Towards a Paradigm Shift

Sex exploitation and trafficking would not thrive if the demand and supply for sexual services did not exist. Providing sex to another individual in return for payment is prostitution. If we take away all the hype and glamour that equates sexual exploitation and sex trafficking to modern day slavery, we are left with the simple definition of prostitution.

However, there is a stigma attached to prostitution. Who wants to save a prostitute? They got themselves there in the first place and it is between two consenting adults. What we are fighting against is sex exploitation and sex trafficking – it is different than prostitution.

Unfortunately, this is the mindset that many individuals can have about prostitution. They do not realize that prostitution is at the core of sexual exploitation and sex trafficking. Therefore, the fight against modern day slavery is really a call for the end of the oldest oppression in the world – Prostitution.

Almost 8 years ago a subcommittee was formed to discuss the sex trade industry in Canada. The issue at hand was to improve the safety of sex trade workers and communities and to make necessary recommendations to reduce exploitation and violence in the sex trade industry. Representatives from each of Canada’s political parties were part of the subcommittee. These representatives were elected Members of Parliament and, in turn, represented the voice of the people who elected them. These Parliamentarians established a dialogue between different interest groups including: law enforcement; not for profit organizations; academics; and sex trade workers. These individuals presented their knowledge, experience, opinions and views about prostitution and the current laws in Canada to the subcommittee. The result of listening to weeks of testimony across the country led to the creation of a report entitled: The Challenge of Change: A Study of Canada’s Criminal Prostitution Laws.

This report not only summarizes various testimonies heard from the subcommittee, but also contains recommendations of how to address the issue of prostitution in Canada and views the political parties in Canada have regarding prostitution.

We have provided a summary of this report entitled: A Canadian Perspective on Prostitution. We have also address key points in the report entitled: The Many Different Views of Prostitution.

We do not endorse the view that the majority of the subcommittee has adopted regarding prostitution and the legal framework that Canada may be heading towards. The true battle ahead is a paradigm shift in how the majority of Canadians view prostitution and those who are victimized by it, as well as the social consequences.

There is a great chasm between the understanding of what prostitution is and its social consequences. Unfortunately, this great divide may have unsettling future legal ramifications Canadians have yet to come face to face with. The constitutional challenge we summarized under: Prostitution in Canada and Constitutional Challenge of the Prostitution Law is a glimpse of where Canada may be headed.

So what can you do? How can you be part of the paradigm shift? Arm yourself with knowledge about the different views fellow Canadians have about prostitution, form discussion groups to talk about the issue and brainstorm, write letters to Parliamentarians outlining your views and opinions on prostitution, and keep checking back here at A Million Acts Of Sustainability – we are in the midst of developing an education and awareness package that will equip you to become a crusader for human sustainability! With your help, we will be instruments of change, and we will lift up those who have fallen victim to sexual oppression into freedom and equality.

The Many Different Views of Prostitution

What are your views on prostitution? What a loaded question! Most people don’t know where to start. The many different views of prostitution across Canada are compiled in a Government of Canada report entitled: The Challenge of Change: A Study of Canada’s Criminal Prostitution Laws, 2006. Here we highlight and address some of the major points of view conveyed in the report.

Silhouetted against the evening sunset, a feminine figure dressed in provocative clothing attracts lustful glances while waiting on a street corner. The stereotypical street prostitute – surprisingly, they only account for a small percentage of prostitutes (5-20%) in Canada. The rest are “hidden” in escort agencies, massage parlors, strip clubs, or operating from apartments, condos, and homes in different communities.

Street prostitutes are often the most vulnerable, not only in terms of facing various hardships such as poverty, homelessness, and addictions, but they are also the ones most likely to be criminalized. This is due to their lifestyle and that they are visible to law enforcement officials. These known facts prompt individuals to advocate for decriminalizing the operation of bawdy houses. They make the case that bringing prostitution indoors is safer since they can hire security personnel and screen clients.

Hear no harm + See no harm = Safe?  Does not the majority of domestic violence and rape occur indoors? Will consumers concerned about their own anonymity and who are eager for sex disclose information truthfully to a bawdy house manager? Would an establishment attract customers if they knew they were being recorded on closed circuit TV or watched by a “security guard”? To our knowledge, there is no research in Canada that suggests indoor prostitution is safer and this is reinforced by what is conveyed in The Challenge of Change: A Study of Canada’s Criminal Prostitution Laws.

The Challenge of Change: A Study of Canada’s Criminal Prostitution Laws specifically makes the case that it is focusing on adult prostitution. Yet it reports that prostitutes’ first experience with selling sex is between 14 – 18 years of age in Canada. Aside from age what is the difference between a child prostitute versus an adult prostitute? All life is valuable. Dividing prostitution based on age only serves to confuse the issue of prostitution with the concepts of consent and free will.

Not surprisingly, the majority of the subcommittee that formulated The Challenge of Change: A Study of Canada’s Criminal Prostitution Laws report supported the view that “sexual activities between consenting adults that do not harm others (whether or not payment is involved) should not be prohibited”. They consider prostitutes, 18 years or older, consenting adults. Adult prostitutes know the ramifications and consequences of their actions, they have free will, they chose to sell their bodies as merchandise and it should be allowed so long as they do not harm others.

Regrettably, they do not understand what human sustainability is.  Human sustainability is not placing more value on one life versus another. All life is valuable – not just our own but others as well.

  • If individuals entered prostitution underage and continue to sell sex into adulthood, is their consent predicated on free will?
  • If an individual is destitute or addicted and desperate for money, is their consent predicated on free will?
  • There are many research studies citing that anywhere from 89-95% of prostitutes urgently want to escape from prostitution. If this is the case, how can we possibly view prostitution as just a mere exchange of sexual services between consenting adults?
  • Is consent predicated on free will the same as giving in?
  •  If prostitutes have expressed a desire to escape from their plight how can we deny their plea for help?
  • Now that you know that one of the ‘consenting’ adults wants desperately to escape from prostitution can you still turn away?

Prostitution is degrading and dehumanizing. This degradation and dehumanization transcends age, gender, ethnicity, religious beliefs, etc… The greatest gift we can give individuals who have fallen victim to prostitution is their freedom. To do so is to break down the stigma of prostitution, cast aside the notions that continue to fuel the stigma, and begin to see prostitution in a different light.

A Canadian Perspective on Prostitution

We have provided a summary of the Government of Canada report entitled: The Challenge of Change: A Study of Canada’s Criminal Prostitution Laws below.

The original document can be downloaded from the following link:

www.parl.gc.ca/Content/HOC/…/391/…/391_JUST_Rpt06-e.pdf

Pursuant to Standing Order 108, a subcommittee was established to discuss the prostitution laws and present its observations and recommendations. This subcommittee was composed of 2 members of the Conservative Party, 2 members of the Liberal Party, 1 member of the Bloc Quebecois, and 1 member of the New Democratic Party.

The subcommittee outlined that they would be dealing with matters involving adult prostitution from the outset. They outlined that adult prostitution is not illegal in Canada, yet most of the activities surrounding prostitution make it impossible to engage in without committing a crime. They also note that those most likely to be criminalized are primarily vulnerable women facing various hardships, such as poverty, homelessness and drug dependency. Moreover, these individuals most often engage in the most dangerous type of prostitution: street prostitution.

The subcommittee heard testimony from ~300 witnesses ranging from sex workers to law enforcement to obtain a profile of prostitution in Canada. They present that although it is very difficult to estimate the numbers, there are many types of prostitution in Canada. It was clearly noted that street prostitution only accounts for a very small percentage (5-20%) of all prostitution activity in the country. Coupled with the variation in prostitution type is the wide range of settings where prostitution takes place. Thus, the prostitution scene in Canada was described as situations where females are in the position of “sexual slavery or survival sex” (due to homelessness, poverty, to cope with a drug habit, mental illness or a violent past) to “bourgeois styles of the sex trade, where both adults are consenting.”

This led to the issue of choice. Three circumstances emerged from the testimonies the subcommittee heard: a) individuals choose to engage in sex work on their own free will; b) individuals are forced into sex work from a third party; c) the lack of alternatives lead an individual to engage in sex work.

This ultimately led to shaping what the demographic profile of prostitution is in Canada. However, there is a caveat of this demographic as much of the research and not-for-profit, public and law enforcement interactions are with street prostitutes, which only make up a small percentage of prostitutes in Canada. What was mentioned in the report is that based on information the subcommittee received from witness testimony, the first experience with prostitution is between the ages of 14-18 years of age, where females represent 75-80% of individuals practicing prostitution. Of the females that are involved in prostitution ~70% are of Aboriginal origin. The 20% of individuals engaging in prostitution, but are not females, include males, transvestites and transgendered person. There was also clear indication from witness testimony that most male off-street prostitution takes place in private establishments and clubs.

In establishing the demographic of prostitution in Canada, the discussion then led to health and addictions, violence and organized crime. Of the number of witnesses the subcommittee heard from there is reason to believe that for some individuals the relationship between drugs and prostitution are inseparable, especially at the street level. Moreover, it was cited that individuals who engage in off-street prostitution are less likely to use drugs given that it is strongly discouraged by establishments and escort agencies. As such, prostitutes who are addicted to drugs are not surprisingly in poor health and often are the most marginalized and are targeted for crimes of violence.

The violence directed towards prostitutes is not only something that street prostitutes experience, however the information received by the subcommittee suggested that indoor prostitution is safer than street prostitution. Of the homicides involving prostitutes, it was pointed out that 75% of individuals who kill prostitutes are the clients themselves. Some witnesses that the subcommittee heard from also had the view that the rise in the number of prostitute homicides was due to the addition of section 213 of the Criminal Code (prohibiting communication in a public place for the purposes of prostitution). Witnesses further attributed that the violence against prostitution stems from the stigma media creates and the attitude of law enforcement.

Interestingly, the report points out that although the majority of public believes that prostitution is driven by organized crime, this was not supported by any testimony heard by the subcommittee. Moreover, although the majority of the public also believes that those engaging in prostitution are forced into it by a third party, this is by no means in the majority, with respect to adult prostitution. Paradoxically, the subcommittee does acknowledge that there is “no doubt trafficking in persons is at play in prostitution activities, and that trafficked persons are among the most vulnerable in prostitution.” (Aside: Based on what we know about human trafficking today, many international and government organization point to the existence of internationally organized crime networks that are established to traffick individuals around the globe for sexual exploitation or forced labour).

Aside from the demographics and causes of prostitution, the testimonies the subcommittee heard from contradicted each other with respect to the effects of prostitution. Individuals held the view that prostitution is an act of violence against all women, to prostitution is an exchange of sexual services between consenting adults, which is not a problem in and of itself. Therefore, the subcommittee stipulated that it is not the act of prostitution that threatens communities, but the criminal activities individuals are involved in. As such, the effect of prostitution in and of itself on the individual is highly controversial ranging from moralistic to liberation/self-control. However, it was noted by the subcommittee that street prostitution does impact the community in that it increases neighbourhood traffic, noise levels, and litter, while decreasing business, safety, and wellbeing.

Stemming from the discussion involving the profile, causes, and effects of prostitution the subcommittee then turned to addressing the efficacy of the prostitution laws in Canada. The information the subcommittee received led to the conclusion that the laws need to be changed. The majority of witnesses the subcommittee heard from thought that section 213 was not effective in promoting the safety of prostitutes and communities. There was much discussion around the disparity of charges, where prostitutes themselves were more likely to be charged than clients. It was also noted that section 210 – 212 were rarely enforced and accounted for only a very small percentage (~1-10%) of all prostitution-related incidents. Witnesses who were sex workers or not-for-profit organizations advocating sex workers, made the case that section 213 particularly decreased their safety as it pushed prostitutes into remote areas out of touch with resources and did not allow them to effectively screen their clients. These individuals also conveyed to the committee that: a) Section 210 (prohibiting the operation of a bawdy house) prevented prostitutes from creating a stable, safe environment and complicated the social lives of individuals who decide to sell sex from their homes; b) Section 211 (prohibiting the transport of an individual to a bawdy house) prevented prostitutes from establishing working relationships with individuals they felt could safely transport them from one place to another; and c) Section 212 (prohibiting living wholly or in part on the avails of prostitution of another) prevented prostitutes from seeking out a relationship with a manager or employer that could benefit them. Therefore, the overarching position sex worker and sex worker advocate witnesses took was that the current prostitution laws decrease their personal safety and security, jeopardizes their economic security, and increases the stigma towards their profession.

The discussions stemming from the prostitution laws in Canada led the subcommittee to hear testimony from individuals who spoke about the laws in Sweden, Germany, The Netherlands, Australia, and New Zealand and the outcome of these laws. From the testimonies on prostitution laws from other countries, the subcommittee felt that these laws would not provide a solution to prostitution in Canada, and that more information was necessary.

The subcommittee therefore outlined a series of recommendations. All members of the subcommittee agreed that the Government of Canada should ensure that commercial sexual exploitation of minors and trafficking for purposes of sexual exploitation should be subject to severe penalties.

The subcommittee all agreed that the status quo is unacceptable as they are unequally applied.

It was further recommended that: a) the Government of Canada establish and develop education campaigns and programs to prevent people from entering prostitution and raise awareness of young people and children, and establish exit programs for prostitutes; b) the Government of Canada fund research to obtain a clearer picture and gain a better understanding of prostitution in Canada; c) the Department of Justice coordinate research on prostitution with other levels of government, institutes, NGOs and sex workers in other countries in an effort to develop a Canadian approach to addressing prostitution; and d) measures be taken to improve the safety of individuals selling sex and assisting these individuals to exit prostitution through income support, transfer payments, education and training, poverty alleviation, health and addiction treatments.

Needless to say, not all of the committee agreed upon each of the recommendations and points of view brought forth in the report. The Liberal, New Democratic, and Bloc Quebecois Parties believe that the current legal approach to prostitution in Canada is contradictory and does more harm than good. They believe it marginalizes prostitutes and often leaves them isolated and afraid to report abuse and violence to law enforcement. These Parties further view “sexual activities between consenting adults that do not harm others (whether or not payment is involved) should not be prohibited.” The Conservatives on the other hand, view prostitution as “a degrading and dehumanizing act, often committed and controlled by coercive or opportunistic individuals against victims who are frequently powerless to protect themselves from abuse and exploitation.” They believe that the most realistic, compassionate and responsible approach in dealing with prostitution is to view most prostitutes as victims. The Conservatives further believe that prostitution has social costs for all citizens, in particular Canadian women. The Conservatives do agree that the status quo with respect to the enforcement of laws is unacceptable, however disagrees that decriminalization is the solution.

What is love?

Love is patient, love is kind. It does not envy, it does not boast, it is not proud.

It does not dishonor others, it is not self-seeking, it is not easily angered, it keeps no record of wrongs.

Love does not delight in evil by rejoices with the truth. It always protects, always trusts, always hopes, always perseveres.

Love never fails.

1 Corinthians 13: 1-8

Constitutional Challenge of the Prostitution Laws

The following is our attempt at providing a thorough and concise summary of the following legal document:

Canada (Attorney General) v. Bedford, 2012 ONCA 186. Date: March 26, 2012. Court of Appeal for Ontario: Doherty, Rosenberg, Feldman, MacPherson and Cronk JJ.A BETWEEN Attorney General of Canada (Appellant) and Attorney General of Ontario (Appellant) and Terri Jean Bedford, Amy Lebovitch, and Valerie Scott (Respondents)

Please note that the original legal document can be found at:

http://www.canlii.org/en/on/onca/doc/2012/2012onca186/2012onca186.html

 

Ms. Bedford, Ms. Lebovitch and Ms. Scott brought an application to the Superior Court of Justice under the Rules of Civil Procedure, seeking declaration that Sections 210, 212 (1)(j), and 213 (1)(c) of the Criminal Code are unconstitutional. The sections are as follows:

210. (1) Every one who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

(2) Every one who

(a) is an inmate of a common bawdy-house

(b) is found, without lawful exercise, in a common bawdy-house, or

(c) as owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or control of any place, knowingly permits the place or any part thereof to be let or used for the purposes of a common bawdy-house,

is guilty of an offence punishable on summary conviction.

 

212. (1) Every one who

(j) lives wholly or in part on the avails of prostitution of another person,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

 

213. (1) Every person who in a public place or in any place open to public view

(c) stops or attempts to stop any person or in any manner communicates or attempt to communicate with any person for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute

is guilty of an offence punishable on summary conviction.

 

The respondents (Bedford, Lebovitch and Scott) argued that these provisions deprive them of the right to life, liberty and security of the person protected by section 7 of the Canadian Charter of Rights and Freedoms, that the deprivation is not in accordance with the principles of fundamental justice, and that the provisions cannot be justified under Section 1 of the Charter. They also argued that Section 213(1) of the Criminal Code violates the guarantee of freedom of expression in Section 2(b) of the Charter and cannot be justified under Section 1 of the Charter.

 

The sections referred to in the Charter are as follows:

  1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
  2. Everyone has the following fundamental freedoms:

(b) freedom of…expression

  1. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

 

The application judge held that these provisions are unconstitutional and must be struck down because they are not in accordance with the principles of fundamental justice preserved in section 7 of the Canadian Charter of Rights and Freedoms.

The justification of the application judge’s ruling regarding why each of the provisions are unconstitutional can be summed up as follows:

Section 210 – The application judge concluded that this provision is really to combat neighbourhood disruption and safe guard public health and safety. This provision has a drastic impact on the respondent’s security of the person by preventing them from working in the relative safety of a permanent indoor location.

Section 212 – The application judge concluded that this provision really applies to those who exploit prostitutes.

Section 213 – The application judge concluded that this provision is really only in place to curtail street solicitation and social nuisance.

The application judge’s remedy to is to strike down the living on the avails and communication provisions (Sections 212 and 213). She provided the remedy of striking down the prohibition on bawdy-houses for the purpose of prostitution by striking the word “prostitution” from the definition of  “common bawdy house”. Therefore, prohibition on bawdy-houses for “acts of indecency” still apply; however bawdy-houses can be used for purposes of prostitution.

 

Government Response

The Attorney General of Canada and Attorney General of Ontario opposed the application on two principal grounds. They referenced the Supreme Court’s decisions regarding the prostitution laws in the Prostitution Reference (1990) and coupled it with the principle of stare decisis. Stare decisis is the principle of binding precedent. In 1990, the Supreme Court held that the provisions of the Criminal Code (sections 210 and 213(1)(c)) did not violate the Charter. This should set the binding precedent to any further challenge. This principle can be basically summed up in Pilate’s response to the chief priests in John 19:22, “What I have written, I have written.”

The second principal ground of opposition from the Attorney General was that the respondents failed to meet their evidentiary burden of proving a violation of their section 7 Charter rights. The Attorney General argued that the challenged laws do not create the risk to prostitutes; rather prostitution itself, is inherently risky.

 

Court of Appeal for Ontario Response

The court of appeal was in agreement with the Attorney General of Canada, that regarding section 213 (1)(c) the application judge erred on the principle of stare decisis. Therefore, this provision currently stands as is. However, an appeal from the respondents regarding this ruling is allowed.

The court of appeal has recognized that the Prostitution Reference of 1990 may need to be revisited by the Supreme Court of Canada. Since 1990, the number of recognized “principles of fundamental justice” referenced in under section 7 of the Charter has expanded. The court of appeal cites that the Supreme Court was vague in articulating how the prostitution provisions did not violate the “principles of fundamental justice” in 1990. Moreover, Parliamentary response to prostitution has been inconsistent and unclear. Therefore, the application judge was left to evaluate whether the prostitution provisions infringed upon the “principles of fundamental justice” of: arbitrariness, overbreadth, and gross disproportionality.

 

An explanation of these terms is as follows:

Arbitrariness ­– is a law arbitrary? This asks whether a law has no relation to, or is inconsistent with, its legislative objective.

Overbreadth – is a law overbreadth? This asks whether a law deprives a person of his or her rights (as per section 7 of the Charter) more than is necessary to achieve the legislative objective.

Gross Disproportionality – is a law grossly disproportionate? This asks whether the deprivation of a person’s rights (as per section 7 of the Charter) is so extreme that it is disproportionate to any legitimate government interest.

 

With respect to section 210 of the Criminal Code, the court of appeal sided with the application judge’s decision that this provision is overbroad and grossly disproportionate. Therefore, the court of appeal ruled that the current bawdy-house prohibition is unconstitutional and must be struck down. However, the declaration of invalidity is suspended for 12 months to provide Parliament an opportunity to draft a Charter-compliant provision, if Parliament so chooses.

A Charter-compliant provision is an appeal to the Supreme Court to fully reconsider the purpose and effect of the criminalization of bawdy-houses for the purposes of prostitution. This basically means a re-visitation of the ruling as per the Prostitution Reference of 1990.

The court of appeal disagreed with the application judge in striking down the living on the avails provision. The court of appeal agreed with the application judge that the living off the avails of prostitution provision is grossly disproportionate. Therefore, they suggest a remedy that there be a prohibition against living on the avails of prostitution in circumstances of exploitation. As such, they conclude that the following “reading in” to the living on the avails provision will “cure the constitutional infirmity” of Section 212(1)(j) of the Criminal Code:

Everyone who lives wholly or in part on the avails of prostitution of another person in circumstances of exploitation is guilty of an indictable offence…

Of the 5 court appeal judges, 3 were in majority of supporting the document of appeal, whereas 2 disagreed with their colleagues with respect to the communicating provision. The dissenting judges believed that the communicating for the purposes of prostitution is unconstitutional and should be struck down since they believe it to deny prostitutes the right to security by not allowing them to properly screening clients. This is especially within the interest of the “most vulnerable” prostitutes (those who work on the streets).