom shared by workers and clients alike.
See S. Dobinson, "Victorian Situation with Legalisation" paper presented at Sex Industry and Public Policy, Conference held by the Australian Institute of Criminology, May 6-8, 1991 at 5 [back]

M. Neave, supra, note 100 at 211 [back]

Prior to 1984 there were 150 brothels in Victoria, as of 1990 there were 58. See S. Pinto, A,. Scandic and P. Wilson "Prostitution Laws in Australia" in P. Wilson ed., Trends and Issues in Crime and Criminal Justice, No. 22 (Australian Institute of Criminology, May 1990)

Estimates of the number of prostitutes currently in Victoria range from 2,000 to 4,500. The legal brothels can employ approximately 500 of them. See R. Perkins, supra, note 15 at 124 and S. E. Hatty, "Australia" in N.J. Davis, ed., supra, note 26, 56 at 21 [back]

S. Pinto, A,. Scandic and P. Wilson, supra, note 103 at 5 [back]

R. Perkins, supra, note 15 at 124 [back]

S. E. Hatty, supra, note 103 at 21
The Prostitutes Collective of Victoria has sought to prosecute brothel owners who refuse to pay the Workcare levy (the percentage each employer must pay to the Australian equivalent of Workers Compensation) or have coerced their employees into signing away their rights. The PCV has had little success to date because coercion and blacklisting by management makes it very difficult for workers to follow through with a claim. As well, the Prostitutes Collective of Victoria is banned from many brothels by employers, in an effort to prevent workers from learning about their civil and industrial rights. See S. Dobinson, supra, note 101 at 6 [back]

Working Girl, 1990 , No. 9 at 2, cited in S. E. Hatty, supra, note 103 at 21 [back]

Vagrancy Act, s. 10 [back]

See earlier section detailing difficulties of escort work, pages 20-30 of this paper [back]

More than half of the street workers interviewed during the Neave Inquiry reported they had been sexually assaulted in the course of their work, often incurring serious injury.
-- Neave Report, supra, note 25 at 49 [back]

S. E. Hatty, supra, note 103 at 22 [back]

Ibid. at 33-34 [back]

The legislation besides its other faults was poorly thought out. For instance, the old offence of "living on the earnings" is still effective, which results in the odd situation of a husband or child over the age of 18 being subject to criminal charges while the owner of a licensed brothel is not. As well, it remains an offence for a prostitute to use premises for habitual prostitution if those premises do not have a planning permit. This is so despite the fact that she may have had no idea that a permit had been refused or cancelled or had been lied to by the owner as to the legality of the establishment. See M. Neave, supra, note 100 at 210 [back]

S. Dobinson, supra, note 101 at 1 [back]

The Neave Inquiry, supra, note 25, was the Victorian counterpart to the Fraser Report, supra, note 15. Like the Fraser Report it was formed to investigate prostitution in Australia and submit suggestions for reform. Oral and written submissions were received from interested parties and incorporated into the final report: Inquiry into Prostitution, Victoria: The Final Report (2 Volumes) (Melbourne: Government Printer, 1985) [back]

Submission by the Prostitutes Collective of Victoria, quoted in the Neave Report, supra, note 25 at 184 [back]

Ibid. at 184 [back]

S. Dobinson, supra, note 101 at 2 [back]

Ibid. at 7 [back]

The Government is currently considering possible reform measures, a report on the matter was due to be released in March, however the author has not received a copy to date. [back]

"decriminalization" in this context means the repeal of all criminal laws dealing specifically with prostitution. This system will be more closely considered in the next section. [back]

see Study in Traffic in Persons and Prostitution (Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others) U.N. Department of Economic and Social Affairs, U.N. Doc. St./SOA/ SD/8 (1959)
Canada is not a signatory. See the Fraser Report, supra, note 15 at 556-7 [back]

In 1987, the International Abolitionist Federation entitled their 29th congress "Prostitution: A World Problem, A Threat to Humanity" -- see G. Pheterson, "Not Repeating History" in G. Pheterson ed., A Vindication of the Rights of Whores (Seattle: The Seal Press, 1989) 3 at 14 [back]

V. Bullough & B. Bullough, Women and Prostitution: A Social History (Buffalo: Prometheus Books, 1987) at 287 [back]

There are several examples of jurisdictions where abolitionism is theoretically in place, such as France and New South Wales, Australia. However, in practice general nuisance laws are used to criminalize independent prostitution. See P. Scibelli, supra, note 1 at 149-150 and R. Perkins, supra, note 15 at 142-143. This will be dealt with in the section on decriminalization. [back]

Signatories to the Convention for the Suppression of the Traffic in Person and of the Exploitation of the Prostitution of Others agree to punish any person who, to gratify the passions of another:
1. Procures, entices or leads away, for purposes of prostitution, another person, even with the consent of that person;
2. Exploits the prostitution of another person, even with the consent of that person. (Article 1)
The parties to the present convention further agree to punish any person who:
1. Keeps or manages, or knowingly finances or takes part in the financing of a brothel;
2. Knowingly lets or rents a building or other place or any part thereof for the purpose of the prostitution of others. (Article 2)
As quoted in G. Pheterson, supra, note 123 at 13. For a detailed criticism of abolitionism on the part of prostitutes' rights groups see G. Pheterson, supra, note 123 at 10-17 [back]

See section on ss. 210-212 at pages 14-17 of this paper

Misuse of procuring, living on the avails and bawdy house laws would appear to be universal. The problems enumerated earlier in the Canadian context can all mbe found in Australia, Europe, the U.S. and Scandinavia. See generally N.J. Davis ed., supra, note 26
In particular the Prostitute Collective of Victoria has also spoken out against the "living off the earnings" as ultimately detrimental to prostitutes:
"Living of the earnings of a prostitute" is an outdated law which has to go. It creates a situation where sex workers cannot choose how to dispose of their own income. There are stories of people who have been bought cups of coffee by workers and have been charged. It would also make escort a lot safer, as safe sex and all the other aspects of your service are negotiated before you arrive at the job. The agency would actually be able to openly discuss the booking and admit to the provision of sex in return for money. -- "Working in the Sex Industry" in Respect Magazine, Self-Health for Queensland Workers in the Sex Industry, Issue # 17, Sept, 1993 at 19 [back]

see note 6 for full text of section [back]

See note 7 for full text of section [back]

see note 8 for full text of section [back]

The majority of the Fraser Committee was not satisfied that the more general Criminal Code provisions were adequate to take account of "the relational exploitation which is apparent in prostitution. Offenses such as assault, kidnapping and extortion tend to concentrate upon single incident criminality." the Fraser Report, supra, note 15 at 536 [back]

Ibid. at 545 [back]

EXTORTION
-- punishment -- saving
Section 346. [305]
1. Every one commits extortion who, without reasonable justification or excuse and with intent to obtain anything by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done.
  1. Every one who commits extortion is guilty of an indictable offence and liable to a maximum term of imprisonment for life.
    [added since Fraser report came out, old sentence was 14 yrs]
2. A threat to institute civil proceedings is not a threat for the purposes of this section. [back]

s. 346 (1) -- "Everyone commits extortion who ... by threats ... attempts to induce any person, whether or not he is the person threatened ... to do anything or cause anything to be done." [back]

R. v. Swartz (1977), 37 C.C.C. (2d) 409 (Ont. C.A.), affirmed on other grounds (1979), 7 C.R. (3d) 185, 45 C.C.C. (2d) 1 (S.C.C.)
It is not necessary that D threaten to personally injure the victim. Furthermore, a false representation by the accused of a threat by a third party is sufficient to constitute the offence. [back]

R. v. Bird (1969), 9 C.R.N.S. 1, [1970] 3 C.C.C. 340 (B.C.C.A.)
The word "anything" is not restricted to some tangible material thing, but may cover the extortion from a woman of the use of her body for sexual intercourse. [back]

ASSAULT
-- Application -- Consent -- Accused's belief as to consent.
Section 265. [244]
1. A person commits an assault when
  1. without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
  2. he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
  3. while openly wearing or carrying a weapon or an imitation thereof he accosts or impedes another person or begs.
2. This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
3. for the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
  1. the application of force to the complainant or to a person other than the complainant;
  2. threats or fear of the application of force to the complainant or to a person other than the complainant;
  3. fraud; or
  4. the exercise of authority.
4. Where an accuse alleges that he believed that the complainant consented to conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence of absence of reasonable grounds for that belief. R.S., c. C-34, s. 244; 1974-75-76, c. 93, s. 21; 1980-81-83, c. 125, s. 19. [back]

the Fraser Report, supra, note 15 at 544 [back]

KIDNAPPING
-- Forcible confinement -- Non-resistance.
Section 279
1. Every one who kidnaps a person with intent
  1. to cause him to be confined or imprisoned against his will,
  2. to cause him to be unlawfully sent or transported out of Canada against his will, or
  3. to hold him for ransom or to service against his will, is guilty of an indictable offence and liable to imprisonment for life.
2. Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
3. In proceedings under this section, the fact that the person in relation to whom the offence is alleged to have been committed did not resist is not defence unless the accused proves that the failure to resist was not caused by threats, duress, force or exhibition or force. R.S., c. C-34, s. 247; R.S. 1985, c. 27 (1st Supp.), s. 39 [back]

R. v. Metcalfe (1983), 10 C.C.C. (3d) 114 (B.C.C.A.), leave to appeal refused (1984), 54 N.R. 320n (S.C.C.)
It is not necessary that V be forcibly conveyed to his place of confinement. It is sufficient if he is induced by fraud to accompany D.
R. v. Robertson (1982), 39 A.R. 273 (Alta. C.A.)
The absence of a demand for ransom or any other demand is irrelevant.
R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.), leave to appeal refused (1985), 18 C.C.C. (3d) 462 (S.C.C.)
Confinement does not require proof of total physical restraint of the victim. Furthermore, for the offence of unlawful confinement to be committed it was not necessary for the victim to have been confined foe the entire time that she was together with D. If she was restrained against her wishes for any significant period of time, then a confinement had taken place.
R. v. Lemaigre (1987), 56 Sask. R. 300 (C.A.)
Confinement consists of restricting V's liberty but not V's ability to escape. It is not necessary that V be restricted to a particular place. [back]

the Fraser Report, supra, note 15 at 536 [back]

This would hardly be surprising since Abolitionism is based on the idea that prostitution is intrinsically evil.

"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."

-- Preamble to the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, as quoted in G. Pheterson, supra, note 123 at 14 [back]

(Special Committee on Pornography and Prostitution, Report on Prostitution in Quebec, by R. Gemme, A. Murphy, M. Bourque, M. Nemeh & N. Payment (Ottawa: federal Department of Justice, June 30, 1984) at 93
No explanation is given as to how they now that individuals charged under general nuisance laws or the more serious assault or extortion offenses would only be occasional offenders, or why anyone whose conduct would merit such charges would need to be protected from the "unfair pressures" of being associated with prostitution. [back]

In fact prostitution, as a crime, is looked down upon by the criminal community at large - prostitutes being considered at the bottom of the prison hierarchy by other inmates. -- M. K. Griffen, supra, note 24 at 20
Consider also the anecdotal evidence of Fran O'Leary, a convicted thief, former prostitute and political activist. She was contacted by American Express, which wanted her to do an add, on what thieves look for when selecting a victim. The offer was withdrawn however when the company discovered she also had a history of prostitution. As O'Leary put it, the vice-president "didn't think it would be nice to have an ex-hooker represent American Express. But they wanted a convicted felon." -- Ibid. at 36 [back]

see G. Pheterson, supra, note 123 at 10-17 [back]

The Fraser Report, supra, note 15 at 536 [back]

The Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution (1963) (Chair: Lord Wolfenden) as cited in J. Quigley, "The Dilemma of Prostitution Law Reform: Lessons From the Soviet Russian Experiment" (1992) 29 American Criminal Law Review 1197 at 1229 [back]

Lord Wolfenden (1958) as quoted in Soliciting for Change (Nottingham: Josephine Butler Trust, 1993) at 10 [back]

R. Perkins, supra, note 15 at 157 [back]

In France currently Articles R34 ("public display conduct likely to lead to debauchery") and R40 ("penalizing anyone who publicly solicits a person of either sex in order to incite them to debauchery") of the French Penal Code are used to control street solicitation. Although clearly aimed at prostitutes, these are technically general morality laws presumably because no mention of payment for sex is made. See P. Scibelli, supra, note 1 at 149-150
New South Wales, Australia briefly decriminalized all street solicitation from 1979-1983. However, police continued to arrest prostitutes under the Offences in Public Places Act 1979 which allowed charges to be brought against anyone in a public place who conducted themselves "in such a manner as would be regarded by reasonable persons as being, in all circumstances, offensive". See R. Perkins, supra, note 15 at 142 [back]

Soliciting for Change, supra, note 148 at 8-9 [back]

In New South Wales, Australia in the early 80s, although it was considered legal for individual prostitutes to operate out of their residences, municipal councils enacted by-laws which prohibited commercial activities in residentially zoned areas, or where there was a contravention of the zoning regulations in the Environmental Planning and Assessment Act. R. Perkins, supra, note 14 at 143 [back]

"Working Paper on Prostitution in Quebec" (Fraser report) at 93: [back]

Under s. 92(15) of the Constitution Act 1867, provinces have the power to impose "punishment by fine, penalty or imprisonment" for the purpose of enforcing otherwise valid provincial laws. There is no limit to the severity of the penalty which may be imposed so long as the law is not perceived as trespassing on the federal jurisdiction under s. 91(27). See P. W. Hogg, Constitutional Law of Canada (3rd ed.) Volume 1 (Toronto: Carswell, 1992) at 18-28 - 29 [back]

The Supreme Court has not been sympathetic regarding the "right" to practice prostitution. If prostitution were to be decriminalized and provinces took a militant stance against it, it is possible that the Supreme Court would do little to stop it under either a federalism or Charter argument. The only justices who have shown sympathy in this regard have been women (Wilson J. dissenting in Reference re Sections 193 & 195.1(1)(c) of the Criminal Code (Canada), [1990] 1 S.C.R. 1123 and McLachlin J. and L'Heureux-Dube J. dissenting in R. v. Downey, [1992] 2 S.C.R. 10 ). It may be that prostitution will not come into its own at the Supreme Court level until the majority of the court is female. See D. Gibson, "Pimps, Presumptions and Predatory Laws: R. v. Downey" (1992) 71 The Canadian Bar Review 725 and M.L. McConnell, "Protecting Public Places: Prostitution, Pollution and Prohibiting a "Perfectly Legal" Profession" (1991-92) 1 National Journal of Constitutional Law 197 [back]

R. Perkins, supra, note 15 at 369-370. [back]

See the Neave Report, supra, note 25 at 16, 64, 129, 178, 184, 303, 389, 447, 450 & 454 [back]

Ibid. at 361 [back]

the Prostitution Act s. 8A[1] [back]

Ibid. at 361-362, escort work is not mentioned, it may have been legal at the time. Unfortunately the recommendations were not adopted by the New South Wales Government. [back]

In the Netherlands the Predominant prostitutes' rights group, the Red Thread, has a sub organization, the Pink Thread, which is specifically aimed at bridging the gap between feminists and sex workers. See C. Sterk-Elison & C. A. Campbell, "the Netherlands" in N.J. Davis ed., supra, note 26, 191 at 203.

As well, the International Committee for Prostitutes' Rights has been instrumental in broadcasting the realities of prostitutes' lives to the rest of the world through their internationally held conferences. See generally, G. Pheterson, supra, note 123 [back]

The German prostitutes' rights organization Prostitution Projekt Hydra, with the political support of the Green Party has long fought the legal inconsistencies which surround prostitutes. While prostitution is taxed in Germany, prostitutes receive none of the benefits normally accorded tax payers. In particular, German law promises state-funded retraining for people who have worked and paid social security taxes for a minimum of two years. However, prostitutes while paying the social security tax have never qualified for the benefit. Hydra has successfully challenged this law in court. -- see A. Jolin, supra, note 46 at 149-150 [back]

see Maggie's, The Toronto Prostitutes' Community Service Project has been active in monitoring police violence against prostitutes. See Maggie's, supra, note 70 [back]

The "Prostitutes' Safe Sex Project" a sub-group of Maggie's has been instrumental in bringing AIDs education and condoms to the street workers in Metro Toronto. In 1990 they distributed 10,906 condoms in 2,815 women and men working in the sex trade. In 1991/1992 this number increased to 24,387 condoms in 3,801 individual contacts (for an increase of 123% & 35% respectively). They also produce "bad trick" sheets, which give detailed descriptions of violent dates reported by prostitutes. Copies of these are made available to sex workers in the hopes that this will help them avoid violent encounters. Maggie's is currently working on a legal primer, which will detail the criminal law and how it effects prostitutes in easy to understand language. As well, they have instigated out reach programs for prostitutes going through the court system, substance abuse and prostitutes living with AIDS. Maggie's has been quite successful in reaching prostitutes, since Maggie's outreach workers are prostitutes themselves, they are not viewed as either threatening or condescending. -- see Maggie's: The Toronto Prostitutes' Community Service Project, Annual Report (1991/1992) at 5-14 [back]

See S. Hatty, supra, note 103 at 38-40
In Toronto, Maggie's was initially formed as an AIDS education program. See Maggie's, supra, note 163 at 4 [back]

See Fraser Report, supra, note 15 at 367-370. [back]

"For contemporary feminists, the sexual commodification of women creates an uneasy tension between a desire to suppress the trade and a desire to free prostitutes from state interference. On the one hand, prostitution represents the pole of a system of sexual stratification and must be resisted as the quintessential form of men's exploitation of women (and children of both sexes). Prostitution is the raw end of patriarchy. On the other hand, prostitution raises the civil libertarian issue of the individual woman's -- or man's -- right to sovereignty over her/his body. If there are no other satisfactory options available in what is essentially a male dominated world, women (and men) should have the right to sell sexual services unencumbered by the criminal law. Thus, to argue for the right to prostitute is not to condone the commodification of sex in any absolute sense, but to acknowledge it prevalence and resilience in a gender and class stratified society.
The tension between these two arguments may explain why some feminist groups have been less than supportive of prostitutes. In Vancouver, prostitute organizers have complained that they are appalled by the lack of support they receive from local women's groups." -- J. Lowman, supra, note 16 at 193 [back]

In the U.S. the most prevalent prostitutes' rights group, COYOTE has had little success in achieving its goals of legislative reform. This has been attributed, in part, to the groups failure to receive anything beyond token support from the more politically influential American Civil Liberties Union or the National Organization of Women. Robert Weitzer points to a resistance on the part of American feminists to appear to endorse prostitution, preferring instead to concentrate on improving conditions for women generally in the hopes that one day prostitution will simply cease to exist. see E. Miller, K. Romenesko & L. Wondolkowski, supra, note 26 at 324
In Canada, feminists made almost no submissions to the Fraser Committee regarding adult prostitution, in contrast to the large number of submissions made on the subject of pornography. see Fraser Report, supra, note 15 at 345. [back]

Table of Contents

Created: November 23, 1995
Last modified: November 14, 1998

Commercial Sex Information Service
Box 3075, Vancouver, BC V6B 3X6
Tel: +1 (604) 488-0710
Email: csis@walnet.org

Prostitution in Canada: The Invisible Menace or the Menace of Invisibility?

Table of Contents

Introduction

I. Canada and Criminalization

I: 1. The Failure of Criminalization

I: 1a. How Criminalization Fails to Protect Prostitutes from Harm

I: 1b. How Criminalization Fails to Protect the Public From the "Effects" of Prostitution

I: 2. Why Criminalization Remains Popular

I: 3. Conclusions Regarding Criminalization

II. Regulation (Victoria, Australia)

II: 1. Regulation and the Fraser Report

II: 2. Regulation and Victoria, Australia

II: 3. What Can be Learned From Victoria

III. Abolitionism

Recommendation 59 of the Fraser Report

IV. Total Decriminalization

IV: 1. The Importance of Local Authorities Regarding the Success of Decriminalization

IV: 2. Strengthening Prostitutes' Rights Groups as the Key to Successful Reform

References

Section 213.1

Section 210

Section 211

Section 212

Section 346. [305]

Section 265. [244]

Section 279

Prostitution in Canada:
The Invisible Menace or the Menace of Invisibility?

I: 1b. How Criminalization Fails to Protect
the Public From the "Effects" of Prostitution

IV: 1. The Importance of Local Authorities
Regarding the Success of Decriminalization

IV: 2. Strengthening Prostitutes' Rights
Groups as the Key to Successful Reform