Women's Health, Studies, Feminism and Ethics

[1] “It made street solicitation a status offence of “vagrancy” for women unable to provide a “good account” of themselves. Disruptive or annoying behaviour was not a prerequisite for detention and once the status of streetwalker was established, conviction followed more or less automatically. The purpose of the law was to provide police with the power to get prostitutes off the streets when necessary, and to alleviate the land use conflicts and problems of public disorder associated with the operation of brothels” (STAR submission to Solicitation subcommittee, 2005)

S.N.S. 1759 (1st) c.1 An Act for regulating and maintaining an House of Correction or Work-House within the Town of Halifax, and for binding out of Poor Children

II. That it shall and may be lawful for the Justices of the Peace in their General Sessions, or for any one Justice of the Peace out of court, to send and commit to the said house of correction, to be kept, governed, and punished according to the rules and orders thereof, all disorderly and idle persons, and such who shall be found begging....persons of lewd behaviour...; upon due conviction of any of the said offences or disorders.

[2] 29 Vict c. 8

[3] Note on Nomenclature

The Criminal Code, like other Acts of Parliament (statutes), is subject to periodic revisions, consolidations and amendments which may change the numbering of sections. Currently statutes are indexed by year, each act bearing a unique chapter number, indicated by ‘c.’, e.g. c.34. Bills originating in the House of Commons also bear a C nomenclature prior to becoming law, e.g. C-46.

The Statutes of Canada have been revised six times since confederation (1886, 1906, 1927, 1952, 1870, 1985), and each set of volumes consists of all of the acts in force at that time in their current form.

The current version of the Criminal Code, first enacted in 1892 was last consolidated in 1985, and hence is referred to as R.S. 1985 c.34, being chapter 34 of the 1985 Revised Statutes of Canada. For reference the previous 1970 version is cited as 1953-4 c. 51, appearing in the R.S.C. 1970 as c. 34. Changes affecting prostitution occurred in 1906, 1915, 1953-4, 1969, 1972 and 1985.

The major changes have been in the vagrancy-soliciting-communicating provisions, currently section (s.) 213 since 1985, under Part VII Disorderly Houses, Gaming and Betting.

Prior to this the relevant provision was s. 195.1, created in 1972 (see below). This in turn replaced s. 175(1) which was a renumbering of 164(1) dealing with vagrancy and included under Part IV Sexual offences, public morals and disorderly conduct. At that time there were five vagrancy clauses (a-e). Clause (c), i.e 164(1)(c) addressed the crime of prostitution and was colloquially referred to as Vag. C.

The 1972 Criminal Law Amendment Act c. 13 C-2 represented a major change. S.12 repealed 175(1) (a-c) of the 1970 code, while s. 15 added 195.1, which effectively reconstructed vagrancy as soliciting. (j) became living on the avails. Prior to this the other prostitution provisions were in Part V Disorderly Houses.

[4] See: Extracts of 1892 statute - S.C. 1892, c. 29.

Section 175(1)(c) deemed every woman a vagrant who:

‘being a common prostitute or nightwalker is found in a public place and does not, when required, give a good account of herself.’

Repealed in 1972 following the Report of the Royal Commission on the Status of Women (1970), and replaced by section 195.1 (which see, below)

Ss 185, 186 dealt with procurement. See also Ss 207-8 regarding ‘defilement’, and 198 (bawdy-house)

[5] Criminal Law Amendment Act, 1972, S.C. 1972, c. 13. Received Royal Assent 15th June, 1972.

Replaced 175(1)(c) with 195.1, which now read:

‘Every person who solicits any person in a public place for the purpose of prostitution is guilty of an offence punishable on summary conviction.’

A 1983 amendment made this applicable to either sex

Section 198(1)(d) provided that a previous conviction for keeping a disorderly house amounted to proof of the nature of the premises in subsequent proceedings. This section was declared to be of no force or effect (R. v. Janoff (1991))

In 1985, s 195.1 was replaced by C-49, as s 213 which included reference to motor vehicles. C-15 (1988) also made provision for obtaining the services of a minor (under the age of 18).

[6] S. 213 created the offence of “communicating in a public place for the purposes of prostitution” in 1985

[7] “The effect of the presumption is to compel prostitutes to live and work alone, deprived of human relationships, save with those whom they are prepared to expose to the risk of a criminal charge and conviction and who are themselves prepared to flaunt that possibility. By this presumption, prostitutes are put in the position of being unable to associate with friends and family or to enter arrangements which may alleviate some of the more pernicious aspects of their frequently dangerous and dehumanizing trade. The predictable result is to force prostitutes onto the streets or into the exploitive power of pimps, thereby undercutting the very pressing and substantial objective which the presumption was designed to address.” Per McLachlin J (dissenting)

150. We recommend that section 164(1) (c) of the Criminal Code be repealed.

151. We recommend that section 164(1) (a) of the Criminal Code be repealed.

(at that time, the vagrancy provisions were s. 164.1, subsequently renumbered as 175(1) in 1970, prior to repeal in 1972)

[9] 72.12 Vagrancy and Victimized Women

Whereas, The vagrancy sections of the Criminal Code open the door to arbitrary application of the law by the police and place women under the potential control of the police; and, Whereas, Vagrancy and prostitution are fundamentally social and not criminal problems; therefore,

RESOLVED, That the National Council of Women of Canada request the Government of Canada to repeal the vagrancy sections of the Criminal Code; and, further,

RESOLVED, That the National Council of Women of Canada request the Government of Canada to provide an adequate fund to support facilities and programs designed to rehabilitate female prostitutes and to prevent young girls from becoming prostitutes.

[10] Special Committee on Pornography and Prostitution (Chair: Paul Fraser): Pornography and Prostitution in Canada (1985), Ottawa, Ministry of Supply and Services.

“The fact that we have special laws surrounding prostitution does not, however, result in curtailing all of the worst aspects of the business or in affording prostitutes the same protection as other members of the public. Indeed, because there are special laws, this seems to result in prostitutes being categorized as different from other women and men, less worthy of protection by the police and a general attitude that they are second class citizens.” (p. 392)

“[T]here is just enough in the way of uncertainty about the prostitute’s legal status, whether on the street, using a private residence or while employed in an escort service or massage parlour, that the individual concerned has the sense of being a legal outcast…. In the result, while we talk of prostitution being free of legal sanction, we, in reality, use the law indirectly and capriciously to condemn or harass it, providing no safe context for its operation, except that which can be bought by the prostitute of means or, as is more likely, the well heeled sponsor or sponsors” (p. 533)

[11] Click on right hand column for HTML, and then ‘Print format’ in top right hand corner for pdf.

[12] Note: Bloc Quebecois dissented.

List of members and affiliations:

CHAIR

Yasmin Ratansi Lib

VICE-CHAIRS

Irene Mathyssen NDP

Joy Smith Con

MEMBERS

Patricia Davidson Con

Hon. Anita Neville Lib

Nicole Demers BQ

Bruce Stanton Con

Johanne Deschamps BQ

Hon. Belinda Stronach Lib

Nina Grewal Con

Hon. Helena Guergis Con

Hon. Maria Minna Lib

Hon. Maria Mourani BQ

Hon. Judy Sgro Lib

[13] “We find ourselves in an anomalous, some would say bizarre, situation where almost everything related to prostitution has been regulated by the criminal law except the transaction itself. The appellants' argument then, more precisely stated, is that in criminalizing so many activities surrounding the act itself, Parliament has made prostitution de facto illegal if not de jure illegal.”, per Dickson CJ at page 44

[14] 33981

Attorney General of Canada v. Downtown Eastside Sex Workers United Against Violence Society, Sheryl Kiselbach

(B.C.) (Civil) (By Leave)

Charter of Rights – Civil Proceedings – Parties – Standing – Test for public interest standing– Parameters for granting public interest standing – Assessing whether there is another reasonable and effective way to bring constitutional issues before courts for the purposes of determining whether to grant public interest standing – Circumstances in which public interest litigants can bring challenges to government legislation or action – Relevance of the nature of the constitutional challenge to the assessment of whether there are other reasonable means by which a challenge may be brought – Whether Court of Appeal has weakened test for public interest standing by adopting a relaxed approach that will be an ineffective limit on when standing should be granted.

The respondents commenced an action challenging the constitutional validity of Criminal Code sections 210 (keeping and being within a common bawdy house), 211 (transporting a person to a common bawdy house), 212 (procuring and living on the avails of prostitution) except for ss. 212(1)(g) and (i), and 213 (soliciting in a public place) on the basis these provisions infringe ss. 2(b), 2(d), 7 and 15 of the Charter of Rights and Freedoms. Neither respondent is currently charged with any of these offences. The applicant brought an application in part seeking to have the action dismissed for lack of standing.

December 15, 2008 Supreme Court of British Columbia (Ehrcke J.) 2008 BCSC 1726

Claim dismissed for lack of standing

October 12, 2010 Court of Appeal for British Columbia (Vancouver) (Saunders, Neilson, Groberman [dissenting] JJ.A.) 2010 BCCA 439 CA036762

Appeal granted, order dismissing action set aside, matter remitted to Supreme Court of British Columbia

December 13, 2010 Supreme Court of Canada

Application for leave to appeal filed

Granted March 31, 2011

[15] Oct 19 2010:

48% agree with the decision of the Ontario Superior Court, 34% disagree

39% agree with the Federal appeal of the decision, 43% disagree

10% would only punish clients, 1% would only punish prostitutes, 36% both, and 45% believe adults should be allowed to engage in consensual prostitution

54% agree with letting prostitutes work indoors, 34% disagree

49% would support decriminalisation, 24% would prohibit it, 15% would keep the status quo

Nov 27 2009:

8% would only punish clients, none only prostitutes, 34% both, 48% believe in consensual prostitution

60% agree with letting prostitutes work indoors, 30% disagree

50% would support decriminalisation, 25% would prohibit it entirely, 16% would keep the status quo

41% believe the laws are fair, 41% unfair

[16] Charges dropped

[17] s. 210 (keeping and being within a common bawdy house), s. 211 (transporting a person to a common bawdy house), s. 212 except 212(1)(g) and (i) (procuring and living on the avails of prostitution), and s. 213 (soliciting in a public place)

[18] An Angus Reid Poll published August 15^th2007:-

Angus Reid Strategies asked 1,030 British Columbians: Do you think prostitution should be legal in B.C.?

59 per cent said yes (66 per cent of males, 51 per cent of females).

29 per cent said no (22 per cent of males, 35 per cent of females).

13 per cent said not sure (11 per cent of males, 14 per cent of females).

In June 2006, the same firm asked Canadians ‘Do you think Prostitution is immoral?’, 68% replied yes (59% men, 76% women)

[19] Mary McDonald Essay, BC Civil Liberties Association

[20] Appealed to Supreme Court of Canada. Agreed to hear, 2011