Proposed legislation in Canada on the issue of prostitution – Bill C36

Prostitution is the practice of engaging in sexual activity with someone for payment. In Canada, prostitution is not illegal. However, there are activities related to the sex trade that are offenses under the Criminal Code of Canada. Such activities include:

  • Keeping a common bawdy-house (also known as a brothel) (Section 210)
  • Knowingly transporting another person to a common bawdy-house (Section 211)
  • Procuring and living on the avails of prostitution (Section 212)
  • Communicating in a public place for the purposes of prostitution (Section 213)

In 2009, Terri-Jean Bedford, Amy Lebovitch and Valerie Scott (sex trade workers in Canada) undertook the issue of arguing that Canada’s laws regarding prostitution-related activities were unconstitutional. Alan Young, professor of law at Osgoode Hall Law School, represented the sex trade workers in court, and specifically made the case that the following sections of the Criminal Code of Canada violated sex workers constitutional right to freedom and security:

  • Keeping a common bawdy-house (Section 210)
  • Living on the avails of prostitution (Section 212(1)(c))
  • Communicating in a public place for the purposes of prostitution (Section 213(1)(c))

In September 2010, Justice Susan Himel issued her decision to strike down Sections 210, 212(1)(c) and 213(1)(c). The Attorney General of Canada and Attorney General of Ontario appealed the decision. The appeals court upheld the ruling of Justice Himel on Sections 210 and 212(1)(c), however disagreed with her ruling on Section 213(1)(c). The case was eventually brought to the highest court in Canada to be heard. In Dec 2013, the Supreme Court of Canada found all three sections (Section 210, 212(1)(c) and 213(1)(c)) of the Criminal Code to be unconstitutional.

The Supreme Court gave the Canadian Government 1 year to create a legislative response (create new law(s)) in line with the ruling). In March 2014, the Department of Justice issued a public consultation on prostitution-related offences in Canada with the intent of creating new legislation that would accommodate views held by Canadians. From this public consultation Bill C-36 was introduced in Parliament on June 4, 2014. Bill C-36 is currently in the second reading stage.

The objective of Bill C-36 is to reduce the demand for prostitution by discouraging the entry into prostitution and deterring participation in prostitution, with the ultimate endpoint of abolishing it so that the harms of the practice no longer exist. Bill C-36 views prostitution as a form of sexual exploitation that negatively impacts women and girls, and therefore criminalizes those who purchase sex, while protecting those who sell sex.

Bill C-36 proposes to criminalize:

  1. The purchase of sexual services for consideration or communicating in any place for the purpose of purchasing sexual services
  2. Advertising the sale of sexual services in print media or advertisement on websites
  3. The receipt of financial and/or material benefit from the prostitution of others in exploitative circumstances (which includes exploitative participation in business activities involving prostitution where third parties profit). Exploitative circumstances would include the use of threats, violence, intimidation, coercion, abuse of trust, power or authority, and the provision of intoxicating substances
  4. The purchase of sexual services, but not the sale of sexual services. Those who sell their own sexual services will be treated as victims who need support and assistance
  5. The procurement of sexual services, where procurement constitutes persuading or causing a person to offer sexual services; to recruit, hold, conceal, or harbour a person to offer sexual services; and to exercise control, direct or influence the movement of a person for the purpose of facilitating the purchase of sexual services
  6. Communicating for the purposes of selling sexual services in public places, or in any place open to public view, that is or is next to a place were persons under the age of 18 are reasonable expected to be present and therefore could be exposed to the correspondence.

The proposed bill ultimately provides focus to law enforcement to direct attention to purchasers of sexual services, as well as on third parties who exploit individuals to sell sexual services. As such, Bill C-36 does not prevent those who choose to sell sex from doing so in fixed indoor locations, or hiring bodyguards or drivers, who may enhance their safety.

Such proposed legislation to criminalize the demand-side of prostitution is not unique to Canada, as many other countries currently have such legislation in place, i.e. Sweden, Norway, Iceland, Ireland and France.

Further information regarding Bill C-36 can be found by accessing the following links:

http://www.parl.gc.ca/LegisInfo/BillDetails.aspx?Language=E&Mode=1&billId=6635303

http://www.justice.gc.ca/eng/rp-pr/other-autre/protect/p1.html