Canada’s Reformed Prostitution Laws
Response During Development of Proposed New Laws (2014)
In June 2014, the government proposed new prostitution laws in Bill C-36, adapting the Nordic model in certain ways. The bill was later passed into law. Read the EFC’s reponse. See related EFC resources on Bill C-36 and prostitution law reform, including a presentations the EFC made to committees reviewing the bill in the House of Commons (July 2014) and the Senate (Sept. 2014).
Prostitution is not, and has never been, illegal in Canada. Historically, Parliament has opted to combat it indirectly, discouraging prostitution by criminalizing virtually all activities surrounding prostitution.
In a highly publicized case launched in 2009, three women – a dominatrix and two former prostitutes – challenged three prostitution-related provisions of the Criminal Code in an Ontario court, arguing that these provisions violated Section 7 of the Charter of Rights and Freedoms, which guarantees “life, liberty and security of the person.” The three provisions challenged relate to (i) keeping a common bawdy house or brothel, (ii) living on the avails of prostitution and (iii) communicating for the purposes of prostitution.
In September 2010, Justice Susan Himel of the Ontario Superior Court ruled that those three elements of Canada’s prostitution laws were unconstitutional, because they force prostituted women to choose between two rights guaranteed in the Charter - their right to freedom and their right to security.
The federal government and the Government of Ontario appealed Justice Himel’s decision. The Ontario Court of Appeal (sitting in a panel of 3 judges) released its ruling in March 2012. The Court upheld the part of Justice Himel’s ruling striking down the law prohibiting the operation of a bawdy house, giving the federal government twelve months to reform this provision to bring it in line with the Charter. They disagreed with Justice Himel and upheld the provision in the law that prohibits communications for the purpose of prostitution, reasoning that this provision was subject to a 1990 Supreme Court of Canada decision that had found it constitutional. As a result, street prostitution laws would remain essentially unchanged. On the third point, the Court redrafted the living on the avails provision so that it would only be illegal to receive funds from a prostituted person under circumstances of demonstrated exploitation of that person by the recipient of the funds.
All of this was couched in the refrain, echoed throughout the many pages of written decision, that “in Canada, prostitution itself is legal. There is no law that prohibits a person from selling sex, and no law that prohibits another from buying it.” If prostitution is to be illegal in Canada, Parliament will have to rewrite the laws to make them clear, coherent and constitutional.
The Federal Government appealed the ruling of the Court of Appeal to the Supreme Court of Canada, and the final decision case was released in December 2013 (see theEFC.ca/Bedford-Decision). Technically the laws as written in the Criminal Code prior to the initial challenge continued to stand until the end of 2014, giving the government a year to introduce new laws.
The EFC has been working, and continues to work, in partnership with other organizations in pursuit of reform to Canada’s prostitution laws. Canada needs better, more just, laws that will affirm the dignity and value of all Canadian women, offer more protection to those who are being prostituted (studies note that over 90% are unwillingly engaged in prostitution), and make the purchase of sex illegal in Canada.
The EFC has been calling on the government to amend the Criminal Code to implement laws based on the legal and social framework of what is known as the Nordic Model of Law on Prostitution. (The EFC released its Nordic-based proposal in December 2013. See Out of Business: Prostitution in Canada – Putting an End to Demand at theEFC.ca/OutOfBusiness.) This model of law recognizes that the vast majority of prostituted persons are victims, and therefore focuses the punitive powers of the law on the purchasers and purveyors of sexual services – the “johns”, “pimps” and traffickers, while decriminalizing those who are being sold. It also focuses on social structures and systems to ensure that women who want to exit prostitution have the resources and supports available to them to make this possible and successful.
Prostitution and Human Trafficking
Human trafficking is modern day slavery, and involves victims who are forced, defrauded or coerced into forced labour or sexual exploitation. Sexual exploitation is the most common purpose for the trafficking of people worldwide. Women, girls and boys are trafficked across international and domestic borders, moved against their will from one country to another, one province to another, one city to another, for use in street prostitution, in brothels and massage parlours, in escort services and in strip clubs.
It has been demonstrated in countries where prostitution and brothels have been legalized, that when legalization occurs, the sex industry and sex tourism expand, the demand for purchase of sexual services skyrockets, and this drives rates of sex trafficking up. This has been the case in the Netherlands, in Germany, in parts of Australia and in New Zealand, where decriminalization of prostitution has resulted in legal and illegal brothels that are full of foreign women.
The Canadian government has taken some strong, positive steps toward fighting human trafficking across and within our borders. It is vital that any effort to end human trafficking include a recognition of the intrinsic links between prostitution and trafficking, and therefore a careful evaluation of our prostitution laws and how changes to them will impact rates of trafficking is required.
List of Resources
Reports and Government Submissions
- All latest EFC releases at theEFC.ca/releases
- Releases related to the Bedford case at theEFC.ca/Bedford
- EFC Welcomes New Legislation on Prostitution (June 4, 2014)
- The EFC Encourages Participation in Consultation on Prostitution Laws (March 10, 2014)
- EFC Urges Government to Act After Supreme Court Decision in Prostitution Case (Dec. 20, 2013)
- The EFC Proposes Canada Criminalize Purchase of Sex (Dec. 11, 2013)
- The EFC in the Supreme Court: Prostitution and Human Trafficking Rate Linked (June 12, 2013)
- EFC Supports Canadian Plan to Fight Human Trafficking (June 6, 2012)
- The End of Prostitution in Canada? (June 5, 2012)
- Prostitution Ruling Highlights Need for New Laws (Mar. 27, 2012)
- The EFC Releases Recommendations for National Strategy to Combat Human Trafficking (Oct. 26, 2011)
- The EFC Response to Ontario Superior Court Ruling on Prostitution (Sept. 29, 2010)
- The EFC Reports on Prostitution and Human Trafficking Link (Apr. 27, 2010)
- Defend Dignity Forum: An educational evening event about ending prostitution: Co-sponsored by the EFC and Defend Dignity