CANADA’S ANTI-PROSTITUTION LAWS: A METHOD FOR SOCIAL CONTROL
“It feels like the Canadian public doesn’t understand our realities, especially when it comes to police violence and abuse. They’ve been taught that police are there to ‘serve and protect us’ and keep the peace. But what folks don’t know is that the Royal Canadian Mounted Police was originally created to control and manage the ‘Indian Problem’, which included using force, violence and coercion against our peoples. This is the RCMP’s living legacy.” (Native Youth Sexual Health Network & Families of Sisters in Spirit, 2013).
The above quote from the joint press release with Native Youth Sexual Health Network and Families of Sisters in Spirit provides a premise for this essay: that Canada’s current anti-prostitution laws are a method for social control, and within a colonial context, a method of controlling Indigenous bodies to exploit and dominate Indigenous lands.  Basil Davidson, in Columbus: the bones and blood of racism (1992), argues that if it were not for slavery that the “maturity of capitalism would have been a different one, and very conceivably a less ruthless and destructive one” (25). Before the arrival of Columbus to the Americas, it is reported that approximately 112 million Indigenous peoples were living on this continent and close to 18 million living in what is presently called United States and Canada (Wesley-Esquimaux, 2009, p. 14). Following contact with settlers, it has also been noted that nearly 90 to 95% of the Indigenous population had been “wiped out by epidemic disease, warfare, and famine, with most people dying within 100 years of contact” (Wesley-Esquimaux, 2009, p. 14). These effects of disease, warfare, and famine are important in understanding the effects of colonialism on Indigenous peoples. However, these are not the only ways that Indigenous bodies and lands have been exploited and dominated. One important tool for the colonizers, in addition to controlling the movement of Indigenous bodies, is the controlling and dominating of Indigenous sexualities and genders through regulation and policing.
Historically, for Indigenous peoples, “both gender roles were viewed as equal and necessary for the health and survival of the community” (Boyer, 2009, p. 71). When settlers first arrived to what is now called Canada, Indigenous women “made integral decisions about family, property rights, and education” (Boyer, 2009, p. 71). Still, today, Indigenous women are in dire circumstances. In Contributions to Culture and Community through Canadian Law, Yvonne Boyer (2009) highlights that the change in social status for Indigenous women in Canada can be traced with the “progression of colonialism” (72). One such example of the effects of colonialism for this group is the exorbitant number of missing and murdered Indigenous women. Even though the current Conservative Government dismantled the Sisters in Spirit initiative in 2010, which worked to document the missing and murdered Indigenous women, Indigenous women continue to dominate these statistics in comparison to their non-Indigenous counterparts (Sayers, 2012; Oppal, 2012). For instance, Indigenous women make up 3.8% of the total population; yet, they make up 10% of the total number of documented missing and murdered cases from 2000 to 2008 (Oppal, 2012). Indigenous women between the ages of 25-44 years are also five times more likely to die as a result of violence in comparison to non-Indigenous women in same age category (Native Women’s Association of Canada NWAC, n.d.). The Native Women’s Association of Canada (NWAC), a leading non-profit advocacy organization for Indigenous women, also states that while family violence is one area of violence that is heavily investigated and researched, steps must be taken to address violence perpetrated by strangers or acquaintances, especially among Indigenous women in the sex trade (NWAC, n.d.). Even though organizations that represent or advocate for Indigenous women’s safety and security at both national and international levels remained divided on the controversial subject of the decriminalization of the sex trade, this paper will argue that Canada’s current anti-prostitution laws are an extension of Canada’s colonial agenda to the present day. I will utilize Fanon’s arguments from The Wretched of the Earth that colonialism is violence to argue that Canada’s anti-prostitution laws constitute violence. Through a historical analysis of these laws I will show how they operate, including disproportionate enforcement, to create social control along the lines of race, gender and class to advance Canada’s colonial agenda. Additionally, I will utilize a Marxist perspective to address the question of whether racism and colonialism are connected.
RACISM AND COLONIALISM
To begin this essay, I will provide a working definition of colonialism that is relevant to Indigenous peoples’ experiences within a Canadian context. During this, I will also answer the question of whether racism and colonialism are connected. While one might argue that racism and colonialism are intrinsically interconnected, an analysis of both concepts indicates that racism can be seen instead as a consequence of colonialism. In When Black First Became Worth Less, Anton L. Allahar (1993) underlines that racial categorization of various groups were “applied in different ways [and] serve diverse ends and interests” and that these racial categorizations justified practices of slavery and colonialism (39). Central to this justification exists the Doctrine of Discovery, which is as “a dogmatic body of shared theories […] pertaining to the rightfulness and righteousness of settler belief systems and the supremacy of the institutions that are based upon those belief systems” (Miller, Rurur, Behrendt, & Lindberg, 2010, p. 94). Settlers saw Indigenous peoples as not fully human, but viewing Indigenous peoples in this light did not pertain to race. Instead, it is connected to a negation of their systems, a denial of the legitimacy of Indigenous systems, as viewed from the settlers’ perspectives. Linda T. Smith (1999) outlines that these negations happened by viewing Indigenous peoples as not fully human, and accordingly, they were viewed as not civilized enough to have systems, languages, and modes of thought (28). Thus, these negations were not initially based on race.
Race is a concept that has been used to justify actions or policies against certain groups as a consequence of colonialism. As such, a definition of race is necessary to understand the concept of racism within a colonial context. Allahar (1993) describes race and colour to “act as key social markers that provide individuals and groups with packaged meanings of themselves and others” (39). Sometimes these meanings have negative connotations and that when these meanings seek to “relegate people to subordinate positions in a system of hierarchical social rankings, racism is a result” (Allahar, 1993, p. 39). For the settlers, as stated above, Indigenous peoples were seen as not fully human and for some Indigenous peoples, they were not even seen as humans at all; they were otherized (Smith, 1999). The effects of otherizing Indigenous peoples based on the settlers’ view of Indigenous peoples indicates that they sought to displace Indigenous peoples socially, politically, and economically, in the quest for more resources, capital, or material things. In other words, settlers sought to exploit and dominate Indigenous peoples’ resources for imperialistic endeavours to acquire further capital and material need for production. Just as Davidson argued that if it were not for slavery the progression of capitalism would have been much different, less ruthless and destructive, and suggesting that the capitalism directed the colonization of Indigenous peoples. Both Allahar (1993) and Davidson (1992) argue that racism did not cause slavery to happen; rather, racism was a consequence of slavery. Certainly, the way slavery and these destructive effects of capitalism occurred, and how capitalism is connected to colonialism must be outlined to address whether racism is connected to colonialism.
Similar to racism and colonialism, Smith (1999) outlines that imperialism and colonialism is interconnected. Smith (1999) argues, however, that colonialism is “but one expression of imperialism” (21). When outlining European imperialism, Smith states that imperialism is used in four different ways including imperialism as economic expansion and imperialism as connected to discovery, conquest, exploitation and domination (Smith, 1999). For Indigenous peoples in Canada, this economic expansion is tied to this quest, the Fur Trade and other commodities of exchange value. Colonialism in the Canadian context is then tied to capitalism via European imperialism as a method for economic expansion. By the inherent exploitive structure and nature of capitalism, this created a differential in power relations between the Indigenous peoples and settlers. To analyze the complexities of these power relations, a brief exploration of Frantz Fanon’s arguments in both Wretched of the Earth and Black Skin, White Masks is desirable.
In Black Skins, White Masks, Fanon (2004) undertakes a psychological perspective to colonialism and inferiority/superiority. Then, in Wretched of the Earth (2008), he argues, the colonizer and the colonized are mutual constructions of one another, and that without the colonizer the colonized does not exist. Fanon’s analysis of colonialism fails to take into consideration these complicated power relations among settlers and Indigenous peoples. Before settlers arrived, Indigenous peoples lived a way of life that saw everything, from plants and animals, and everyone, from male to female, as equal and as beneficial to the social (Burrows, 2010). First, the alteration of existing cultures is missing from his analysis. Then, Fanon dichotomizes the differential in power relations within colonialism, which is characteristic of Western thought and academia, and Fanon allows the binaries prevalent within colonialism to become all-encompassing definitions through the dichotomization of the colonizer/colonized. Similar to Fanon, however, dialectical Marxist analysis is useful in understanding how the structure and nature of capitalism played in settlers/Indigenous peoples’ relations.
In addition to the above, Fanon premises his superiority/inferiority argument through the claim, that in the eyes of the white man, the Black man is the “missing link in evolution from ape to man” (Fanon, 2008, p. 1). This missing-link argument erases Indigenous peoples in the Americas. It is an erasure of their experiences, an erasure of their systems of being and an erasure of their very existence from his arguments. It asks where did Indigenous peoples come from, and if they did not originate from the Americas, then whom did Indigenous peoples discover and displace? One might posit that we all came from somewhere, namely Africa. But this further legitimizes the Doctrine of Discovery vis-à-vis imperialism, which justifies the domination and exploitation of Indigenous lands for economic profit and legitimizing colonialism and its effects. These arguments suggest that whoever has the biggest guns, both literally and figuratively, wins. Historically, through warfare and policing the Europeans appear by this argument to be the victor, and legitimize colonialism and all of its violence.
One can easily argue that racism and colonialism are connected. But colonialism did not occur because of racism, or vice versa. Rather, colonialism created the environment for racism to cultivate economically, politically and socially. This growth of racism within a colonial context is demonstrated through the construction of the Indigenous problem, or more specifically, the “Indigenous Question” (Smith, 1999, p. 90). The construction of the Indigenous problem, as highlighted by Smith, is a reoccurring theme within imperial and colonial endeavours to control and dominate Indigenous peoples including their lands. Smith (1999) argues that the Indigenous problem “originates within the wider discourses of racism, sexism, and other forms of position the Other” (90) and that “its neatness and simplicity gives the term its power and durability” (90). Moreover, Allahar (1993) argues that racism evolved, and that race has become quite meaningless; however its effects were real. For Canada’s Indigenous peoples, these effects are still very real. As outlined by Davidson (1992), it was racism that justified the invasion and the dispossession of lands as colonialism progressed. The invasion and dispossession of Indigenous lands still occurs through the quest for more capital accessible through the natural resource extraction industry, which occurs largely on Indigenous lands in a paternalistic manner that infantilizes Indigenous peoples.
Nevertheless, the question whether racism and colonialism are connected must still be answered. Racism is both an essential and effective tool to help facilitate in Canada’s colonial agenda. Colonialism, as an expression of European imperialism, created the environment for racism to develop, economically, politically and socially, to effectively relegate Indigenous peoples to dominate and exploit their lands. As such, colonialism is connected to the imperialistic quest for more material productions and similarly to Allahar’s statement in When Did Black Become Worth Less (1993), racism acted more like a relation of production, which allowed colonialism to persist and sustain itself within the capitalistic modes of production. If it were not for racism, would the ruthless effects of capitalism have occurred? Given that capitalism can utilize others tools for exploitation and domination, maybe. But we cannot predict what might have happened through a historical analysis. We can only use a historical analysis to understand the effects of these institutions. Racism, as a relation of production, persisted because it helped facilitate and sustain colonialism.
Colonialism for Canada’s Indigenous peoples can be seen centrally as an expression of imperialism and to quote previous Indian Affairs Minister Duncan Campbell Scott, “to get rid of the Indian Problem” (Leslie, 1978, p. 41). This goal to get rid of the Indian Problem still continues to this day. As Lee Maracle (1996) highlights the aims of the colonizer is “to break up communities and families, and destroy a sense of nationhood” (93). Not only are there more Indigenous children in state care than there were during the residential school era, Indigenous peoples experience high rates of criminalization, including arrest, detention, and remand (National Collaborating Center for Aboriginal Health, 2010; Government of Canada, 2013). Specifically, and as highlighted earlier, Indigenous women continue to go missing and murdered at much higher rates than their non-Indigenous counterparts demonstrating that colonial violence affects both race and gender. One might argue that there is something inherently wrong with Canada’s justice system but, a closer look at Canada’s colonial agenda indicates that it is designed to do exactly what it was meant to do: to further economic expansion and to get rid of the Indian Problem.
CANADA’S COLONIAL AGENDA
The skills and knowledge of Indigenous peoples upon settlers’ first arrival to the Americas were essential to the establishment of the colonies. For example, with respect to the fur trade, certain relations with Indigenous peoples were even encouraged by the Hudson’s Bay Company as being advantageous, socially, politically, and economically, especially those among white settlers and Indigenous women (Mawani, 2001). As such, the relations between those Indigenous fur traders providing for settlers the raw material of furs were essential to this imperialistic venture. Seeing the Indigenous person as a partner was an effective means to allow the colonial agenda to persist and sustain itself, insofar that these relations did not upset these modes of production Eventually, however, such skills and knowledge became irrelevant and obsolete as more Europeans arrived and disrupted the initial relations between settlers and Indigenous peoples. As the movement of more Europeans to Canada increased, the reliance on Indigenous Nations for survival was minimized. In other words, Indigenous peoples became excluded from the relations of production.
Although initially the relations with Indigenous Peoples were economically, politically, and socially favourable, once the scales of power began to tip in favour of European settlers, these relations proved to be more of a nuisance. Throughout the 19th century, various treaties were signed. An indication of that had become of these relations, treaties were signed and viewed as “less expensive and more acceptable than armed conflict” (Comack, 70). That these treaties were “less expensive and more acceptable than armed conflict” indicates the intention in signing them was to deal with what had become undesirable relations (Comack 70). These treaties followed a change in the relations of productions and can be seen as an economically motivated move for settlers. These treaties also delineated land use, and how it was to be used economically among Indigenous peoples. Once Indigenous peoples were segregated to reservations through the signing of treaties, the Indigenous problem was seen as fixed within settler policy discourses.
One of the other strategies for legitimizing this colonial agenda included the enactment of the Indian Act, not without coincidence enacted the same year as the confederation of Canada in 1867 (Comack, 2012). With the enactment of the Indian Act, Indian Affairs agents were created, legislated and legitimized. The tasks of the Indian Affairs agents were to regulate and police Indigenous peoples. The policing and regulation of Indigenous peoples is demonstrated most notably through the establishment of the residential schools, which were designed to forcibly remove Indigenous children from their homes with hopes of them assimilating into Canadian settler society. The following quote from then-Indian Affairs Minister Duncan Campbell Scott (Salem-Wiseman, 1996), highlights this assimilationist agenda:
It is the opinion of the writer that…that Government will in time reach the end of its responsibility as the Indians progress into civilization and finally disappear as a separate and distinct people, not by race extinction but by gradual assimilation with their fellow-citizens. (p. 120).
Again on the question whether race is connected to colonialism, the above quote demonstrates the goal was to have Indigenous populations gradually assimilate into Canadian society. This would appear to be an attempt to deny that Indigenous people were of a distinct separate group from race. This assimilationist agenda remains an additional example colonial violence that Indigenous peoples experienced both currently and historically.
Shortly following the confederation of Canada and the enactment of the Indian Act, the North West Mounted Police (NWMP) was established in 1873 (Comack, 2012, p. 67). Today, the NWMP exists as the Royal Canadian Mounted Police (RCMP) (Comack, 2012, p. 66). The NWMP, according to Comack (2012), “played an instrumental role in carrying out this colonial project” (73). One of the many roles that the NWMP played was to enforce these government assimilation policies, which included assisting Indian Agents with the removal of Indigenous children from their homes and returning Indigenous children to the residential schools if they ran away (Comack, 2012). Furthermore, the creation of the NWMP is also inherently connected to the capitalistic modes of production. Comack (2012) stresses the plans of John A. MacDonald, the prime minister at the time of the creation of the NWMP, with his primary concern being to “keep the peace between Aboriginal people and settlers in order to encourage economic development” (74). As such, there were economic benefits to both keeping the peace between Indigenous peoples and settlers. These economic benefits can be connected to the settlers’ economic concerns in the signing of the treaties. In consequence, the role of the NWMP in the colonial agenda is that of policing and regulating the movement of Indigenous bodies on Indigenous lands.
As stated earlier, Maracle (1996) concisely states the aim of colonizer, “is to break up communities and families” (93). The forced removal of Indigenous children contributes to this aim of the colonizer through assimilationist attempts. The policing agency, the NWMP/RCMP, simultaneously furthers Canada’s colonial agenda through protecting economic interests. Comack (2012) notes that the NWMP is there to protect the economic pursuits of the settlers. Even though Fanon dichotomizes the relationship between the colonizer/colonized, the premise of his argument that colonialism is violence is quite useful in understanding the relation between the settlers and Indigenous peoples.
In Wretched of the Earth, Fanon argues that colonialism is violence (Fanon, 2004). For Fanon, colonial violence seeks to dehumanize the colonized. For settlers this dehumanization of the Indigenous peoples originated with imperialistic endeavors, seeing Indigenous peoples as the Other. The role the NWMP played in colonialism and the role the RCMP continues to play in assisting with the implementation of the colonial agenda are tied to the economic pursuit for more capital, by exploiting and dominating Indigenous lands. Fanon (2004) states, “For a colonized people, the most essential value, because it is the most meaningful, is first and foremost the land” (9) and controlling and dominating the lands of Indigenous peoples is essential to actualize the colonial agenda. In order to help facilitate the exploitation and domination of Indigenous lands, the colonizer needs to seek to control and dominate Indigenous bodies.
HISTORY OF CANADA’S ANTI-PROSTITUTION LAWS
An effective and essential way to exploit Indigenous lands is to control the movement of Indigenous bodies on the land. Controlling the movement of Indigenous bodies on Indigenous lands has been done through various means from the signing of the treaties to the segregation of Indigenous peoples by creating reservations, to the enactment of the Indian Act, and the creation of the NWMP and its living legacy in the RCMP. As stated in the introduction, before settlers arrived, gender roles within Indigenous systems were non-hierarchal in structure and Indigenous women were central to Indigenous systems of being and existence. Yet, today, Indigenous women are in dire circumstances and Boyer (2009) highlights that the change in social status for Indigenous women in Canada can follow the “progression of colonialism” (70).
This progression of colonialism began with the subordination of Indigenous women. Though relations between Indigenous women and the settlers were encouraged for economic, political, and social reasons, these relations were primarily sexual in nature (Mawani, 2001). The settlers saw the benefits of maintaining these relations with Indigenous women; however, the relations were exploitive in nature and structure since the intent behind these relations, which included the quest for more resources, was also exploitive. With the increase of Europeans moving to the Americas, there was also an increase in European women. The relations between the settlers and Indigenous peoples, mainly Indigenous women, began to change socially and politically. The relations between settlers and Indigenous women began to become more of a nuisance as the European women were set up as more desirable, upsetting the relations of productions between settlers and Indigenous women.
As more white women became readily available to start families of their own with settler men, Indigenous women’s position in society diminished further. Eventually, Indigenous women were painted as being overly promiscuous (Mawani, 2001). With these new relations that devalued Indigenous women even more, efforts to socially construct Indigenous women as beings that needed additional regulation and policing followed. The laws that policed and regulated women included vagrancy laws, which were adopted from Europe before colonization (Shaver, 2012). However, one of the most underreported legislative changes that occurred in the Indian Act relates to this increased regulation and policing of Indigenous women’s bodies through the enactment of Canada’s first anti-prostitution laws.
Lee Maracle, in I am Woman, describes legislation and laws as tools to suppress the resistance to domination by the colonized. Maracle (1996) writes, “laws are constructed by the occupying force to facilitate the suppression of any resistance from the dominated” (93). As a result of some of these laws, Indigenous women were eventually constructed as being more promiscuous which violated Western gender norms. The social construction of the Indigenous women as being promiscuous and violating Western gender norms was a result of settler attempts to subjugate Indigenous systems of being and specifically dehumanize Indigenous women. Shortly after the Indian Act was in place, sections were included to exclusively deal with regulating and policing of Indigenous women’s bodies through the social construction of the prostitute, as a form of social control. In 1879, sections were added to the Indian Act, specifically targeted keepers of “houses of prostitution” and houses explicitly included wigwams, or Indigenous peoples’ houses (Boyer, 2009). Again, these legislative changes can be tied to the aims of the colonizer, to break up families and communities authorizing the police and Indian Affairs agents access to the houses of Indigenous people on spurious grounds.
Following this, several other sections were included, but were later repealed and replaced in 1880 and 1884. Even though these sections were repeatedly repealed and replaced, these changes increased the force and effect of these laws on Indigenous women bodies. Boyer (2009) writes, “these sections of the Indian Act underwent several revisions, each adding more force to the legislation” (78). Because these laws originated under the Indian Act, it indicates no attempts to criminalize non-Indigenous men since the Indian Act policed Indigenous bodies and lands exclusively. As stated earlier, the definition of “houses of prostitution” expressly included wigwams, presuming that wigwams were disorderly by nature (Boyer, 2009). Moreover, the definition of a prostitute appeared to define and treat all Indigenous women as prostitutes (Mawani, 2001). As the colonizers began to socially control Indigenous women’s bodies through legislation, the aim of the colonizer becomes clear. By attacking the center of Indigenous systems of being and existence, Indigenous women, colonizers controlled the movement of bodies by limiting the Indigenous women’s role within settler society through the dehumanization of Indigenous women as both women and Indigenous people.
Presently, Canada’s anti-prostitution laws exist under the Criminal Code of Canada. Logically, one can see that the criminalization of the Indigenous peoples is part of Canada’s colonial agenda with the creation of the Indian Act in 1867 and then the Criminal Code of Canada in 1892. Indigenous families had a false choice as to whether their children would attend residential school or not. It was either the Indian Agents would forcibly remove their children, or they would be arrested and still, their children would be taken to these schools. With the construction of the Indigenous woman as the prostitute, Indigenous women were dehumanized both as women and Indigenous beings. Additionally, Indigenous women were further criminalized with removal of these sections from the Indian Act and then the creation Criminal Code of Canada. Today, street-based sex workers make up 5% of the total sex work population and Indigenous sex workers constitute 20% of street-based sex workers (POWER, 2012, p. 5; NWAC, n.d.). Additionally, street based sex workers also comprise 90-95% of the total anti-prostitution charges laid (O’Doherty, 2011). Furthermore, the Missing Women’s inquiry also raised concerned that serial killer Robert Pickton targeted Indigenous women given their status in present-day Canadian society, less than human (Oppal, 2012). Lee Maracle (1996) highlights this dehumanization with the following quote,
“The denial of Native womanhood is the reduction of the whole people to a sub-human level. Animals beget animals. The dictates of patriarchy demand that beneath the Native male comes the Native female. The dictates of racism are that Native men are beneath white woman, and Native females are not fit to be referred to as women.” (p. 17-18)
This racism is both an essential and effective tool to help facilitate Canada’s colonial agenda. Colonialism, as an expression of European imperialism, created the environment for racism to develop, economically, politically and socially, to effectively relegate Indigenous peoples to dominate and exploit their lands. Racism, as a relation of production, allows colonialism to persist and sustain itself economically, politically, socially, and even ideologically. Within the modes of production, the superstructure reinforces the base via dominant ideologies and current legislation. Colonizers further their aim through control and domination of Indigenous lands and Indigenous bodies by attacking the center of Indigenous systems of being and existence, Indigenous women .One might argue that there is something inherently wrong with Canada’s justice system with the increasing criminalization of Indigenous peoples and the unsolved missing and murdered Indigenous women. But Canada’s colonial agenda indicates that it is designed to do exactly what it was meant to do: to further economic expansion and to get rid of the Indian Problem.
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 While I acknowledge that there are numerous Indigenous nations and identities within Canada, for purposes of this essay, I will be using the term Indigenous peoples to refer to this population as a whole since First Nations, Métis, and Inuit identities have experienced the effects of colonialism, albeit in a myriad of ways. Yet, where it is necessary and possible, I will differentiate between appropriate nations and identities.
 I emphasize the word “documented” because, as reported by Native Women’s Association of Canada (NWAC), there is controversy over the difference in definition between murder, negligence death, and suspicious death. The high number of classifications of suspicious deaths, which are reported by the police as natural or accidental, raises concerns among family and community members, who argue it is a form of police bias (NWAC, n.d.).