Public Consultation on Prostitution-Related Offences in Canada

Introduction

On December 20, 2013, in the case of Bedford v. Attorney General of Canada ¹, the Supreme Court of Canada found three Criminal Code prostitution offences to be unconstitutional and of no force or effect. This decision gives Parliament one year to respond before the judgment takes effect. Input received through this consultation will inform the Government's response to the Bedford decision.

You will find some specific questions on this issue at the end of this document. To put them in context, here is a brief overview of the current criminal laws addressing prostitution, the Bedford decision, and existing international approaches to prostitution.

Background

Prostitution is a complex and controversial social issue. Although there is a lack of consensus on how the criminal justice system should treat adult prostitution, it is generally acknowledged that prostitution poses risks to those involved and to the communities in which it is practised.

Current Criminal Laws Governing Prostitution

Adult prostitution is not illegal in Canada; however, the Criminal Code prohibits three types of prostitution-related activities:

• activities related to brothels, or "bawdy houses," as they are called in the Code (sections 210 and 211);
• procuring and living on the avails of prostitution (section 212); and
• communicating in a public place for the purposes of prostitution (section 213).

Child prostitution is illegal and is criminalized through prohibitions against purchasing sexual services from children as well as communicating in any place for that purpose (subsection 212(4)) and living on the avails of child prostitution (subsections 212(2) and (2.1)). These provisions were not affected by the Supreme Court of Canada's decision in Bedford.

The Supreme Court of Canada's Bedford Decision

The Supreme Court of Canada's decision in Bedford v. Attorney General of Canada found three Criminal Code prostitution provisions unconstitutional:

• the bawdy house offence with respect to the practice of prostitution (section 210 prohibits keeping and being an inmate of or found in a bawdy house);
• the living on the avails offence (paragraph 212(1)(j), which prohibits living in whole or in part on the earnings of prostitutes); and
• the communicating offence (paragraph 213(1)(c), which prohibits communicating in a public place for the purpose of engaging in prostitution or obtaining the sexual services of a prostitute).

The Supreme Court found that these offences violate prostitutes' right to security of the person, as protected by section 7 of the Charter, by preventing them from taking measures to protect themselves while engaging in a risky, but legal, activity. Such protective measures include selling sexual services indoors, hiring bodyguards and drivers, and negotiating safer conditions for the sale of sexual services in public places.

The Supreme Court's decision does not take effect for one year. If there is no legislative response, the result of this decision would be decriminalization of most adult prostitution-related activities:

• indoor prostitution (e.g. in a house or apartment, massage parlour, or strip club);
• providing services to prostitutes (e.g. as a bodyguard or a driver); and
• communicating for the purposes of purchasing or selling sexual services in public places (e.g. in the street).

Existing International Approaches to Prostitution

Internationally, prostitution is generally treated in one of three ways:

• Decriminalization/legalization: Jurisdictions such as Germany, the Netherlands, New Zealand and Australia have decriminalized and regulated prostitution.
• Prohibition: All states in the United States, with the exception of the state of Nevada, prohibit both the purchase and sale of sexual services, as well as the involvement of third parties (e.g. pimps) in prostitution.
• Abolition (the "Nordic Model"): Sweden, Norway and Iceland have adopted a criminal law response that seeks to abolish the exploitation of persons through prostitution by criminalizing those who exploit prostitutes (clients and third parties) and decriminalizing prostitutes themselves. These countries have also implemented social programs to help prostitutes leave prostitution (e.g. exit strategies and supporting services).

Canada's current approach is a hybrid of decriminalization and prohibition - prostitution itself is legal but almost all activities associated with prostitution are criminalized. A similar approach is taken in England, Ireland and Scotland.

[1] http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/item/13389/index.do?r=AAAAAQAHYmVkZm9yZAAAAAAB

1. Do you think that purchasing sexual services from an adult should be a criminal offence? Should there be any exceptions? Please explain.

2. Do you think that selling sexual services by an adult should be a criminal offence? Should there be any exceptions? Please explain.

3. If you support allowing the sale or purchase of sexual services, what limitations should there be, if any, on where or how this can be conducted? Please explain.

4. Do you think that it should be a criminal offence for a person to benefit economically from the prostitution of an adult? Should there be any exceptions? Please explain.

5. Are there any other comments you wish to offer to inform the Government's response to the Bedford decision?

6. Are you writing on behalf of an organization? If so, please identify the organization and your title or role: