#Prostitution in the Indian Act and Criminal Code (#PCEPA and #C36)

This is part of a series where I will outline and discuss on where and how prostitution provisions read in the Indian Act, and contrast/compare with prostitution provisions in the present-day Criminal Code (primarily, amendments made under Bill C-36). Often when people talk about the Indian Act, discussions on such provisions are often erased. I am not the first to write about these provisions (you can read this essay I authored when I first wrote about these provisions and you can see the sources for such knowledge).

Both of these Acts (below) are amending Acts, meaning they change/amend legislation already enacted (i.e., Indian Act and Criminal Code). For the historic legislation, the amending Act changes the Indian Act and for the contemporary legislation, the amending Act is the Act (Bill C-36, or Protection of Communities and Exploited Persons Act “PCEPA”) in response to Canada (Attorney General) v Bedford, 2013 SCC 72. The amending Act provision changing the Indian Act provisions criminalizing Indigenous women reads,

If any person, being the keeper an any house, allows or suffers any Indian woman to be or remain in such house, knowing, or having probable cause for believing, that such an Indian woman is in or remains in such house with the intention of prostituting herself therein, such person shall be deemed guilty of an offence against this Act, and shall on conviction thereof, in a summary way, before any Stipendiary Magistrate, Police Magistrate or Justice of the Peace, be liable to a fine of not less than ten dollars, or more than one hundred dollars, or to imprisonment in any gaol or place of confinement other than a penitentiary, for a term not exceeding six months (C-34, 1879, An Act to Amend the “Indian Act, 1876”).

This provision criminalized anyone who permitted an “Indian woman” to remain in a public house who committed certain offences. The certain offence included prostitution or the intention of prostituting herself. Thus, there was no need to actually engage in prostitution; rather, there simply had to be an intention to engage in prostitution. It is unknown how someone had evidence that an Indian woman was intending to prostitute herself; yet, it is safe to assume that simply being inside a “public house” was evidence of such intention. This provision operates in a similar way to the communication provisions as well as the bawdy house provision in PCEPA (i.e., being present in an area known for prostitution).

While some people argue that the PCEPA removed the bawdy house provisions, it did not; PCEPA amended the definition of the bawdy house to remove any reference to prostitution in its definition. The bawdy house definition now reads,

(2) The definition “common bawdy-house” in subsection 197(1) of the Act is replaced by the following: “common bawdy-house” means, for the practice of acts of indecency, a place that is kept or occupied or resorted to by one or more persons (C-36, 2014, 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).

Indecency or indecent criminal conduct (which the Crown must prove beyond a reasonable doubt) is defined as the following,

  1. That, by its nature, the conduct at issue causes harm or presents a significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in and thus formally endorsed through the Constitution or similar fundamental laws by, for example

    1. confronting members of the public with conduct that significantly interferes with their autonomy and liberty; or
    2. predisposing others to anti-social behaviour; or
    3. physically or psychologically harming persons involved in the conduct, and
  2. That the harm or risk of harm is of a degree that is incompatible with the proper functioning of society (R v Labaye, 2005 SCC 80 at para 62)

So, indecency has two elements: 1) “The first question is whether the conduct at issue harmed, or presented a significant risk of harm to individuals or society” (R v Labaye at para 65); AND 2) the second question is whether the “degree of alleged harm rose to the level of incompatibility with the proper functioning of society” (R v Labaye at para 71).

It appears that PCEPA tried to impose that prostitution “interferes with [a prostitutes] autonomy and liberty”; “predispos[es] people to anti-social acts or attitudes” (i.e., like “humiliating stereotypes of women as objects of sexual gratification”, R v Labaye at para 67); or contributes to physical or psychological harm to the persons involved in the conduct (R v Labaye at para 68); however, this imposition ignores how the criminal law prevents prostitutes from exercising autonomy and liberty over their own bodies; creates the assumption that prostitution contributes to harmful anti-social acts or attitudes about prostitutes/prostitution (which in turn ignores how criminalization of such acts or persons contribute to stigmatization and victimization of prostitutes or prostitution); and attempts to impose that prostitution physically or psychologically harms persons (namely, prostitutes) involved in prostitution.

On this last point (physical and psychological harm in prostitution), this imposition ignores how society’s ideas about prostitution and prostitutes contribute to the physically or psychological harm to persons involved in prostitution (i.e., that the violence prostitutes experience is deserved or their own fault). We see support for this statement (that the violence prostitutes experience is their own fault) when Senator Donald Plett disclosed the real intent of PCEPA by stating, “Of course, we don’t want to make life safe for prostitutes; we want to do away with prostitution.”

In reality, however, trying to impose an “indecency” definition into prostitution places the burden on prostitutes to try to end the violence that they experience instead of focusing on the harm that criminalization of prostitution creates in a sex worker’s life.

Others also argue that the PCEPA “allow” sex workers to work indoors; however, the PCEPA criminalizes sex workers who work indoors by preventing sex workers from implementing safety enhancing measures (i.e., security, screening mechanisms, or drivers, to name a few). In fact, PCEPA assumes all relationships with a sex worker are exploitative and it is up to the sex worker or person charged under such provisions (i.e., material benefit provisions, advertising provisions, etc) that criminalize relationships (professional or personal) with the sex worker to prove otherwise.

Any person who appears, acts or behaves as master or mistress, or as the person having the care, government or management of any house in which any Indian woman is, or remains for the purpose of prostituting herself therein, shall be deemed and taken to be the keeper thereof, notwithstanding he or she may not in fact be the real keeper thereof (C-34, 1879, An Act to Amend the “Indian Act, 1876”).

This second provision assumes any house where any Indian woman is or remains for the purpose of prostitution is such a house that is used for prostitution. A person did not have to actually be the keeper of the house in question; rather, the person just had to appear, act or behave as having the care, government or management of any house where any Indian woman is or remains for the purpose of prostituting herself.

This second provision is similar to PCEPA’s and other legislation relating to procurement. the PCEPA provision reads,

286.3 (1) Everyone who procures a person to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(1), recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years (C-36, 2014, 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).

Both of the second provisions (in the Indian Act and the Criminal Code) assume that anyone who provides housing to an Indian woman (Indian Act) or who recruits, holds, conceals or harbours a person who offers or provides sexual services or who exercises control, direction or influence over the movements of that same person commits such an offence. So, either provision assumes that any person who provides housing or a safe indoor working space to an Indian woman, which were assumed to be prostitutes or engaging in prostitution (and arguably, these same assumptions still exist today), is providing a space for an Indian woman to prostitute herself or a person who offers or provides sexual services for consideration; the provisions assume that simply staying in the same location (i.e., working indoors with others) an Indian woman or a person who offers or provides sexual services for consideration is engaging in prostitution. Explicitly, the provisions prevent prostitutes from implementing safety enhancing measures, including working indoors, at the same location and with security, other workers or other people present.

Further discussion is in the following table:

 

Historic Legislation (pre-1972) Contemporary Legislation[1] Discussion[2]
C-34, 1879, An Act to Amend the “Indian Act, 1876”

 

cl 7 (“public houses”): “If any person, being the keeper an any house, allows or suffers any Indian woman to be or remain in such house, knowing, or having probable cause for believing, that such an Indian woman is in or remains in such house with the intention of prostituting herself therein, such person shall be deemed guilty of an offence against this Act, and shall on conviction thereof, in a summary way, before any Stipendiary Magistrate, Police Magistrate or Justice of the Peace, be liable to a fine of not less than ten dollars, or more than one hundred dollars, or to imprisonment in any gaol or place of confinement other than a penitentiary, for a term not exceeding six months.”

 

C-36, 2014, 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

 

Cl 12. (1) The definition “prostitute” in subsection 197(1) of the Act is repealed.

 

(2) The definition “common bawdy-house” in subsection 197(1) of the Act is replaced by the following:

 

“common bawdy-house” means, for the practice of acts of indecency, a place that is kept or occupied or resorted to by one or more persons;

– Does not distinguish between Indigenous women who work from their homes

– Assumes all Indigenous women in any bawdy house to be a prostitute

– Anyone who keeps a bawdy house where an Indigenous woman is present is criminalized (thus, anyone who lives with an Indigenous woman or visit an Indigenous woman is criminalized)

C-34, 1879, An Act to Amend the “Indian Act, 1876,”

 

cl 8 (“penalty for harbouring Indian prostitutes”): “Any person who appears, acts or behaves as master or mistress, or as the person having the care, government or management of any house in which any Indian woman is, or remains for the purpose of prostituting herself therein, shall be deemed and taken to be the keeper thereof, notwithstanding he or she may not in fact be the real keeper thereof.”

286.3 (1) Everyone who procures a person to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(1), recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years – Criminalizes those who provide housing to Indigenous women and assumes all those who provide housing for Indigenous women that they are harbouring Indigenous prostitutes.

[1] I only refer to Bill C-36 since this bill is the most recent changes to Canada’s prostitution provisions. I include contemporary legislation in contrast to historic legislation to draw comparisons—there is very little change from previous provisions to present provisions.

[2] Much of the comments remain the same for many provisions/amendments since the laws’ effects (i.e., criminalizing Indigenous women’s bodies) remain largely the same.

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