There is no explicit prohibition against “prostitution” in the Criminal Code of Canada. In other words, the specific act of engaging in sexual activity for money or any other form of consideration is not itself illegal. However, there are several offences associated with prostitution, which do attract criminal liability.
The majority of prostitution-related offences relate to solicitation in a public place. For example, s. 213 of the Criminal Code makes it an offence to
- stop or attempt to stop a motor vehicle,
- impede the free flow of pedestrian or vehicular traffic,
- enter or leave a premises adjacent to a pedestrian walkway or vehicular motorway, or
- stop or attempt to stop a person
in a public place or a place open to public view for the purpose of engaging in prostitution or obtaining the services of a prostitute. According to s. 213, a public place includes any place to which the public has access by right (e.g., streets, parks, public buildings). However, a “public place” also includes a place where the public has access by invitation such as a bar or club. The part of the provision relating to a “place open to the public view” makes it an offence to engage in certain prohibited conduct in the interior of a car located on a public street.
It is also an offence under section 210 of the Criminal Code to keep or use a “common bawdy-house” and under section 211 to transport a person to a bawdy-house. Section 210 catches both individuals who use the bawdy-house, in other words people who attend at the bawdy-house in order to obtain sexual services, and individuals who “keep” a bawdy-house. “Keep” is defined in the Criminal Code to include almost every person associated with the business of the bawdy-house: the owner, any employees or assistants, anyone acting on behalf of the owner, and managers.
The Criminal Code defines a “bawdy-house” as “a place that is kept or occupied, or resorted to by one or more persons, for the purpose of prostitution or the practice of acts of indecency.” Based on this definition, the laws relating to a common bawdy-house make it an offence to engage in prostitution in a private dwelling, if that dwelling can be said to fit the definition of a bawdy-house. The definition is so broad that most acts of prostitution occurring in private dwellings will be caught by this law. Everything from a single individual living alone selling sexual services to a traditional arrangement where several women live together under the supervision of a “pimp” or “madam” would fall under the definition of a “bawdy-house”. Thus, in conjunction, sections 211 and 212 dealing with prostitution in private dwellings and section 213 dealing with prostitution in public places together criminalize almost every transaction leading up to an act of prostitution, even though they do not criminalize the actual exchange of sexual services for money.
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Section 212 of the Criminal Code also makes it an offence to “live of the avails of prostitution”. This provision catches any person who shares in a prostitute’s earnings. Owners of bawdy-houses and pimps are commonly charged with offences under this provision. Living off the avails of prostitution is considered a relatively serious offence and can carry a jail sentence of up to ten years. There exists in law a rebuttable presumption that any person who cohabits with a prostitute, is in the habitual company of a prostitute, or lives in a common-bawdy house is “living on the avails of prostitution”. “Rebuttable presumption” is a legal term that means that if the Crown Attorney can adduce evidence to show that an individual is living in one of the three scenarios described above the court will assume that that individual lives off the avails of prostitution, unless the accused individual’s criminal defence lawyer can successfully introduce evidence that refutes that assumption. This rebuttable presumption only applies to individuals who receive a direct portion of the prostitute’s earnings. It does not apply to indirect profiting, so it would not catch the child or family member living with a prostitute.
Section 212 also creates a number of offences relating to the procurement of prostitutes. These provisions are generally considered the most serious provisions in the Criminal Code. Procurement offences relate to the act of persuading or forcing another individual to become a prostitute. This would encompass a variety of situations. For example, offences related to human trafficking (bringing people into Canada to work as prostitutes, or selling human beings for consideration) would be caught under this provision. Situations where an employer requires or attempts to require his or her employee to have sexual relations with a client or business partner would also fall under the category of procurement. Finally, any act by which one individual entices, controls, persuades or influences another person to engage in prostitution would be an offence under the procurement legislation.
Purchasing or procuring the sexual services of an individual under the age of eighteen is also a serious offence in Canada. Issues dealing with minors are explicitly dealt with in section 212(4). This section states that every person who, in any place, purchases the sexual services of a person who is under the age of eighteen is guilty of an indictable offence and liable to a maximum of five years imprisonment. This offence also carries a mandatory minimum jail sentence of six months. The law is clear that exchanging money or any form of consideration for the sexual services of a person under the age of eighteen is a criminal offence. There are no special rules relating to public places or bawdy-houses; it is always illegal to purchase the services of a prostitute under the age of eighteen. Living off the proceeds of prostitution of a person who is under the age of eighteen carries a maximum sentence of fourteen years and a mandatory minimum sentence of two years. Moreover, the combined offences of living of the avails of prostitution of a person under the age of eighteen and procuring that individual to engage in prostitution through counseling, compulsion, threats, intimidation, or coercion carries a five year mandatory minimum sentence and a fourteen year maximum sentence.
In Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, the Supreme Court of Canada concluded that s. 213 does not violate the Canadian Charter of Rights and Freedoms. Though the Charter guarantees every individual freedom of expression, the Supreme Court held that the law against solicitation for the purposes of prostitution in a public place was a constitutionally justifiable limit on the right to freedom of speech. In the same decision, the court indicated that s. 213 does not breach a number of other Constitutional rights that were raised: including the s. 15 equality guarantee and the s. 7 right to “life, liberty and security of the person”.
Nonetheless, a group of Toronto criminal defence lawyers and sex workers are currently challenging the laws against prostitution in the Supreme Court of Canada. The applicants claim that the laws against keeping a common bawdy-house force them and thousands of women like them out of the safety of their homes and on to the streets where they are vulnerable to violence and abuse. They are arguing that by forcing them to work in situations where they are prone to physical and psychological violence the legislation violates their right to security of the person under s. 7 of the Charter.They are also arguing that the prohibition against soliciting for the purpose of prostitution infringes their right to freedom of expression under s. 2(b) of the Charter, by limiting their ability to communicate with others for the purpose of prostitution. However, the primary argument the team of lawyers and sex workers challenging the law are raising is that if prostitution was legal and properly regulated, prostitutes would be safer.
Recent events such as the case of serial killer Robert Pickton, known colloquially as the “pig farmer”, have drawn public attention to the issues and dangers facing prostitutes and sex workers in Canada. Pickton was convicted of murdering six women and accused of murdering many more at his farm in northern British Columbia. He was said to pray on prostitutes and drug users from Vancouver’s downtown eastside who he considered easy targets. However, the Pickton case is just one egregious example of the violence inflicted on prostitutes forced to work on the street with little supervision or protection. Between 1991 and 2005, there were 116 known prostitution-related murders in Canada. Rape and assault are also common dangers faced by prostitutes. However, there are arguments on both sides, and the Attorney General’s office argues that the legalization of solicitation for the purpose of prostitution and the keeping of a common bawdy-house would legitimize exploitation and proliferate the problems posed by prostitution, instead of keeping prostitutes safe.
The applicants in the current constitutional challenge have not suggested changing the laws relating to minors or the laws relating to procurement. Thus, the only form of prostitution that will be legal if the challenge is successful is the freely chosen and consensual selling of sex by individuals over the age of eighteen. The constitutional challenge was heard by the Supreme Court in October of 2009 and a decision is expected some point later this year.
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