Canada's first laws aimed at controlling sex work were brought to English-speaking Canada directly from Britain. These were the vagrancy laws of the Nova Scotia Act of 1759. Various modifications were introduced in the 19th century prior to the creation of the first Canadian Criminal Code, published in 1892. It is this same Criminal Code upon which today's criminal laws regarding sex work are based.30 According to these laws, it is legal for adults to sell sex for money. What is illegal, however, are many of the behaviours and circumstances associated with sex work. It is illegal

• to communicate in a public place (this is true for the customer as well as the prostitute) for the purpose of engaging in prostitution;31

• to keep or be an inmate of a common bawdy-house;32

• to provide directions, take or show someone to a common bawdy-house;33

• to procure or assist or obtain a person for sexual services on behalf of a third party. This includes "procuring a person to have illicit sexual intercourse with another person," "procuring a person to become a common prostitute" and "procuring a person to enter or leave Canada for the purpose of prostitution" (the latter provisions are not aimed at prostitutes but are designed to prevent persons from being forced into a life of prostitution);34

• to live on the avails or benefit from the prostitution of another person;35 and

• to purchase or offer to purchase sexual services from someone under 18 years old.36, 37

Other sections of the Criminal Code which have been used to control some of the public nuisance related to sex work in Canada38 include those which refer to performing indecent acts,39 causing a disturbance,40 loitering and obstruction41 and trespassing by night.42

In essence, "the law is silent on when and under what conditions prostitution is allowed to occur."43

Vag-C: Discriminatory legislation

Establishing the legal history of male sex work in Canada is difficult. Prior to 1972, the section of the Canadian Criminal Code designed to control street sex work was sexist and highly discriminatory against women. By definition, a prostitute was considered a female and men were immune from the law when selling sex for money. This changed in 1972, when a law known as Vag-C, or the soliciting law, was repealed, and a law prohibiting soliciting was added to the Criminal Code.44 Now, male sex workers could be prosecuted. In 1973 the terms "male prostitute" and "male prostitution" were first applied in the federal courts of British Columbia, where, in a precedent-setting ruling, a male sex worker (dressed as a woman) was first convicted.45

Bill C-49: The communicating law

In 1985, a new law was passed by the federal government. Bill C-49,46 or the communicating law, was an amendment (or, as some believe, a rewrite) to the soliciting law. Among other things, this was an attempt to equalize the enforcement of these laws between men and women. It includes the term every person, meaning that not only could both men and women be charged with prostitution-related offences, but both sex worker and client could be as well.47 In terms of male sex work, some believe that Bill C-49 was unsuccessful because male sex work was a relatively small industry and often difficult to distinguish from gay cruising.48

Although these amendments were first made in the early 1970s, and later in the mid-1980s, the laws have never been applied in the same way to male sex workers as they have been to female sex workers. A Halifax report published in 1989 found that charges against male sex workers made up only 11% of all charges laid against sex workers in Halifax. These findings contradict statements made by local police authorities, who reported that the laws were applied equally to male and female sex workers and their clients. Graves (1989) wrote that this discrepancy was "not altogether surprising given the uneasiness around homosexuals traditionally expressed by the police."49

And under Bill C-49 female sex workers were still charged more frequently than male sex workers. For example, one study found that female sex workers were charged, on average, twice a year, whereas male sex workers were charged less than once every two years.50 In Toronto, a sample of arrests showed that 17 times as many female as male sex workers were charged during 1986-87.51

Literature from Montreal's International Conference on Prostitution and Other Sex Work (1996) indicates that a female sex worker will be arrested an average of 1.37 times per year, compared to 0.37 times for a male sex worker. In Montreal, for example, between 1986 and 1991, 6,493 female sex workers were arrested, compared to 1,746 male sex workers.52

Footnotes

30. Lowman, J., "Prostitution in Canada," in Jackson, M. A., Griffiths, C. T. and Hatch, A., eds., Canadian Criminology: Perspectives on Crime and Criminality, Toronto, Harcourt Brace Jovanovich, 1991. [back]

32. Section 210.

33. Section 211.

34. Section 212.

35. Section 212.

36. Section 212(4).

37. See MacDonald, N. E., Fisher, W. A., Wells, G. A., Doherty, J. A. and Bowie, W. R., "Canadian Street Youth: Correlates of Sexual Risk-Taking Activity," Pediatric Infectious Disease Journal, 1994, 13, 8, pp. 690-97; Federal-Provincial-Territorial Working Group on Prostitution, Dealing With Prostitution in Canada: A Consultation Paper, Ottawa, Department of Justice, 1995a; International Conference on Prostitution and Other Sex Work, Participation Kit, Montreal, Quebec Public Interest Research Group at McGill University, 1996; Federal-Provincial-Territorial Working Group on Prostitution, Report and Recommendations in Respect of Legislation, Policy, and Practices Concerning Prostitution-Related Activities, Ottawa, Department of Justice, 1998; see also the work of John Lowman.

38. See Federal-Provincial-Territorial Working Group on Prostitution, Report and Recommendations in Respect of Legislation, Policy, and Practices Concerning Prostitution-Related Activities, Ottawa, Department of Justice, 1998.

39. Section 173.

40. Section 175.

41. Section 175.

42. Section 177.

43. Federal-Provincial-Territorial Working Group on Prostitution, Report and Recommendations in Respect of Legislation, Policy, and Practices Concerning Prostitution-Related Activities, Ottawa, Department of Justice, 1998., p. 4.

44. Section 195.1.

45. See R. v. Obey, 1973; Willmot, J., The Osgoode Women's Caucus Brief on Prostitution, Toronto, Osgoode Hall, 1980-81; also National Association of Women and the Law, Position Paper of the Montreal Association of Women and the Law on Soliciting, Montreal, National Association of Women and the Law, 1980.

46. Now section 213.

47. See Federal-Provincial-Territorial Working Group on Prostitution, Report and Recommendations in Respect of Legislation, Policy, and Practices Concerning Prostitution-Related Activities, Ottawa, Department of Justice, 1998.

48. Minutes of the Proceedings and Evidence of the Legislative Committee on Bill C-49 for October 10, 1985, p. 42, cited in National Association of Women and the Law, Prostitution: Bill C-49, Four Years Later, Ottawa, National Association of Women and the Law, 1989, p. 10.

49. Graves, F., Street Prostitution: Assessing the Impact of the Law, Halifax, Ottawa, Department of Justice, 1989, p. 50.

50. See Fleischman, J., The Evaluation of the Street Prostitution Legislation: A Summary of Research Findings, Ottawa, Department of Justice, 1989; Gemme, R. and Payment, N., "Criminalization of Adult Street Prostitution in Montreal: Evaluation of the Law in 1987 and 1991," Canadian Journal of Human Sexuality, 1992, 1, 4, pp. 217-20, cited in International Conference on Prostitution and Other Sex Work, Participation Kit, Montreal, Quebec Public Interest Research Group at McGill University, 1996.

51. Achilles, R., The Regulation of Prostitution, background paper presented to the City of Toronto Board of Health, Toronto, City of Toronto Public Health Department, April 24,1995.

52. International Conference on Prostitution and Other Sex Work, Participation Kit, Montreal, Quebec Public Interest Research Group at McGill University, 1996.