Prostitution in Canadian Culture
Over the course of the 21st century, the process of dealing with the problem of prostitution in Canada has been affected by pressures from the marketplace, interest groups and an outspoken portion of the social conservative public. Hindered by certain fundamental rights guaranteed by the arrival of the Charter, the laws surrounding the act of prostitution have been refined through interpretation and argument in federal courts. Through a combination of judicial activism and pressure by interest group involvement, Canada has become poised to implement pragmatic solutions that outweigh the argument for ideological interventions that would further criminalize sex-trade workers.
At the turn of the 20th century, prostitution was most often accommodated by brothels near the taverns of Canadian inner cities. As these locations were visible to the general public and a constant eyesore for the social puritans’ common to this historical period, pressure on the government began to inspire laws developed to restrain the ability of these houses to continue in an overt fashion within business communities. The Vagrancy Law of 1892, modeled after English attempts to deal with the problem of prostitution, was designed to codify common-law practices. Centering on the idea of removing female streetwalkers and bawdy houses from the inner cities, this law enabled the police to remove women who were using the sidewalk as a marketplace for sexual services and allowed law enforcement to shut down known brothels problematic to neighbourhoods. Countering the effectiveness of this law, the surge of immigration to Canada at this time brought with it a foreign contingent willing to provide women from across the Atlantic and Pacific for a growing sex-trade industry in Canadian cities. Forced to maintain a degree of secrecy by the Vagrancy Law, brothels sprung up in areas where their locations could be hidden by the anonymity of lingual and cultural barriers. Chinese neighbourhoods in Vancouver and Victoria were the perfect settings for this type of discrete situation.
By 1972, Canadian lawmakers were ready to tackle the mounting problem of prostitution with more refined legislation meant to “shift the focus from a status offence, to one prohibiting a specific behaviour.” This was expected to be a more effective means of curtailing the number of individuals using the street corners as a place of business for sexual services. The Solicitation Law of 1972 attempted to designate the behaviour of communicating an offer of sex for money in public a criminal offence. Rather than targeting a particular class of person, as the earlier vagrancy law had done, this was seen as a means of targeting an activity. This law inspired legal questions about the interpretation of the words solicit and public that allowed such a degree of government imposition into the behaviour of persons in a public place. Because pressure from special interest groups, such as civil liberties organizations, posited pragmatic solutions to the root causes of prostitution while maintaining an emphasis on human rights, the Supreme Court of Canada showed some hesitancy, as in the case of Hutt v. R., to control the behaviour of its citizenry. In this 1978, Supreme Court case involving an undercover police officer who had allowed a prostitute to enter his vehicle where she then offered her sexual services, the judges were not willing to define the police officer’s automobile as a public space. While the courts were more than willing to uphold laws designed to stifle overt behaviour that obviously affected the public arena, it was becoming clear this process was to be defined under the scrutiny and involvement of interest groups advocating the rights of the individual over collective rights. This combination of oppositional pressure and incompatible, liberal judicial activism created a failure of limited, ambiguous legislation designed to curtail certain behaviours surrounding prostitution rather than the act itself.
The next major legislation to affect federal policy towards prostitution was Bill C-127, introduced in 1982, which helped to define prostitution as a gender-neutral act. This egalitarian approach to prostitution was likely a reaction to the growing problem of male prostitutes working in the gay epicentres of Toronto, Montreal and Vancouver. In the year prior to the Bill’s enactment, Toronto police simultaneously raided 5 notorious, gay bathhouses in inner-city Toronto. While the raids resulted in few charges and fewer convictions, this enforcement of the bawdy house laws, where it was used to persecute male rather than female prostitutes, exhibited the changing cultural phenomenon of the sex industry on Canadian streets and in private locations. The growth of the gay subculture was producing its own share of prostitution and bawdy-house problems. Moreover, the backlash to an invasion into the private affairs of Toronto’s gay and transgendered community inspired mass demonstrations that brought the problem of bawdy houses into the mainstream media’s spotlight. The year following the raids, The Badgley Commission and The Fraser Committee initiated major studies into the nature of the prostitution industry.
With the results of The Fraser Committee’s findings made public in 1985, several things were becoming increasingly apparent. First, economic conditions of sex-trade workers were an underlying cause to the rise of prostitution in Canada and a more sociological, holistic approach was required to circumvent the problem. Next, the general public and Conservative lawmakers were not yet willing to take that approach. Also, contradictory legislation on prostitution was causing more dysfunction than the prevailing jurisprudence on the matter. Bill C-49, enacted in 1985, did little else but help define the previously ambiguous definitions of the word public and the word solicit found in earlier legislation, further enabling the criminalization of those working in the sex-trade industry. Following a policy of working to thwart the public nuisance prostitution caused, enforcement agencies continued to seek out street workers and bawdy houses for prosecution in an increasingly futile attempt to impede the industry.
With the advent of interest groups able to submit ideas to legislative committees and intervene at the Supreme Court level, judges, lawmakers and those enforcing the law began to be exposed to ideas about prostitution that affected how they percieved and dealt with the problem. A multitude of contradictory voices emerged from the sidelines advocating quite different versions of the causes and the solutions. Each of these groups offered ideas biased by their own values, mandates and financial interests in the situation. On the 22nd day of November, 1988, a factum submitted to the Supreme Court of Canada by The Canadian Organization For The Rights Of Prostitutes (CORP) on the matter of The Constitutional Questions Act, C.C.S.M. C180 is an early example of an intervener attempting to persuade jurisprudence on the problem of prostitution. In this factum, CORP argues that “Canadian prostitutes are socially and economically marginalized. Their lives are endangered and dehumanized. They are victims of murder, physical abuse and verbal ridicule propagated by customers, pimps and the police; they bear a special stigma fortified by the criminal law; their net incomes are very low and they have little opportunity for movement up the status ladder. Prostitutes come largely from vulnerable groups, women and youth, and from vulnerable, exploitative backgrounds. Prostitutes lack access to basic governmental services of health, social services, counselling and policing available to others. Government applies little or no resources or encouragement to the special problems of prostitutes.” CORP’s argument in this matter exhibits how they were a committed intervener with serious, vetted sources showing a long history of laws that persecute women who were society’s most vulnerable citizens. While the effect of this argument on the court judges is impossible to gauge, as judges were unwilling to express the inspirations for their judgments, it can be assumed to have enlightened the court on the predicament caused by previous laws and the reality of the prostitute’s social environment. In the years following, various special interest groups entered into the fray offering their own evaluations of the situation.
The Salvation Army, in its “Submission to the Subcommittee on Solicitation Laws of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness” explains how they have worked “with people engaged in prostitution since the mid-1800’s.” With this background established, the report goes on to espouse the idea that prostitution is intrinsically destructive to the individuals and communities involved and the prostitutes themselves are without choice in their behaviour. The Salvation Army’s Christian, patriarchal remedy to the situation is to provide mandatory programs to those criminalized by existing solicitation laws in the hopes that, despite empirical evidence that suggests otherwise, those individuals will eventually, willingly leave the profession after undergoing behaviour modification techniques available through therapy. Armed with anecdotal evidence implying most prostitutes want to leave their profession, The Salvation Army advocates an authoritarian approach whereby prostitutes are extracted using existing laws and are then transformed into productive, law-abiding citizens through social programs made available by government funding. What The Salvation Army does not expose is how it is the largest provider of non-governmental social programs in Canada, would be the main recipient of this type of funding, making this submission fraught with conflicts of interest that question its legitimacy. While this interest group does bring to light the economic situation that exacerbates the problem of prostitution, its own self interest confuses the neutrality of its position on the subject.
REAL Women of Canada, in its public statement on prostitution, also champions the idea that the exchange of sexual services for money is an inherently demeaning and destructive act. They advocate the idea that the act of prostitution itself should be made illegal. Again, mandatory rehabilitation for prostitutes is also promoted as the best solution to “return them to the mainstream of society.” While REAL Women is not the recipient of government funding for this type of rehabilitation, it is the mandate of the organization that predisposes them to ideological, reified solutions rather than pragmatic resolutions based on empirical, sociological evidence contrary to their beliefs. The answers they offer are a response directly attributable to their ideology.
Another interest group to offer solutions and insight into the problem of prostitution in Canada is the British Columbia Civil Liberties Association (BCCLA). In a recent “Updated Position on Sex Work Laws” the BCCLA clarified its argument for a “repeal of bawdy-house laws, the communication law, and sections 212(1) and (3) of the procuring law (with the exception of subsections (f) and (g).” The child sex trade and international sex trade aside, the BCCLA feels that behaviour not seriously harming others should not be criminalized. As prostitution itself cannot be used to explain societal ills that are symptomatic of impoverished economic conditions and “capable adults should exercise autonomy over their bodies,” the necessity and practicality of these laws is dubious at best. The report advocates viewing the words and behaviour between two (or more) consenting adults as a private matter. Moreover, the BCCLA argues that certain laws that have withstood Charter challenges need to be readdressed for significant reasons: the communication law fails in that the public nuisance caused by street prostitution does not warrant a reasonable limitation on freedom of association, the bawdy-house law “infringes the right to liberty” in that there is a large possibility of imprisonment for those charged and the procuring law presumes the guilt of those charged by putting a reverse onus on them to prove they had not been living off income supplied by prostitution. In summation, the BCCLA expresses the idea that the criminalization of prostitution fails to protect the public, the sex workers and it undermines principles enshrined in the Charter. While these ideas appear to be a pragmatic criticism of prostitution laws, the BCCLA has remained consistent with its own mandate for individual expression over collective necessity, making it a less-than-neutral body for offering disinterested, constructive solutions to remedy the situation. The obvious problem with this limited view is how a complete decriminalization of prostitution may give rise to higher levels of addiction problems within Canadian cities and it would tarnish our international image. Furthermore, the BCCLA report does not take into account the political condition that has sustained a Conservative government in Canada. This condition demonstrates how the public are actually in favour of policies that criminalize deviant behaviour such as prostitution and the criminal element that surrounds it, making for a difficult environment to reassess laws that strengthen more conservative policies. While the solutions and elucidations by the BCCLA regarding prostitution may be constructive under the right political conditions, at the present time they are not.
After having undergone what is perhaps the most exhaustive study of prostitution in Canadian history, Dr. John Lowman, from the School of Criminology at Simon Fraser University, offered his own submissions to the Subcommittee on Solicitation Laws of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness. The solutions and explanations pertaining to prostitution found within this submission are, perhaps, the most objective, realistic analysis of the realities of the sex trade on Canadian streets. Without the dogma of a special-interest mandate tethering him to a certain position, Lowman bases his evaluations on 28 years of interviewing “sex workers, clients, managers, police, social service personnel, crown attorneys, defence attorneys and residents in areas of prostitution.” The conclusion in all of this analysis is a strong position for the decriminalization of prostitution on all fronts. Lowman advocates a repeal of the solicitation laws, any bawdy-house laws, and the procurement laws. He establishes that the current situation not only fails to stop prostitution, but it actually makes the environment more dangerous for the people involved. It does this by many means, not the least of which is by stigmatizing the people involved with criminal records, further entrenching them in a low-social position where selling sex remains a highly tempting occupation when few other opportunities exist. Lowman calls for all three levels of government to consider “where and under what circumstances sex workers can meet their customers and conduct their business.”
With such a comprehensive study as Lowman’s to draw from, written by an expert on the realities of prostitution and the legal and sociological impacts of decriminalization, a liberal-activist court may become interested in rethinking our legal response to prostitution in Canadian society. But do we have a liberal-activist court willing to command judicial policy by striking down laws surrounding prostitution rather than defer such questions to parliament? By what arguments could these laws be struck down? Section 210 and 211, The Bawdy House Laws, may be challenged on the right to liberty, as the BCCLA has suggested. With changing judicial values on the morality of prostitution and successful bawdy-house models being exhibited in Victoria, B.C. (discussed later in this essay), a legal infrastructure for brothels may emerge that can challenge this law on the basis that this violation of the right to liberty is no longer warranted. Section 213, The Communicating Law, is currently considered a reasonable limit on freedom of expression. This is justified by the social nuisance prostitutes soliciting customers in public causes. As Canadian cities move to the European model of fashioning red-light districts, this may have the opportunity to be readdressed in the courts. If the harm caused by street solicitation can be reduced, it may not justify a limit on freedom of expression. Section 212, The Procurement Law, breaches the Canadian right to freedom of association. With a deeper understanding of the social reality of a prostitute’s life, the courts may consider these arguments. As Dr. John Lowman’s recommendations are recent additions to the state of affairs, the consequence of his input remains to be seen at the Supreme Court level, the only place it would have any major effect.
Contrasting Lowman’s submissions, other reports on prostitution by extremist groups, such as the Evangelical Fellowship of Canada (EFC), show ideological positions that are based on faith in values of a theological, social-conservative nature. This is similar to the Salvation Army’s position, but taken to a fundamentalist extreme. In this paradigm, sex is seen as only moral amongst consenting adults within a marriage ordained by God. All acts of sex outside of marriage are reprehensible and inherently damaging to the perceived soul of those participating. The idea of commodifying the sex act is therefore seen as an even greater abomination of God’s will. While these types of arguments may be pertinent to a small minority of evangelical Canadians, their impact on a judicial or a legislative process that expects to reflect the values of Canadians at large is minimal at best.
Many of the reports on prostitution made by interest groups imply or state the need to criminalize the act in order to curb a behaviour that is destructive to the individuals participating in it. The Salvation Army rejects “the notion that street level prostitution is a victimless transaction” and announces that “Many of the people who attend our programs would exit prostitution if they could.” REAL Women of Canada claims “the dignity of women and men is demeaned” by participating in the sex trade. Janine Benedet, in her “Submission to the Subcommittee on the Reform of Solicitation Laws,” claims research showing that 89 percent of women in the sex trade “want to leave prostitution immediately.” Benedet also points to the The Fraser Committee report that showed the mortality rate amongst prostitutes to be 40 times the national average. On the surface, these submissions appear to be clear evidence that prostitution is a destructive behaviour requiring preventative laws. Subscribing to the idea that the state should have a role in protecting people from themselves, these statistics still do not cross abnormal thresholds from other, completely legal occupations. According to a recent Gallup poll on job satisfaction, individuals without a college education have a 6 - 9 percent satisfaction rate with their occupations. Comparing this to Benedet’s numbers, this shows that prostitutes actually like their occupation slightly more than the average, working-class American. As for the mortality rate and long-term sustainability of prostitution, it can easily be compared to construction work where individuals cannot continue labour-intensive tasks into old age and it is far less dangerous than mining, an industry notorious for deaths on the job. The government has not indicated a need to criminalize mining for its high mortality rate, and prostitution should not be treated differently.
Outside of the formal examinations of the sex-worker culture and current law pertaining to prostitution, comes anecdotal insight from those on the front lines of the prostitution industry. Kim Laidman, the Constable in charge of issuing permits to the escorts and escort agencies in Victoria, B.C., describes a loop hole, available due to municipal legislation that allows for sex workers in the city to practice their occupation contingent on a particular procedure being followed. The process involves the prostitutes only offering time in exchange for money and a third party explains what acts the prostitutes are willing to perform. The escorts and their agencies pay the city a yearly fee for licensing. The ability to interview the escorts before licensing allows the police the chance to assess the age and situation surrounding the escort. While this method may not formally address all the problems associated with individuals in the trade, it does give the police the ability to involve themselves with those choosing this profession. This lessens the chances that there is any coercion involved in the choice to be a prostitute and allows trained law enforcement to monitor the situation closely.
Another pilot project to open “a co-operative brothel whose profits would help fund programs for addicted and impoverished women selling sex on city streets” has been initiated by Jody Patterson, former executive director of Prostitutes Empowerment Education and Resource Society (PEERS), and Lauren Casey, a former sex-trade worker and a past director of PEERS. Taking a harm reduction approach, these two women will attempt to create an atmosphere where the prostitutes will be empowered to make educated decisions about staying in the profession. Those that choose not to will be supplied various avenues for change. The health and safety of the escorts will also be a paramount directive of the brothel, as will a close relationship with local police. The legal situation in Victoria, whereby the police actually promote the use of a local, legal loop hole, has allowed for this arrangement to occur with little official interference.
Being that prostitution has always attracted the opposition of religious groups, social conservatives, feminist organizations and much of the general public, laws pertaining to it will likely continue to be challenged at formal, judicial levels as well as at a community level. Coming to constructive, pragmatic solutions to minimizing the harm to the individuals involved and the communities that prostitution affects requires a clear understanding of the positions of all concerned, the realistic circumstances of the prostitute’s environment and a willingness of all parties to compromise. Scrutiny can only have a positive effect on the lives affected by this, the world’s oldest profession.
B.C. Civil Liberties Association, BCCLA Updated Position on Sex Work Laws, January 2005. Go to their website, or directly to http://www.bccla.org/positions/privateoff/05sex%20work.htm
CBC Website, “Gay and Lesbian Emergence: Out in Canada” Archives at http://archives.cbc.ca/politics/rights_freedoms/topics/599-3233/
“Co-op brothel proposed to help street prostitutes,” Victoria Times Colonist, August 21, 2007.
Dr. John Lowman, “Submission to the Subcommittee on Solicitation Laws of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness,” February 2005. Found at Dr. John Lowman’s website: http://mypage.uniserve.ca/~lowman/
Gallup Inc., Gallup website at http://www.gallup.com/poll/24010/Personal-Fulfillment-Frequently-Cited-Top-Job-Like.aspx
Janine Benedet, “Six Myths About Prostitution (and a Rebuttal)” (Submission to the Subcommittee on the Reform of Solicitation Laws).
REAL Women of Canada - “Statement on Prostitution,” (Position Paper). See their website at http://www.realwomenca.com/papers.htm
The Salvation Army, “Submission to the Subcommittee on Solicitation Laws of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness,” February 2005. Website: http://18.104.22.168/search?q=cache:iGszqOv7b1kJ:www.salvationarmy.ca/documents/solicitation.pdf+Salvation+Army+Submission+to+the+Subcommittee+on+Solicitation+Laws+of+the+Standing+Committee+on+Justice,+Human+Rights,+Public+Safety+and+Emergency+Preparedness&hl=en&ct=clnk&cd=1&gl=ca
The Standing Committee on Justice and Human Rights, Sixth Report, December 2006, Chapter Four: “The Legal Response To Prostitution,” at http://cmte.parl.gc.ca/Content/HOC/committee/391/just/reports/rp2599932/justrp06/10-chap4-e.htm#TOCLink_10_1
The Evangelical Fellowship of Canada, “Submission to the Subcommittee
on Solicitation Laws of the Standing Committee on Justice, Human Rights,
Public Safety and Emergency Preparedness,” February 2005, at http://22.214.171.124/search?q=cache:1HH_TtpPhl8J:files.efc-canada.net/si/Prostitution/Solicitation%2520-%2520EFC%2520Submission%252020050216%2520Web.pdf+The+Evangelical+Fellowship+of+Canada,+%E2%80%9CSubmission+to+the+Subcommittee&hl=en&ct=clnk&cd=1&gl=ca
UOttawa, “In the Supreme Court of Canada,” found at website: http://126.96.36.199/search?q=cache:sQmlL-B6jF8J:www.uottawa.ca/constitutional-law/Prostitution.pdf+intervener+status+Supreme+Court+of+Canada+prostitution&hl=en&ct=clnk&cd=1&gl=ca