Prostitution law in Canada

Last updated

The passage of the Canadian Charter of Rights and Freedoms in 1982 allowed for the provision of challenging the constitutionality of laws governing prostitution law in Canada in addition to interpretative case law. Other legal proceedings have dealt with ultra vires issues (whether a jurisdiction, such as a Provincial Government or municipality, has the powers to legislate on the matter). In 2013, three provisions of the current law were overturned by the Supreme Court of Canada, with a twelve-month stay of effect. In June 2014, the Government introduced amending legislation in response.

Contents

Constitutional law

20th century

Sections 193, 195 (213)

The new formulations of section 213 found themselves under challenge in the lower courts within a year, with conflicting results (R. v. McLean,28C.C.C. (3d)176(1986).; R. v. Bear,54C.R. (3d)68(1986).).

Nova Scotia's Appeal Court ruled the legislation violated the guarantee of freedom of expression in the Charter of Rights and Freedoms, by constraining communication in relation to legal activity (R. v. Skinner (1987), 35 C.C.C. (3d) 203). The Alberta Court of Appeal disagreed, holding that infringement of freedom of expression was a justifiable limitation as no “clear and convincing” alternative was available for dealing with the nuisance of street prostitution (R. v. Jahelka (1987), 79 A.R. 44).

The Manitoba Court of Appeal upheld section 195.1(1)(c) on the grounds that there was no prima facie case of freedom of expression (Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1987] 6 W.W.R. 289).

When referred to the Supreme Court, it upheld the sections (Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123])Chief Justice Dickson for the majority (Madam Justice Wilson and Madam Justice L'Heureux‑Dubé dissenting), agreed that freedom of expression was restricted by what was now 213(1)(c) it did not infringe or deny the freedom of association guaranteed by section 2(d) of the Charter. He also held that it did not infringe the right to be treated fairly when life, liberty and security are affected by governmental action, as guaranteed by section 7 of the Charter. The reference to the court also included the bawdy house provisions which were held to not infringe the guarantee of freedom of expression provided for by section 2(b) of the Charter. Finally the impugned infringement of the freedom of expression guaranteed by section 2(b) of the Charter was justifiable under section 1 of the Charter as being a reasonable limit on a protected right.

The justification was set out in three stages:

  1. The court must first characterize the objective of the law (a remedy for solicitation in public places and the eradication of social nuisance from the public display of the sale of sex). This was constructed as restricted to taking prostitution off the streets and out of public view. In this respect, Dickson disagreed with the opinion of another justice that the legislative objective addressed the broader questions of the exploitation, degradation and subordination of women.
  2. The court must assess the proportionality of the legislation to the objectives; in particular any infringement of rights must be the minimum to achieve this. It was held the provisions were not unduly intrusive.
  3. The court must determine if the effects of the law so infringe a protected right that it outweighs the objective. It was held that the curtailment of street solicitation was in keeping with the interests of society, for its nuisance‑related aspects.

Section 198

A part of section 198(1)(d) was challenged in 1991, namely that a previous conviction of keeping a disorderly house amounts to proof of the nature of the premises in subsequent proceedings. This was held to contravene sections 11(d) and 7 of the Charter (R. v. Janoff (1991), 68 C.C.C. (3d) 454 (Que. C.A.)), and became inoperative. [1]

21st century

Ontario constitutional challenge 2007

A legal challenge to three of Canada's many prostitution laws was filed in Ontario Superior Court in March 2007. [2] In a decision handed down by Madam Justice Susan Himel in the Ontario Superior Court of Justice on September 28, 2010, the prostitution laws were declared invalid. [3] The decision was stayed and an appeal was heard in by the Ontario Court of Appeal in June, 2011. [4] On March 26, 2012 the Appeal court came to a decision which upheld the lower court's ruling on bawdy houses, modified the ruling on living on the avails to make exploitation a criminal offence, but reversed the decision on soliciting, holding that the effect on communities justified the limitation. Two of the five judges dissented from the last ruling, stating that the law on solicitation was not justifiable. [5] [6] The court continued a stay of effect of a further twelve months on the first provision, and thirty days on the second.

The Government announced it would appeal this decision on April 25, and on October 25, 2012, the Supreme Court of Canada agreed to hear the appeal. [7] [8] The Supreme Court also agreed to hear a cross-appeal by sex-trade workers on the Court of Appeal for Ontario's decision to ban solicitation. The Supreme Court of Canada heard the case on June 13, 2013. [9] [10]

British Columbia constitutional challenge 2007

A related challenge was mounted in British Columbia in 2007 [11] , but did not proceed due to a procedural motion by the Attorney General of Canada seeking dismissal on the grounds of lack of standing by the litigants. This was upheld by the BC Supreme Court in 2008, [12] [13] but successfully appealed in October 2010. [14] [15] The Attorney General then appealed this decision of the British Columbia Court of Appeal to the Supreme Court of Canada who released their decision on September 21, 2012. They dismissed the appeal enabling the case to once again proceed in the court of first instance. [16]

The Supreme Court made a number of observations regarding the issues involved:

"In this case, all three factors, applied purposively and flexibly, favour granting public interest standing to the respondents. In fact, there is no dispute that the first and second factors are met: the respondents’ action raises serious justiciable issues and the respondents have an interest in the outcome of the action and are fully engaged with the issues that they seek to raise. Indeed, the constitutionality of the prostitution provisions of the Criminal Code constitutes a serious justiciable issue and the respondents, given their work, have a strong engagement with the issue...

This case constitutes public interest litigation: the respondents have raised issues of public importance that transcend their immediate interests. Their challenge is comprehensive, relating as it does to nearly the entire legislative scheme. It provides an opportunity to assess through the constitutional lens the overall effect of this scheme on those most directly affected by it...

It is obvious that the claim is being pursued with thoroughness and skill...

The impugned Criminal Code provisions, by criminalizing many of the activities surrounding prostitution, adversely affect a great number of women. These issues are also clearly justiciable ones, as they concern the constitutionality of the challenged provisions...

Some aspects of the statement of claim raise serious issues as to the invalidity of the legislation...

Granting standing will not only serve to enhance the principle of legality with respect to serious issues of direct concern to some of the most marginalized members of society, but it will also promote the economical use of scarce judicial resources"

In view of the subsequent decision by the Supreme Court of Canada, this application became moot.

Supreme Court decision 2013

In a decision dated 20 December 2013, the Supreme Court of Canada struck down the laws in question, ruling that a ban on solicitation and brothels violated prostitutes' rights to safety. They delayed the enforcement of their decision for one year—also applicable to the Ontario sections—to give the government a chance to write new laws. Following the announcement of the decision Valerie Scott, one of the applicants, stated in the media that, regardless of the decision, sex workers must be involved in the process of constructing the new legislation: "The thing here is politicians, though they may know us as clients, they do not understand how sex work works. They won't be able to write a half-decent law. It will fail. That's why you must bring sex workers to the table in a meaningful way." [17] [18] [19]

Government response to Supreme Court decision

In response, Peter MacKay, the Minister of Justice introduced amending legislation, C-36 [20] the "Protection of Communities and Exploited Persons Act" (PCEPA) on June 4, 2014, [21] which received first reading. Debate on second reading began on June 11. It passed the third reading on October 6 and was approved by the Senate on November 4. On November 6, 2014, Bill C-36 received Royal Assent and officially became law. [22]

Post-PCEPA legal developments

In February 2020, an Ontario court judge struck down three parts of the PCEPA as unconstitutional: the prohibitions on advertising, procuring and materially benefiting from someone else's sexual services were violations of the 'freedom of expression' and 'security of the person' as defined in the Canadian Charter of Rights and Freedoms. Those provisions were later upheld, however, by the Ontario Court of Appeal in February 2022. [23]

Case law

Section 197: Bawdy house definition

The wording of section 197 allows of some interpretation. As noted by the Supreme Court of Canada in Cohen [1939] "Prior to 1907, a common bawdy house was defined by section 225 of the Code as “a house, room, set of rooms or place of any kind kept for purposes of prostitution,” but in that year, by 6-7 Edward VII, chapter 8, section 2, the section was repealed and a new one enacted in the same terms but with the addition at the end, of the words “or occupied or resorted to by one or more persons for such purposes.” That case reversed an Ontario Court of Appeal decision acquitting a woman convicted of offering sexual services on her own. The court pointed to the words one or more persons as clearly indicating that operating on one's own constituted a bawdy house. [24]

Another requisite is that a place must be resorted to for prostitution on a habitual and regular basis (R. v. Patterson (1968), 67 D.L.R. (2d) 82 (S.C.C.)). A woman who used her own apartment, alone, but regularly was convicted (R. v. Worthington (1972), 22 C.R.N.S. 34 (Ont. C.A.)).

Another relates to the alternative definition of "the practice of acts of indecency", since this leaves open the definition of indecency, which may not be universally understood or accepted. One definition of community standards comes from the Supreme Court decision in R. v. Tremblay, [1993] 2 S.C.R. 932. In considering nude dancing the majority held that the acts were not indecent since they did not fall below the community standard of tolerance, citing the circumstances surrounding the act, the degree of harm that could result from public exposure, and expert evidence. No complaints had been received; the acts were in a closed room between consenting adults without physical contact, while expert witnesses suggested this was voyeurism and exhibitionism that caused no harm.

When Tremblay was used in Ontario to determine that lap dancing or table dancing was not indecent Toronto passed a by-law prohibiting close-contact dancing. However the Court of Appeal reversed the decision on the grounds that this constituted prostitution (R. v. Mara, 27 O.R. (3d) 643). Furthermore, the court ruled that Parliament intended to abolish prostitution as a form of violence against women, and thus the dancing exceeded public acceptability. The Supreme Court confirmed this in June 1997 holding that sexual contact constitutes prostitution and exceeds community standards.

This type of activity is harmful to society in many ways. It degrades and dehumanizes women; it desensitizes sexuality and is incompatible with the dignity and equality of each human being. Mr. Justice Sopinka, 26 June 1997

Section 210: Bawdy house Bawdy house keeping

Participation alone is insufficient under 210 (1), without “some degree of control over the care and management of the premises” (R. v. Corbeil, [1991] 1 S.C.R. 83). [1]

Section 212: Procuring

Subsection 3 provides a presumption of offence of living on the avails, if associated with a sex worker or premise. A reverse onus such as this contravenes the presumption of evidence under section 11(d) of the Charter and was challenged. The Supreme Court found this justifiable in Downey v. R.( [1992] 2 S.C.R. 10). The majority accepted that an accused might be convicted despite the existence of reasonable doubt, for instance, a person may share accommodation with someone without necessarily living on their earnings. The Court found this a reasonable limit on the presumption of innocence because the intent was to prevent exploitation by pimps and that there was no real danger of innocent persons being found guilty if they provided evidence to the contrary, thereby constituting reasonable doubt. It was felt that this provision protected sex workers from abuse. [1]

See also

Related Research Articles

Supreme Court of Canada Highest court of Canada

The Supreme Court of Canada is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian law, and grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts. The Supreme Court is bijural, hearing cases from two major legal traditions and bilingual, hearing cases in both official languages of Canada.

Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause, sometimes referred to as the override power, and it allows Parliament or provincial legislatures to temporarily override sections 2 and 7-15 of the Charter.

<i>Egan v Canada</i> Supreme Court of Canada case

Egan v Canada, [1995] 2 SCR 513 was one of a trilogy of equality rights cases published by a very divided Supreme Court of Canada in the spring of 1995. It stands today as a landmark Supreme Court case which established that sexual orientation constitutes a prohibited basis of discrimination under section 15 of the Canadian Charter of Rights and Freedoms.

Section 7 of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section: the right to life, liberty and security of the person. Denials of these rights are constitutional only if the denials do not breach what is referred to as fundamental justice.

Section 2 of the Canadian Charter of Rights and Freedoms ("Charter") is the section of the Constitution of Canada that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or corporation. These freedoms can be held against actions of all levels of government and are enforceable by the courts. The fundamental freedoms are freedom of expression, freedom of religion, freedom of thought, freedom of belief, freedom of peaceful assembly and freedom of association.

<i>R v Butler</i> Supreme Court of Canada case

R v Butler, [1992] 1 S.C.R. 452 is a leading Supreme Court of Canada decision on pornography and state censorship. In this case, the Court had to balance the right to freedom of expression under section 2 of the Canadian Charter of Rights and Freedoms with women's rights. The outcome has been described as a victory for anti-pornography feminism and the Women's Legal Education and Action Fund, but a loss for alternative sexualities.

<i>R v Keegstra</i> Supreme Court of Canada case on wilful promotion of hatred

R v Keegstra, [1990] 3 SCR 697 is a freedom of expression decision of the Supreme Court of Canada where the court upheld the Criminal Code provision prohibiting the wilful promotion of hatred against an identifiable group as constitutional under the freedom of expression provision in section 2(b) of the Canadian Charter of Rights and Freedoms. It is a companion case to R v Andrews.

<i>Canada (AG) v Lavell</i> Supreme Court of Canada case

Canada (AG) v Lavell, [1974] S.C.R. 1349, was a landmark 5–4 Supreme Court of Canada decision holding that Section 12(1)(b) of the Indian Act did not violate the respondents' right to "equality before the law" under Section 1 (b) of the Canadian Bill of Rights. The two respondents, Lavell and Bédard, had alleged that the impugned section was discriminatory under the Canadian Bill of Rights by virtue of the fact that it deprived Indian women of their status for marrying a non-Indian, but not Indian men.

<i>Westendorp v R</i> Supreme Court of Canada case

Westendorp v R, [1983] 1 S.C.R. 43 was a decision of the Supreme Court of Canada on the scope of the federal Parliament's criminal law power under section 91(27) of the Constitution Act, 1867. A unanimous Court found that a municipal by-law that prohibited standing in the street for the purpose of prostitution was in the nature of a criminal law prohibition and therefore ultra vires of the provincial constitutional authority. The decision surprised many legal scholars who considered it to be inconsistent with previous Supreme Court cases where provincial laws of a moral nature were upheld under the provincial power. This was also the first case where the Canadian Charter of Rights and Freedoms was cited in argument to the Supreme Court, although the Charter argument was ultimately abandoned during the hearing.

<i>M v H</i> Supreme Court of Canada case

M v H [1999] 2 S.C.R. 3, is a landmark decision of the Supreme Court of Canada on the rights of same-sex couples to equal treatment under the Constitution of Canada.

<i>Figueroa v Canada (AG)</i> Supreme Court of Canada case

Figueroa v Canada (AG), [2003] 1 S.C.R. 912 is a leading Supreme Court of Canada decision on the right to participate in a federal election under section 3 of the Canadian Charter of Rights and Freedoms. The Court struck down a provision requiring a political party to nominate 50 candidates before receiving certain benefits.

<i>R v Swain</i> Supreme Court of Canada case

R v Swain, [1991] 1 S.C.R. 933 is a leading constitutional decision of the Supreme Court of Canada on certain rights of the mentally ill in their criminal defence. The case concerned a constitutional challenge of the common law rule permitting the Crown to adduce evidence of an accused's insanity and section 542(2) of the Criminal Code, which allowed for the indeterminate detention of an accused who is found not guilty by reason of "insanity". The Court held that both the common law rule and the Code provision were unconstitutional. As a result, the Court created a new common law rule that was constitutional, and Parliament created new laws of what to do with individuals who were found not criminally responsible by reason of a mental disorder. The parties to the case were the appellant, Swain, the respondent, the Crown, and the following interveners: the Attorney General of Canada, the Lieutenant Governor's Board of Review of Ontario, the Canadian Disability Rights Council, the Canadian Mental Health Association, and the Canadian Association for Community Living.

<i>Prostitution Reference</i> Supreme Court of Canada case

Reference re ss. 193 & 195.1(1)(c) of the Criminal Code (Man.) [1990] 1 S.C.R. 1123, commonly known as the Prostitution Reference, is a decision of the Supreme Court of Canada on the right to freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms, and on prostitution in Canada. Manitoba's Appeal Court had ruled the legislation violated the guarantee of freedom of expression in the Charter of Rights and Freedoms, by constraining communication in relation to legal activity. The case was referred to the Supreme court.

Foundation for Equal Families

The Foundation for Equal Families is a Canadian gay and lesbian rights group founded in 1994 following the failure of Bill 167 in the Legislative Assembly of Ontario. The group's mandate is "Dedicated to achieving recognition and equality for same sex relationships and associated family rights through education and legal action". Meeting this mandate was accomplished by intervening in various precedent-setting legal cases, through representation at various pride parades and most notably in suing the Canadian federal government over failure to amend 58 pieces of federal legislation that were charter-infringing due to the definition of spouse.

Current laws passed by the Parliament of Canada in 2014 make it illegal to purchase or advertise sexual services and illegal to live on the material benefits from sex work. The law officially enacted criminal penalties for "Purchasing sexual services and communicating in any place for that purpose."

Hate speech laws in Canada Canadian laws relating to hate speech

Hate speech laws in Canada include provisions in the federal Criminal Code, as well as statutory provisions relating to hate publications in three provinces and one territory.

The history of prostitution in Canada is based on the fact that Canada inherited its criminal laws from England. The first recorded laws dealing with prostitution were in Nova Scotia in 1759, although as early as August 19, 1675 the Sovereign Council of New France convicted Catherine Guichelin, one of the King's Daughters, with leading a "life scandalous and dishonest to the public", declared her a prostitute and banished her from the walls of Quebec City under threat of the whip. Following Canadian Confederation, the laws were consolidated in the Criminal Code. These dealt principally with pimping, procuring, operating brothels and soliciting. Most amendments to date have dealt with the latter, originally classified as a vagrancy offence, this was amended to soliciting in 1972, and communicating in 1985. Since the Charter of Rights and Freedoms became law, the constitutionality of Canada's prostitution laws have been challenged on a number of occasions.

<i>Canada (AG) v Bedford</i> Supreme Court of Canada case

Canada (AG) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101 is a decision of the Supreme Court of Canada on the Canadian law of sex work. The applicants, Terri-Jean Bedford, Amy Lebovitch and Valerie Scott, argued that Canada's prostitution laws were unconstitutional. The Criminal Code included a number of provisions, such as outlawing public communication for the purposes of prostitution, operating a bawdy house or living off of the avails of prostitution, even though prostitution itself is legal.

Joseph Arvay Canadian lawyer

Joseph James Arvay, was a Canadian lawyer who argued numerous landmark cases involving civil liberties and constitutional rights.

<i>R v Tse</i> Supreme Court of Canada case

R v Tse, 2012 SCC 16 is a Supreme Court of Canada decision regarding the constitutionality of warrant-less wiretaps in emergency situations. The Court found that the emergency wiretap provisions found in section 184.4 of the Criminal Code infringes the search and seizure rights in section 8 of the Canadian Charter of Rights and Freedoms, and cannot be justified as a reasonable limitation under section 1 of the Charter due to the lack of accountability measures. In addition to the two parties to the case, the Court heard from the following interveners: the Attorney General of Canada, the Attorney General of Ontario, the Attorney General of Quebec, the Criminal Lawyers' Association (Ontario), the British Columbia Civil Liberties Association, and the Canadian Civil Liberties Association. The unanimous decision of the Court was the first Supreme Court of Canada decision written by Moldaver and Karakatsanis JJ.

References

  1. 1 2 3 Robertson, James R. (19 September 2003). "Prostitution". Department of Justice. Retrieved 2010-10-22.
  2. ↑ "Charter Challenge on Prostitution Filed Toronto Star March 21, 2007". Thestar.com. 2007-03-21. Retrieved 2010-10-22.
  3. ↑ "Bedford v. Canada Ontario Superior Court of Justice on September 28, 2010". Canlii.org. Retrieved 2010-10-22.
  4. ↑ Linda Nguyen (10 March 2011). "Government appeal argues no obligation to protect sex-trade workers". National Post . Retrieved 2 April 2011.
  5. ↑ Jayme Poisson (26 March 2012). "Prostitution law: Ontario's top court allows brothels, but soliciting ruled illegal". Toronto Star . Retrieved 26 March 2012.
  6. ↑ Canada v. Bedford Ontario Court of Appeal March 26 2012
  7. ↑ SCC to hear prostitution law appeal. CTV News Oct 25 2012
  8. ↑ The Canadian Press (25 October 2012). "Supreme Court to hear prostitution law appeal; brothel ban stays for now". Global News . Retrieved 25 October 2012.
  9. ↑ "Supreme Court of Canada - Scheduled Hearings". Supreme Court of Canada. Archived from the original on 15 January 2013. Retrieved 13 May 2013.
  10. ↑ Supreme Court of Canada: JUDGMENT TO BE RENDERED IN APPEAL. Dec 13 2013
  11. ↑ Press Release: Charter Challenge Launched to Strike Down Prostitution Laws. August 4 2007
  12. ↑ Downtown Eastside Sex Workers United Against Violence Society v. Attorney General (Canada), 2008 BCSC 1726 Dec 15 2008
  13. ↑ Sacha Ivy. The (In)Visibility of Sex Workers: A Politics of the Flesh. BC Civil Liberties Association 2010
  14. ↑ Canada. "B.C. court gives green light to prostitution laws challenge". The Globe and Mail. Retrieved 2010-10-23.
  15. ↑ Downtown Eastside Sex Workers United Against Violence Society v. Canada (Attorney General), 2010 BCCA 439 Oct 12 2010
  16. ↑ Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 Sept 21 2012 Archived 2012-09-25 at the Wayback Machine
  17. ↑ "Supreme Court strikes down Canada's prostitution laws". CBC News. 20 December 2013. Retrieved 21 December 2013.
  18. ↑ Supreme Court of Canada (20 December 2013). "CITATION: Canada (Attorney General) v. Bedford, 2013 SCC 72". DocumentCloud. The Knight Foundation. Retrieved 21 December 2013.
  19. ↑ "Canada lifts all restrictions on prostitution". Aljazeera. 21 December 2013. Retrieved 4 January 2014.
  20. ↑ House of Commons. C-36 An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts
  21. ↑ Statement by the Minister of Justice Regarding Legislation in Response to the Supreme Court of Canada Ruling in Attorney General of Canada v. Bedford et al. June 4 2014
  22. ↑ "LEGISinfo - House Government Bill C-36 (41-2)". Parliament of Canada. Retrieved 30 November 2014.
  23. ↑ Hasham, Alyshah (2022-02-24). "Controversial Harper-era sex work laws are constitutional, Ontario Court of Appeal rules". The Toronto Star. ISSN   0319-0781 . Retrieved 2022-03-01.
  24. ↑ Supreme Court of Canada. The King v. Cohen, [1939] S.C.R. 212 Archived 2013-04-15 at archive.today

Bibliography

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.