This is another part of the same paper in the previous post for our (my partner and I) constitutional litigation class. In this part, we canvassed the history of prostitution law and prostitution law reform in Canada and abroad.
Placing the History of Prostitution Laws in a Canadian Context
The legislative goal at attempts to eliminate prostitution is not new to Canada and elsewhere. Angela Campbell, in her seminal text, Sister Wives, Surrogates and Sex Workers: Outlaws by Choice?, provides a historical overview of Parliament’s attempts to regulate and eradicate prostitution.[1]
The first prostitution laws in Canada existed under two separate Acts, the Indian Act, 1867 and An Act Respecting Vagrants, 1869.[2]
The provisions under the Indian Act made specific reference to Indian women and the provisions assumed all Indian women were prostitutes or lived in homes where prostitution occurred.[3]
Meanwhile, the Act relating to vagrants captured individuals from poor or low income backgrounds.[4] Then, when Canada enacted its Criminal Code, SC 1892 c 29, the 1892 Criminal Code associated prostitution with vagrancy.
Subsequently, in 1915, policy makers of the day recognized prostitution as an activity with the possibility of eradication in its entirety and began to make several amendments in the following years.[5]
Much like other laws, legislative amendments to the prostitution provisions within the Criminal Code[6] must be placed within a social and political context to understand the intentions of such provisions.
Throughout the years, the amendments to the prostitution provisions have been triggered by social or political movements. For instance, at the beginning of the twentieth century, the social purity movement dominated prostitution law reform.[7]
Then, from the 1950s until the 1970s and following World War II, scholars have documented legislative changes to the prostitution provisions and these changes, while not expressly drawn, can be connected to a growing international concern for human rights
i. Canada’s Commitment to Human Rights and Fundamental Freedoms
Following World War II, in 1945 at the General Assembly, the United Nations Declaration of Human Rights was unanimously adopted.[8] These events influenced Canada to create several special joint committees on human rights and fundamental freedoms.[9] The creation of these committees called for a Bill of Rights or a Statutory Canadian Declaration of Human Rights.
Following these recommendations, Canada enacted the Canadian Bill of Rights, SC 1960, c 44 (“Bill of Rights”) which is a federal statute that only applies to other federal statutes.[10]
After the enactment of the Bill of Rights, feminist legal intervention to the prostitution provisions included removing explicit reference to “women” in its vagrancy sections in 1972.[11] However, these interventions merely broadened who was captured by these provisions by its inclusion of the word “everyone” as opposed to “women”.[12]
Then, by the 1980s, Canada’s commitment to human rights and fundamental freedoms became entrenched by the adoption of its Charter.
The adoption of the Charter was and is related to Canada’s ongoing obligations to human rights and fundamental freedoms.[13] However, just a few years prior in 1978, the SCC released its decision, R v Hutt, [1978] 2 SCR 476 (“Hutt”), and provided a strict definition to what solicitation actually entailed. This decision prompted further prostitution law reform.
ii. From the Charter to R v Hutt: Prostitution Law Reform Following Hutt
In R v Hutt, the SCC held that the definition of solicitation meant something more than just offering sexual services for a price.[14] This strict definition did not translate to any sort of protection for women selling or offering sexual services and the law, at the time, continued to remain silent in its application to clients of sex workers.[15] Still, silence in the law does not mean that its application to clients remained non-existent.
After Hutt, Parliament instructed the Standing Committee on Justice and Legal Affairs to research and report on the solicitation provisions.[16] The report, however, only examined street-level prostitution, it did not examine prostitution that takes place in other contexts (i.e, in residences or establishments), and it only provided recommendations to address street-level prostitution.[17]
Following this report, the Federal Government established a Special Committee on Prostitution and Pornography (“the Special Committee”) and it first convened in 1983 to “study problems associated with pornography and prostitution and to carry out a program of socio-legal research[.]”[18]
The terms of reference that governed the Special Committee included gathering international understanding and experiences in addressing prostitution, as well as seeking public input through written submissions and in-person meetings.[19]
The Special Committee concluded with its publication of its report commonly referred to as The Fraser Report, after its chairperson Paul Fraser, in April 1985.[20]
The findings of the Fraser Report concluded with several recommendations to address the problems associated with prostitution and pornography.[21]
Some of these recommendations include the following:
- Consider removing economic and social inequalities which push women into prostitution through increasing support for social programs or social services geared toward current or former prostitutes;
- Consider researching prostitution further and consider treating it as a social problem while repealing provisions which do not protect prostitutes;
- Consider removing prostitution provisions that target both prostitutes and clients and refrain from treating prostitution as a nuisance-related activity;
- Consider permitting prostitutes to work in small groups and,
- Consider limiting the prostitution provisions that address exploitative situations to violent or threatening conduct, limiting prosecution to “violent and abusive procurers and pimps”, and establishing special police units to investigate and prosecute such instances.[22]
Aside from the uniqueness of the Special Committee, its findings also introduced the idea that the regulation of prostitution can take place in many forms. For example, under its terms of reference to research international understanding and experiences of regulating prostitution, the Special Committee examined other jurisdictions including the United States, Sweden, New Zealand and other countries.[23]
iii. United States: Legalized Prostitution is a Form of Legal Servitude
There are fifty jurisdictions governing and regulating prostitution with only one jurisdiction permitting legalized prostitution.[24] Policing of prostitution, however, is linked to social or community suffering.[25]
The jurisdiction permitting legalized prostitution is in the state of Nevada, with various counties permitting legalized prostitution in brothels or through local options established by those counties.[26]
While a layperson may believe legalized prostitution as a viable option to regulating and policing prostitution, the Fraser report found that various groups and sex workers prefer decriminalization over legalization because “[legalization] approaches a form of legal servitude.”
Despite slavery being a very real and valid concern, there are issues with conflating slavery and prostitution or prostitution-related activities. Primarily, these sorts of conflations between prostitution and slavery ignore the history of slavery in a Canadian context.
Further, when slavery is placed in a Canadian context with a Canadian definition of slavery, the notion that criminalizing prostitution as a means to end slavery fall apart.
In her book examining the history of slavery in Canada, Afua Cooper provides a slavery of definition in a Canadian context:
A useful definition of slavery is the robbery of one’s freedom and labour by another, usually a more powerful person. Violence and coercion are used to carry out the theft and to keep the slave captive in the condition of bondage and servitude. This definition applies to slavery in Canada. Laws were enacted and institutions created to rob persons of their freedom and labour and keep them in perpetual servitude. In the earliest era of colonial rule in Canada, both Aboriginal people and Africans and their descendants were enslaved (Aboriginal slaves were colloquially termed ‘Panis’). From 1428 to 1833, slavery was a legal and acceptable institution in both French and British Canada was vigorously practised (emphasis added).[27]
If the above definition is applied in a Canadian context, while assuming prostitution is a form of labour as it is in the sex workers’ rights movement, then enacting laws that prohibit prostitution is a robbery of one’s labour and subsequently, one’s freedom.
Even with the issues of conflating prostitution with slavery, one must never forget the history of slavery in a Canadian context.
iv. Sweden: Ending Exploitation and Fixing a Social Problem
Sweden sees the need to criminalize prostitution as a means to end exploitation and sees prostitution as a social problem.[28] While the Fraser report found that Sweden’s laws were restricted to exploitative situations, the Fraser Report did not distinguish what was exploitative and what was not exploitative.[29]
The Swedish government established several committees throughout the years and from these committees, the Swedish government passed laws to prevent prostitution.[30] The Swedish government also established education campaigns to “increase the awareness of both potential customers and young girls of the undesirability of encouraging or engaging in prostitution.”[31] These campaigns are born out of these committees’ suggestions, along with legislative recommendations.
Notably, the Committee on Sexual Offences, primarily made up of feminists in Sweden, did not recommend strict laws against customers. Laws against customers, the Committee found, tend “to drive prostitution underground” and further “hamper” helping prostitutes.[32] Again, one must be cautious what “help” actually entails for sex workers, since the Fraser Report did not define what these Committees meant by help.
When the previous Conservative government introduced the prostitution provisions in 2014, the government often referred to PCEPA as the Nordic Model, or a made-in-Canada Nordic Model.[33]
The Nordic Model originated from Sweden in 1999.[34] This law claims to criminalize only the buyers and claims to reduce prostitution.[35] However, much of these claims have been rejected through government reports or academic research.[36]
Further, Sweden passed the 1999 law without consultation with sex workers.[37] Sweden did not have valid numbers on prostitution prior to the legislative changes and sex workers are still criminalized, regardless of where they work (i.e., whether they work indoors or outdoors).[38]
The prostitution laws in Sweden considers all men who take part in sex industry are aggressors. The law assumes all women to be victims of “male violence and patriarchal oppression.”[39]
The prostitution laws in Sweden, also criminalizes promotion of sex work.[40] The prostitution laws limit sex workers to use indoor premises.[41] Sex workers can be evicted for engaging in sex work and if they are not evicted, renters run a risk of being charged for promoting sex work.[42] As a result, many renters do not rent a premises to sex workers due to fear and risk of criminal prosecution.[43]
Thus, sex workers who own a property, where they can safely engage in sex work, have two choices: either live with their loved ones or use the premises for their job.[44] The Nordic Model makes it impossible for them to do both. Sex workers loved ones could be arrested for promotion of sex work under current Swedish law, if the worker engages in selling her sexual services.[45] Thus, the law does not leave an option for the sex workers to establish families and pursue their career in safe manner.
v. New Zealand: Decriminalization to Prevent Violence and Exploitation
Historically, New Zealand adopted a similar approach to regulating prostitution as in Canada.[46]
But in 2003, New Zealand is a jurisdiction, along with New South Wales in Australia[47], that has decriminalized sex work through prostitution law reform.[48]
The intent of the Prostitution Reform Act, 2003 includes the following:
The purpose of this Act is to [decriminalize] prostitution (while not endorsing or morally sanctioning prostitution or its use) and to create a framework that—
(a) safeguards the human rights of sex workers and protects them from exploitation;
(b) promotes the welfare and occupational health and safety of sex workers;
(c) is conducive to public health;
(d) prohibits the use in prostitution of persons under 18 years of age;
(e) [and] implements certain other related reforms.[49]
Claims that prostitution will lead to an increase in human trafficking or sexual exploitation are often used to support criminalization of sex work. However, decriminalization simply means removing all the laws that criminalize prostitution, turning the law’s focus to more specific offences, like assault, kidnapping and other specific offences. Further, the claims that decriminalization would increase human trafficking ignore the context of human trafficking including the history of criminalizing Brown, Black and Indigenous peoples’ movements, bodies and sexualities through prostitution laws.
International Growing Concern for Human Trafficking
Support for the PCEPA is found within the international growing concern for human trafficking at domestic and international levels. Canada also has an international obligation to uphold its commitment as a signatory to protocols that fight against human trafficking.[50]
Recently, Bill C-452 received Royal Assent in June 2015.[51] This bill concerns harsher penalties for individuals charged with human trafficking and exploitation related offences.[52]
The SCC also released a decision in 2015 concerning the definition of exploitation and youth in the sex trade. This case delineates a non-exhaustive list of factors for trial judges to consider when deciding on sexual exploitation cases.[53] This list is embedded in the Criminal Code under section 153.
The SCC further states that even if a young person consents to a sexual activity, the Court “must be alive to Parliament’s direction in s. 153 that consent cannot be taken merely at face value where a young person is concerned.”[54] The SCC does not define “young person.”
The Royal Canadian Mounted Police has also produced multiple report on human trafficking, calling for increased support for policing.[55]
The above concerns relating to the international growing concern for human trafficking and sexual exploitation assumes all prostitution to be exploitative since all prostitution is human trafficking or leads to human trafficking.
Increasing International Support for the Nordic Model
In the past 15 years, Nordic countries have brought major changes to their prostitution laws.
Many lawmakers see the Nordic Model as empowering women. It is often described as a model that recognizes the inherent “definition of prostitution as a form of male violence against women[.]”[56]
The Swedish government has concluded that since the implementation of the Nordic Model, the number of women in visible prostitution has decreased.[57] However, this conclusion needs to be viewed with caution because the effects of the law is not entirely clear. May-Len Skilbrei and Charlotta Holmström state, “men involved in prostitution, women in indoor venues, and those selling sex outside the larger cities are therefore excluded from the scope of the report.”[58] It is hard to draw conclusions that the laws have reduced prostitution when many sex workers have moved off the streets and utilized the internet or moved indoors.
The French legislature implemented prostitution laws that resembled the Swedish model. The law was adopted with a vision to punish men who objectify women. In other words, similar to the Sweden, France adopted a legislation that prosecutes the buyers of sexual services instead of prostitutes.[59] The effects of the new legislation is unknown in France, as it has only been recently introduced. Many critics argue that sex workers will be further marginalized, like they have been in Sweden.[60]
In Ireland, Laura Lee, a sex worker, has challenged similar prostitution laws which alleged to target the buyer instead of the seller.[61] Laura Lee argues that the Nordic Model increases the vulnerability of sex workers to violence.[62] Lee claims that the law makes it difficult for the sex workers to screen customers because customers are refusing to use the online screening process.[63] As Laura Lee states “It is very, very useful tool to have [online screening] but in a further criminalized state it can be sadly abandoned, I am afraid”.[64]
Studies have also demonstrated that sex work has increased by eighty percent in the Irish Republic since the ban was introduced by the Northern Ireland.[65] This data demonstrates the reality of the Nordic Model: It does not abolish prostitution. Instead, the Nordic approach pushes prostitution to a different location or a different method (i.e., from outdoors to online).
The Problems with the Nordic Model
Given that no legal changes, in and of themselves, can eliminate prostitution, decriminalization seems to afford the fairest, least costly and most effective choice, and to offer the most opportunity for options for [sex workers].
Prostitution, like water, can be dammed in one place, but will simply find another outlet. Prostitution may change its form but it will not disappear so long as the society creates and fosters conditions where it must prevail. – National Action Committee on the Status of Women, Toronto
The above quote taken from the Fraser Report outlines exactly what data demonstrates as indicated in the previous section, outlining the reality of the Nordic Model.
Accordingly, there has been an overwhelming support to challenge the new prostitution laws in Canada. In fact, the Nordic Model, which influence Canada’s response to Bedford, is undergoing legal scrutiny as well.
Sandra Chu and Rebecca Glass argue that sex work in Sweden has not been reduced; rather, the Nordic Model prostitution laws have forced sex workers to work in illegal brothels or work alone in indoor locations.[66]
Chu and Glass found that, in Sweden, the Nordic Model negatively impacted sex workers whether they be indoor or outdoor sex worker.[67] It has increased violence against sex workers because clients negotiations are “done rapidly and in more secluded locales.”[68]
In addition, Chu and Glass indicate that the Nordic Model does not help sex workers to trust the authorities; rather, sex workers feel “hunted”.[69] Subsequently, sex workers are subjected to intensive search and questioning if found with their client.[70]
The reports are clear: The Nordic Model neither ends commercial sex work nor ends exploitation. It also does not help protect women or sex workers. Instead, the Nordic Model denies sex workers the right to control their working conditions and puts limits on sex workers’ safety. Through decriminalizing sex work and protecting sex workers’ Charter rights, Canada would continue to remain committed to its human rights obligations, as well as fundamental freedoms.
[1] Angela Campbell, Sister Wives, Surrogates and Sex Workers: Outlaws by Choice? (Surrey, England: Ashgate Publishing Limited, 2013) at 143-193 [Campbell].
[2]Yvonne Boyer, “First Nations Women’s Contributions to Culture and Community through Canadian Law” in Gail Guthrie Valaskakis et al, Restoring the Balance: First Nations Women, Community, and Culture, (Winnipeg: University of Manitoba Press, 2009) 69 at 77; Ibid.
[3] Yvonne Boyer, “First Nations Women’s Contributions to Culture and Community through Canadian Law” in Gail Guthrie Valaskakis et al, Restoring the Balance: First Nations Women, Community, and Culture, (Winnipeg: University of Manitoba Press, 2009) 69 at 77; An Act to amend “The Indian Act, 1876”, c 34, (1st Sess, 4th Parl) (assented to 15 May 1879); An Act further to amend “The Indian Act, 1880”, c 27, (2nd Sess, 5th Parl) (assented to 19 April 1884).
[4] Campbell, supra note 1 at 143-193.
[5] Campbell, supra note 1 at 157.
[6] Prostitution provisions exist in other legislations; however, this paper deals specifically with the Criminal Code provisions.
[7] See also John Lowman, “Deadly Inertia: A History of Constitutional Challenges to Canada’s Criminal Code Sections on Prostitution” (2011) Beijing Law Review 2 at 34 <http://www.SciRP.org/journal/blr> [Lowman].
[8] A. Cairns, “Charter Versus Federalism: The Dilemmas of Constitutional Reform” in The Constitutional Law Group, Canadian Constitutional Law, 4th ed (Toronto: Emond Montgomery Publications, 2010) at 724.
[9] P. Russell, “The Political Purposes of the Canadian Charter of Rights and Freedoms” in The Constitutional Law Group, Canadian Constitutional Law, 4th ed (Toronto: Emond Montgomery Publications, 2010) at 725-728.
[10] The Honourable Pierre Elliott Truduea, Minister of Justice, “A Canadian Charter of Human Rights, January 1968” in The Constitutional Law Group, Canadian Constitutional Law, 4th ed (Toronto: Emond Montgomery Publications, 2010) at 719-722; Canadian Bill of Rights, SC 1960, c-44.
[11] Lowman, supra note 7 at 36.
[12] Ibid at 36.
[13] See Lowman, supra note 7.
[14] Lowman, supra note 7 at 36; Campbell, supra note 1 at 160.
[15] Campbell, supra note 1 at 160.
[16] Lowman, supra note 7 at 36.
[17] Lowman, supra note 7 at 36-37.
[18] Canada, Special Committee on Pornography and Prostitution, Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution, vol 2 (Canada: Ministers of Supply and Services Canada 1985) at 683-687 [The Fraser Report].
[19] Ibid.
[20] James R Robertson, Prostitution, Revised 19 September 2003, online: <http://publications.gc.ca/Collection-R/LoPBdP/CIR/822-e.htm#cthefrasertxt>.
[21] The Fraser Report, supra note 18 at 683-687. Note: Though the recommendations include both prostitution and pornography with specific recommendations directed towards protecting children, this paper only considers recommendations relating to prostitution.
[22] The Fraser Report, supra note 18 at 683-684.
[23] The Fraser Report also examined Australia, England and Wales, France, West Germany, Denmark and the Netherlands. For purposes of this paper, we will only examine Sweden and New Zealand, as these are the two most commonly referred to models by prohibitions and sex workers’ rights activists (respectively).
[24] The Fraser Report, supra note 18 at 473-477.
[25] Ibid at 475.
[26] Ibid at 475.
[27] Afua Cooper, The Hanging of Angélique (Toronto: HarperCollins Publishers Ltd) at 70.
[28] The Fraser Report, supra note 18 at 502.
[29] Ibid at 502-504.
[30] Ibid at 502-504.
[31] Ibid at 504.
[32] Ibid at 504.
[33] Daniel Schwartz, “Sex Workers Like New Zealand law, not Canada’s new ‘Nordic model’ for prostitution”, CBC News (5 June 2014), online: CBC News <http://www.cbc.ca/news/politics/sex-workers-like-new-zealand-law-not-canada-s-new-nordic-model-for-prostitution-1.2665431>.
[34] Lowman, supra note 7 at 33.
[35] Vice, “The New Era of Canadian Sex Work” (2015), online: Vice <http://www.vice.com/en_ca/video/the-new-era-of-canadian-sex-work> at 00h:06m:22s.
[36] Canadian Alliance For Sex Work Law Reform, What Canada Can Learn from Sweden’s Laws that Criminalize the Purchase of Sexual Services (2014), online: <https://drive.google.com/file/d/0B3mqMOhRg5FeZ2R5U3ItUjJ5T3c/view> [Canadian Alliance].
[37] Sandra Ka Hon Chu and Rebecca Glass, “Sex Work Law Reform in Canada: Considering Problems with the Nordic Model” (2013) 51:1 Alta L Review 101 at 104 [Chu and Glass].
[38] Canadian Alliance For Sex Work Law Reform, What Canada Can Learn from Sweden’s Laws that Criminalize the Purchase of Sexual Services (2014), online: <https://drive.google.com/file/d/0B3mqMOhRg5FeZ2R5U3ItUjJ5T3c/view>.
[39] Chu and Glass, supra note 37 at 103; See also Lowman, supra note 7 at 33.
[40] Chu and Glass, supra note 37 at 113-114.
[41] Ibid.
[42] Ibid.
[43] Ibid.
[44] Ibid.
[45] Ibid.
[46] The Fraser Report, supra note 18 at 490.
[47] Scarlett Alliance, State by State Laws in Australia, online: <http://www.scarletalliance.org.au/laws/>.
[48] Prostitution Reform Act 2003 (NZ), 2003. Available online: http://www.legislation.govt.nz/act/public/2003/0028/latest/whole.html#DLM197821.
[49] Ibid at s 3. Available online: http://www.legislation.govt.nz/act/public/2003/0028/latest/DLM197821.html.
[50] Canada, Public Safety Canada (2012), “National Plan to Combat Human Trafficking”, online: Public Safety Canada <https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/ntnl-ctn-pln-cmbt/index-eng.aspx#toc-02> at 1.
[51] Bill C-452, An Act to amend the Criminal Code (exploitation and trafficking in persons), 2nd Sess, 41st Parl, 2015 (assented to 18 June 2015).
[52] Ibid.
[53] R v Barabash, 2015 SCC 29 at para 36, [2015] 2 SCR 522 [Barabash].
[54] Ibid at para 42.
[55] See especially Royal Canadian Mounted Police, “Domestic Human Trafficking for Sexual Exploitation in Canada” (Ottawa: RCMP, October 2013).
[56] May-Len Skilbrei and Charlotta Holmström, “The ‘Nordic Model’ of prostitution law is a myth”, The Conversation (16 December 2013), online: The Conversation <http://theconversation.com/the-nordic-model-of-prostitution-law-is-a-myth-21351>.
[57] Ibid.
[58] Ibid.
[59] Hannah Osborne, “Nordic Model of Prostitution Approved by European Parliament” in International Business Times (26 February 2014), online: International Business Times <http://www.ibtimes.co.uk/nordic-model-prostitution-approved-by-european-parliament-1438009>.
[60]Alexandra Topping, Northern Ireland prostitution ban divides opinion” in The Guardian (23 October 2014), online: <http://www.theguardian.com/society/2014/oct/23/northern-ireland-prostitution-ban-reaction>.
[61] UTV Ireland Staff, “Sex Workers in Ireland ‘up 80%’ since NI ban” in UTV Ireland (9 March 2016), online: <http://utv.ie/News/2016/03/09/Sex-workers-in-Ireland-up-80-since-NI-ban-55470>.
[62] Ibid.
[63] Ibid.
[64] “80% boost in Irish Republic sex workers after NI ban, says ex-prostitute”, News Letter (9 March 2016), online: <http://www.newsletter.co.uk/news/northern-ireland-news/80-boost-in-irish-republic-sex-workers-after-ni-ban-says-ex-prostitute-1-7264303>.
[65] Ibid.
[66] Chu and Glass, supra note 37 at 105.
[67] Ibid.
[68] Ibid at 106.
[69] Ibid.
[70] Ibid at 105-107.
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