Municipalities and Regulation of Street-based Prostitution

This post will discuss the possibilities of a municipality’s jurisdiction to regulate street-based prostitution.

The following are the relevant facts for this post in context of R v Keshane:

  • The City of Edmonton enacted a bylaw prohibiting fighting in a public place, including consensual and non-consensual fighting.
  • The purpose of the bylaw is “to regulate the conduct and activities of people in public places to promote the safe, enjoyable, and reasonable use of such property for the benefit of all citizens of the City.”
  • The bylaw was enacted pursuant to Municipal Government Act, sections 7 (b) and 7 (c) which state:

A council may pass bylaws for municipal purposes respecting the following matters:

(a)    the safety, health and welfare of people and the protection of people and property;

(b)   people, activities and things in, on or near a public place or place that is open to the public;

(c)    nuisances, including unsightly property[.]

  • Renanda Lee Keshane was issued a ticket in violation of the bylaw in May 2009 and admitted to engaging in a fight in a public place.
  • The bylaw overlapped with some criminal provisions, namely assault, public disturbance and common nuisance.
  • Keshane challenged the validity of the bylaw for being ultra vires.
  • The trial judge held that the bylaw was invalid but the Court of Queen’s Bench reversed that decision, holding that the bylaw was validly enacted.
  • The Alberta Court of Appeal dismissed the appeal, agreeing with the Court of Queen’s Bench decision that the bylaw was validly enacted.

The Alberta Court of Appeal (the “Court”) upheld the decision that declared the bylaw as valid by relying on the province’s constitutional powers where such powers could be delegated to a municipality. Keshane’s application for leave to Supreme Court of Canada (“SCC”) was refused.

This decision reiterates the principle that bylaws may fall under more than one head of power, especially bylaws that have penal consequences, like a fine. In fact, the Court viewed this kind of penalty as a neutral factor since section 92(15) permits the province to punish by way of fines. Further, the Court upheld the bylaw as valid since the bylaw was aimed at activities not solely targeted by the Criminal Code, RSC, 1985, c C-46.

Notably, however, if a bylaw responds to a gap in validly enacted legislative schemes and acts as a proportional tool for police, then Courts will uphold a bylaw as valid (a proportional tool helps responds to circumstances that do not warrant a criminal conviction or permits police to better use their already limited resources[1]).

The Court also relied on the double aspect doctrine where neither the federal nor provincial provisions have a single dominant feature. Rather, both provisions have feature that are of “roughly equal importance”[2].

In light of this decision, five factors that a municipality will have to be cognizant of when enacting a proposed bylaw which is similar to Criminal Code provisions include[3]:

  • The bylaw’s purpose and effect;
  • The bylaw’s punishment does not meet the criminal threshold (i.e., the punishment does not a criminal record and those punished would view the punishment as less severe than a criminal conviction);
  • The bylaw must impose a fine or another alternative to imprisonment;
  • The bylaw must merely attack activities not targeted by the Criminal Code; and

For example, the bylaw must be enacted within a group of other offences that do not suggest criminal activity (ie urinating or bullying) but enacted in the scope of similar activities offends use of and enjoyment of public places

  • The bylaw’s focus includes persons indirectly affected by such activities in the proposed bylaw (like community members).

In light of this decision (absent the non-binding/persuasive-only application to Ontario’s jurisdiction) and in the context of Municipal Act, 2001, SO 2001, c 25 (“Municipal Act, 2001”), the possibility for Ontario municipalities to regulate street-based prostitution for purposes unrelated to the relevant criminal provisions and previous provisions declared invalid by the SCC is all too real.

In Westendorp v the Queen (“Westendorp”), the SCC declared a bylaw invalid for solely targeting street prostitution and offending the divisions of power.[4] In Canada (AG) v Bedford (“Bedford”), the SCC declared three prostitution provisions invalid for violating the Canadian Charter of Rights and Freedom, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c 11 and were not saved by Section 1.[5]

For instance, an Ontario municipality may very well enact a bylaw that is not aimed at the evils of prostitution, like in Westendorp[6], and it is not aimed at public nuisance, or exploitative and non-exploitative situations, like in Bedford[7]. An Ontario Municipality could rely on Municipal Act, 2001, sections 10(2) (specifically, the health, safety and well-being of persons, and the protection of persons and property), and Sections 92(13), 92(15), and 92(16) of Constitution Act, 1867[8].

Relying on these provisions and powers, a proposed bylaw’s purpose could be similar to that in R v Keshane: To provide safe and enjoyable public spaces by deterring a specific criminal act but the defined act targets activities beyond the Criminal Code.

Most importantly, however, any proposed bylaw would have to be distinguishable from the recently enacted Criminal Code provisions following Bedford. These provisions are commonly referred to as Bill C-36, which is now law. For example, in the context of Bill C-36, any proposed bylaw would have to be unrelated to either the movement of traffic or abolishing prostitution, which are some of the aims of the recently enacted communication provisions in the Criminal Code.[9]

Nevertheless, there may be overlap under the recently enacted Criminal Code provisions with such a proposed bylaw’s purpose—namely, protecting communities which is another aim of the recently enacted Criminal Code provisions and which would be similar to ensuring safe, enjoyable public spaces. However, it could be argued that a proposed bylaw enacted for such purposes named above (i.e., safe, enjoyable public spaces) and the recently enacted provisions are of roughly equal importance. Specifically, the proposed bylaw would fill a gap where the Criminal Code provisions do not address a community member’s right to enjoy public spaces free from prostitution and its related activities, and the proposed bylaw acts a proportional tool where street-based prostitution does not warrant criminal charges upon conviction. The proposed bylaw will also allow police to better use their resources and any proposed bylaw, again, would be aimed at activities not targeted by the recently enacted prostitution provisions.

While some municipalities regulate sexual services and related activities under the Municipal Act, 2001, these municipalities do so for the purposes of regulating or licensing related-businesses (i.e., strip clubs, massage parlours, etc).[10] These specifics cases examined bylaws enacted pursuant to Municipal Act, 2001, SO 2001, c 25, Section 10(2) in the context of business licensing; thus, these cases are not significantly similar but do offer some support for such proposal.

Despite all of the above, many questions would remain around scope of harm and how this harm is defined, and more obvious, the scope of enforcement (i.e., what would that look like), especially in light of Bedford and Bill C-36.




[1] R v Keshane 2012 ABCA 330 (CanLII) at para 23, leave to appeal to SCC refused, 35227 (9 May 2013) [“Keshane”].

[2] Keshane at para 18.

[3] See especially Keshane at para 26.

[4] Westendorp at paras 16 and 22.

[5] Bedford at paras 130-163.

[6] Westendorp v the Queen, [1983] 1 SCR 43, 983 CanLII 1 (SCC) [“Westendorp”].

[7] Canada (AG) v Bedford et al, 2013 SCC 72, [2013] 3 SCR 1101 [“Bedford”].

[8] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985 Appendix II, No 5 at Sections 92(13), 92(15), and 92(16).

[9] See Bill 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, 2nd Sess, 41st Parl, 2005, “Preamble” and cl 15 (as passed by the House of Commons 6 November 2011).

[10] See 2211266 Ontario Inc. (Gentlemen’s Club) v. Brantford (City), 2013 ONCA 300, 2013 ONCA 300 (CanLII); 679619 Ontario Limited (Silvers Lounge) v. Windsor (City), 2007 ONCA 7, 2007 ONCA 7 (CanLII); and 2211266 Ontario Inc., o/a Gentlemen’s Club v. The Corporation of the City of Brantford, 2012 ONSC 5830, 2012 ONSC 5830 (CanLII).

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