Université du Québec a Montréal,
September 27-29, 1996

Technical note #II
The current legal framework in Canada

1. Prostitution (street prostitution, escort services, massage parlours and bawdy houses)

• The act of prostitution, that is the exchange of sexual favours for money, is not and never has been illegal in Canada; or is legal in Canada

• Currently, the Criminal Code makes illegal many of the activities which relate to prostitution, such as:

• communicating in a public place for the purposes of prostitution (s. 213c);

• providing directions, taking or showing someone to a common bawdy house (s.211);

• procuring (to obtain for another, a person for sexual services) (s.212);

• living on the avails (benefits) of prostitution (s212)

• In 1985, the Special Committee on Pornography and Prostitution (the Fraser Committee), recommended partial decriminalization of the activities related to prostitution involving adults (safe for the provisions on exploitation) and its regulation at the municipal level. None of the Committee's recommendations were adopted by Parliament.

• Bill C-49: Instead, the Minister of Justice introduced amendments (Bill C-49) to the Criminal Code to further strengthen the provisions against street prostitution. The goals of Bill C-49, adopted by Parliament in December 1985, were to (1) reduce the level of street prostitution; (2) treat the clients in the same manner as prostitutes; and (3) facilitate police investigations into prostitution.

• an evaluation clause was included in the Bill, providing for its mandatory review after three years or operation. The results of this evaluation are presented in Technical note # 3.

• Municipalities cannot, at present, regulate prostitution related activities since they would then infringe on the exclusive powers of the federal government over criminal matters (as confirmed by the Supreme Court of Canada decision in Westendorp v. the Queen, 1983). In the same vein, regulatory schemes could likely not criminalize prostitution indirectly.

Sources:

Achilles, R., (1995) The Regulation of Prostitution, Report prepared for the Toronto City Board of Health, April 14, 1995.

Canada (1995) Pornography and Prostitution in Canada, Ottawa: Supply and Services, 2 vols.

Maggie's (1995) Trick of Trap? Toronto: The Toronto Prostitutes' Community Services Project.

Maggie's (1995) No Bawdy's Business. (see above)

2. Nude dancing:

• Not illegal unless there is contact between dancer and client, which then becomes an indecent act under the Criminal Code. However, there is some degree of uncertainty at this time as to whether this type of contact is illegal until the Supreme Court renders judgement in several pending cases. Under the "obscenity" provisions of the Criminal Code, nude dancing has been considered not illegal because it does not exceed the community standards of tolerance.

• Municipalities can regulate behaviour of dancers and customers through the Liquor Control Acts and municipal regulations. Some attempts to regulate exterior signs (eg. in Montreal) have been ruled to contravene the Canadian Charter of Rights and Freedoms.

3. Pornography

• At the federal level: When considering the production of pornography, there are no specific laws governing filmmaking or nude modeling for magazines, except where general provision of the Criminal Code apply (e.g., indecent acts if nudity in public, assault, etc.). Other federal laws governing Customs, Canada Post and broadcasting and telecommunications can be used to control the distribution of pornography.

• The provincial film control boards have powers over the manner of distribution of films, film censorship (of parts considered obscene), and the classification of films.

• Municipal by-laws can be used to control the display of magazines to a certain degree.

(For further information, see: Fraser Committee Report, Canada (1985))

4. Telephone and other electronic erotic services